1921797 (Migration) - [2019] AATA 6776

1921797 (Migration) [2019] AATA 6776 (30 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1921797
MEMBER:Kira Raif
DATE:30 September 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Statement made on 30 September 2019 at 7:36am

CATCHWORDS
MIGRATION – cancelation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – procedural fairness – notice requirements – ground for cancellation – risk to safety of Australian community or individual – charged with a number of offences involving inappropriate sexual conduct towards minors – subject to an Apprehended Violence Order (AVO) – consideration of discretion – no compelling need to remain in Australia – degree of hardship – non-refoulement obligations – best interests of children – character references – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 119, 127, 494B
CASES
Gong v MIBP [2016] FCCA 561
Sales v MIMA [2006] FCA 1807
Tien v MIMA (1998) 89 FCR 80
Zhao v MIMA [2000] FCA 1235

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

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 19 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of Colombia, born in [month] [year]. He was granted a Class WA Bridging A visa (BVA) on 9 May 2017. On 2 July 2019 the applicant was issued with Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant did not provide a response to the NOICC and his visa was cancelled on 19 July 2019. The applicant seeks review of the delegate’s decision.
In his written submission to the Tribunal of 24 September 2019 the applicant stated that he did not respond to the NOICC because he did not receive it on time. The applicant refers to the reasoning in Sales v MIMA [2006] FCA 1807 and states that he was not given procedural fairness. The applicant also notes that the NOICC was not sent to his migration agent who acted in his substantive visa application and the associated bridging visa application. The applicant states that the NOICC and the notification of the cancellation did not comply with s.494B of the Act. The Tribunal acknowledges these submissions but is mindful that a failure to properly notify an applicant does not affect the validity of the primary decision (see s.127(3) of the Act). Here, the applicant was notified of the cancellation decision, made an application for review and that application has been assessed as a valid application that was made within the prescribed timeframe. The applicant has been given the opportunity to provide his arguments and submissions before the Tribunal. In such circumstances, the Tribunal is satisfied that the applicant has been afforded procedural fairness by the Tribunal.
The applicant appeared before the Tribunal on 26 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from two of the applicant’s friends. The Tribunal hearing was conducted with the assistance of an interpreter. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Jurisdiction
The applicant’s representative submits that there was no compliance with the NOICC under s.119 and therefore, the cancellation is invalid. The applicant relies on the reasoning in Zhao v MIMA [2000] FCA 1235 and submits that the Tribunal must be satisfied there was compliance with s.119 and that the notification was procedurally fair. The representative submits there must be strict compliance with the issuance of the NOICC for the cancellation power to arise and in this case, the statutory requirements have not been complied with. The representative notes that in this case, the NOICC was sent to the applicant directly at the Correctional Centre, which was not the address that was given by the applicant and not his last known address. The delegate never followed up and had not checked whether the NOICC was received. The representative also notes that the applicant was only given 5 working days to respond to the NOICC which, in his case, was unreasonable and inadequate. The applicant was represented by another agent and the NOICC should have been sent to the agent – as was all previous correspondence – and the applicant submits the delegate failed to comply with the requirements of s.119, so that s.124 cannot be invoked.
The Tribunal acknowledges these submissions but has formed the view that it is not required to determine whether the delegate failed to afford the applicant with procedural fairness or whether the statutory requirements relevant to the cancellation have been complied with. This is because the errors that may invalidate a process can be remedied by the Tribunal. Specifically, the Tribunal can ‘cure’ a defect in natural justice or procedural fairness that occurred in the delegate’s decision, such as a defect in the ss.119-121 notice requirements, through their own procedural fairness mechanisms, such as ss.359A and 424A.[1]
[1] See Zubair v MIMIA (2004) 139 FCR 344 at [32], MIMIA v Ahmed (2005) 143 FCR 314 at [3], Uddin v MIMIA (2005) 149 FCR 1 at [55]-[58], Krummrey v MIMIA (2005) 147 FCR 557. See also Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219.
The representative submits that authorities such as Zubair and Ahmed only apply if there was substantial compliance with the requirements of s.119, which did not occur in this case, but the Tribunal does not consider that the cases make such a distinction.
The Tribunal finds that the applicant made a valid application for review. The Tribunal is satisfied that it has complied with its procedural fairness obligations. The Tribunal finds that it has the jurisdiction to consider the substantive issues that arise on review.
The Tribunal also notes that the applicant had initially suggested that the Tribunal adjourn the review until the outcome of his bail application or his criminal proceedings. The applicant then confirmed that he was not seeking a further adjournment and agreed to the Tribunal making the decision on review.
Relevant law
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.
A visa may be cancelled under s.116(1)(e) if the Minister 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. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the primary decision record which contains the following information.
The applicant was granted the BVA on 9 May 2017. On [date] May 2019 the NSW Police charged the applicant with the following offences:
a.Sexual intercourse without consent
b.Intentionally carry on sexual act with or towards a child under the age of 10 years
c.Carry out sexual act with another person without consent (domestic violence).
The primary decision record refers to the NSW Police Facts Sheet and the information from the police which indicates that the alleged victims were two children, the applicant’s [age] year old stepchild [Child A] and his [age] year old biological child [Child B]. The Police Facts Sheet indicates that:
a.On [date] May 2019 the applicant allegedly attempted to engage in sexual intercourse with [Child A] at his place of residence
b.It is alleged that the applicant carried out another inappropriate sexual act in the presence of both [Child A] and [Child B].
In his statutory declaration dated 24 September 2019 the applicant outlined his background and immigration history and provided a number of documents including evidence of his past study and military service, his marriage certificate, evidence of past employment and his police certificates from Australia and Colombia. The applicant states that he received the NOICC and the notification of cancellation on 29 July 2019 and had not seen these documents previously. He did not respond to the NOICC because he did not receive it and did not know that his visa would be cancelled.
The applicant states that he has not been charged with or convicted of any offences in Australia or Colombia. He states that he disputes the charges that led to the cancellation of the visa and intends to plead not guilty. He is in the process of obtaining legal advice to defend the criminal charges. The applicant states that his relationship with his wife has always been loving and respectful, they had always treated each other with respect, there had never been any violence between them and he had never been convicted of a crime of a violent nature against a woman or a child. The applicant states that he does not know if there is an AVO against him and his wife never lodged any complaint against him of domestic violence.
The applicant states that he is not a risk to anyone in Australia and has never been in any other trouble with the police or legal authorities in Australia or elsewhere. There is no risk of him offending in the future or engaging in any criminal conduct. He intends to apply for bail if the cancellation is set aside and will abide by bail conditions so he can prove his innocence.
At the commencement of the hearing, the applicant provided to the Tribunal additional evidence. This includes communication between the applicant’s lawyer in relation to his former spouse, and information indicating that the applicant has not applied for bail, as well as other materials.
The applicant confirmed to the Tribunal that his bridging visa was granted on the basis of an application for a [permanent] visa. The applicant said that this application is still ongoing and the applicant continues to be a part of that application.
In oral evidence to the Tribunal the applicant stated that he is not guilty and has pleaded not guilty. The matter is coming up for a mention [in] October 2019 and there is no trial date. The applicant said that he has never been charged with any offences before and has never had any problems with the law. The applicant said that he is yet to receive a brief of evidence.
In relation to the circumstances of the offence, the applicant told the Tribunal that they were having a party at his place with his family and friends and drinking alcohol. At night, his step-daughter came in late with her boyfriend and was upset when he complained to her mother, and she accused him, which was not true. In relation to the other charges, the applicant said that his young daughter was asleep at 3 am and he does not understand why she was involved.
The applicant told the Tribunal that somebody told him there may be an AVO in relation to his step-daughter but he has not seen any papers and there is no AVO in relation to other family members.
The applicant states that the charges do not reflect who he is and he is not a danger to anyone, including minors.
The applicant confirmed that he had not applied for bail and was waiting for the outcome of the bridging visa application before applying for bail. There is before the Tribunal advice from the applicant’s criminal lawyer which confirms that the applicant had not applied for bail.
The applicant told the Tribunal that his relationship with his wife is continuing and she has visited him in jail. The Tribunal is mindful that the applicant presented no evidence of his relationship with his spouse being ongoing and the applicant’s partner has not attended the Tribunal hearing to confirm the existence of the relationship. The applicant subsequently stated that he was not sure if the relationship was ongoing as he has not had contact with his partner for some time. The Tribunal acknowledges that the applicant presented to the Tribunal copies of the written communication between his criminal lawyer and his immigration lawyer which refers to the applicant’s spouse not believing him to be guilty and thinking the charges were made up. The Tribunal is not prepared to accept this evidence, which is hearsay, not provided by the parties involved and is not supported by any evidence, most significantly, by the spouse herself. The applicant told the Tribunal that his relationship with his wife has ‘cooled down’ and she has distanced herself from the relationship and in such circumstances, the Tribunal does not accept the claims that his wife believes him to be innocent and is fully supportive of the applicant.
The Tribunal finds that the applicant has been charged with very serious offences involving inappropriate sexual conduct towards minors. The Tribunal acknowledges that the applicant has pleaded, or intends to plead, not guilty and his claim that he is innocent and such conduct would be out of character. The applicant refers to the presumption of innocence. The Tribunal has also given regard to the evidence of the applicant’s friends who refer to his good character. However, in Gong v MIBP [2016] FCCA 561, Smith J considered that the ground for cancellation can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of a number of charges against the visa holder. The Court held that there is no requirement that there be a determination of the guilt of a visa holder. The Tribunal also places weight on the fact that the applicant, on his own evidence, is the subject of an AVO in relation to his step-daughter. That may suggest that an assessment has been made that the applicant may pose a risk to that person. The applicant claims that the existence of the AVO would ensure his compliance with the laws but the Tribunal is not satisfied this is so.
The Tribunal accepts that there is no evidence that the applicant has ever been charged with any other offence or that he has breached the law in the past. That does not detract from the seriousness of the present charges.
The Tribunal also acknowledges that the applicant is presently in criminal detention. He has also informed the Tribunal that he has not had any visits from his wife and daughter. In such circumstances, the risk of re-offending is minimal to non-existent. However, the applicant’s evidence to the Tribunal is that if his visa is reinstated, he intends to apply for bail and seek access to his daughter and he believes such access will be granted. If that were to occur, the Tribunal considers that there is a possibility of the applicant reoffending or engaging in appropriate conduct in the future.
Having regard to the applicant’s circumstances, the Tribunal has formed the view that there is a possibility of future misconduct, even if such possibility may not be significant. The laying of the charges, the existence of the AVO, the nature and seriousness of the offending, all suggest that such a possibility exists. The Tribunal finds that the applicant’s presence in Australia may be a risk to the safety of a segment of an Australian community (women or young women and children) or to the safety of an individual (the applicant’s step-daughter). For these 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
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’.
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 applicant first travelled to Australia in June 2008. The primary decision record indicates that the applicant last entered Australia in March 2019 to remain in Australia with his family as a holder of a [temporary visa]. In May 2017 the family applied for [a permanent] visa and on the basis of that application the applicant was granted a BVA. The Tribunal accepts that the applicant is fulfilling the purpose of the bridging visa which enables him to await the outcome of the substantive visa application, although the Tribunal is mindful that the applicant would be able to await the outcome of that application whether or not he holds a Bridging A visa. The cancellation of the present visa does not affect the applicant’s substantive visa application.
The applicant told the Tribunal that he has been living in Australia since 2008 and has been given opportunities in Australia which he would not have in his home country and he had hoped he would be allowed to stay in Australia. The Tribunal notes, however, that the applicant has never held a permanent visa and the Bridging A visa does not allow the applicant to remain in Australia permanently.
The applicant states that he has a compelling need to remain in Australia because his only biological daughter is in Australia. However, the applicant also told the Tribunal that he has not had any contact with his daughter since May 2019. The applicant referred to the AVO but concedes that the AVO does not extend to his younger daughter, so it does not preclude his contact with his daughter. The applicant states that if released from detention (assuming he is granted bail), he would have to consider the conditions of his bail and speak to his lawyer and his wife before he can determine if he can have contact with his daughter. The Tribunal acknowledges the applicant’s evidence that in the past he had a close relationship with his daughter. However, the applicant’s evidence is that his wife has been reluctant to see him or communicate with him and has not allowed him to see his daughter. There is no evidence from the applicant’s spouse confirming that she has any intention of continuing her relationship with the applicant or allowing such relationship with his daughter. In such circumstances, the Tribunal is not satisfied that the applicant’s future relationship with his daughter would be the same, even if his visa is reinstated. The Tribunal is not satisfied the presence of his daughter in Australia constitutes a compelling need to remain in Australia.

As for his step-daughter, the Tribunal notes that there is an AVO in place which prohibits the applicant from having contact with his step-daughter.
The extent of compliance with visa conditions
There is no evidence of any non-compliance with visa conditions and the applicant states in his statutory declaration of 24 September 2019 that he always complied with all conditions of his visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
If the visa is cancelled, and if the applicant is not granted another visa, the applicant may be an unlawful non-citizen and may be detained. Such detention may be a lengthy one, if the processing of the substantive visa application is delayed or if the visa is refused and the applicant chooses to pursue review. The Tribunal considers that a period of detention, particularly a long period, may cause considerable hardship to the applicant. However, the Tribunal is mindful that the applicant’s present detention is due to the fact that the applicant has not been granted bail and not because of the cancellation of his bridging visa. That is, it is not the cancellation of the bridging visa that has resulted in the applicant’s detention. It is only in circumstances where the applicant is granted bail and is released from criminal detention that the cancellation of his visa would result in his ongoing detention.
The applicant submits that there would be hardship if he is released from criminal detention and does not hold a visa and cannot work and support his family. However, the Tribunal cannot speculate on whether or not the applicant would be granted bail and on what conditions. The applicant had not applied for bail. His application has not been considered. It is neither possible nor appropriate for the Tribunal to predict what the outcome of such an application may be. At the time of this decision, the applicant has not been granted bail and will remain in criminal detention whether or not his visa is reinstated.
In his written declaration, the applicant states that he has no other family in Australia but he has strong ties through friends and the community. The applicant states that he would find it difficult to find employment in Colombia and would find it difficult to rely on his elderly parents. Even if that is the case, the Tribunal is mindful that the visa in question is a bridging visa which would not allow the applicant to remain in Australia permanently. If the applicant continues to be an applicant for a permanent visa and if he is granted such a visa, the applicant may remain in Australia. If that or another visa is not granted, the applicant would have no visa to remain in Australia despite his ties to this country. A bridging visa is not designed to allow for an applicant’s long term residence in Australia.
In oral evidence the applicant states that it would be difficult for him to be separated from his family because they always thought they would have a future together. The Tribunal does not accept that evidence, given the applicant’s claims in oral evidence that his wife is reluctant to see him, that he has not seen his daughter for months and that he is uncertain whether his relationship with his wife is continuing.
The applicant claims that he could not get a job in Colombia and if he returns to his home country, it would be difficult for him to find a job. However, as noted elsewhere, the cancellation of the bridging visa need not result in the applicant’s removal from Australia. The applicant has an outstanding application for a substantive visa, which is not affected by the present decision, and the applicant would be able to await the outcome of that application in Australia.
The applicant claims that if his visa is cancelled and he applies for a Bridging E visa in the future, he may not be given work rights and he claims he has a compelling need to work. The Tribunal finds this submission speculative. Firstly, there can be no guarantee that the applicant will be granted bail. He may or he may not and the Tribunal is not in the position to make that assessment. At the time of this decision, the applicant has not applied for, and has not been granted bail so the applicant would remain in detention whether or not his Bridging A visa is reinstated. Secondly, it is speculative as to whether the applicant would be granted work rights if he were to apply for a Bridging E visa. The legislation allows the applicant to apply for a Bridging E visa without work limitations. The Tribunal cannot predict the outcome of such an application in the future and it cannot be said with any certainty that the applicant would not be given work rights.
The applicant also submits that Item 4001 would apply in relation to his application for the [permanent] visa and the application may be refused under Item 4001(d)(v) based on an adverse finding by the Department and the Tribunal. Again, such a finding would be speculative and premature. It is not possible to determine whether the applicant would pass the character test in relation to his [permanent] visa or whether his criminal case may be resolved by the time that application is considered, which may affect the outcome of any determination.
Circumstances in which ground of cancellation arose
The circumstances in which the ground for cancellation arises are due to the Tribunal’s finding that the applicant’s presence in Australia may be a risk to the safety of others. The applicant denies that he has committed any offence and refers to the presumption of innocence. He states that he is yet to receive the brief of evidence.
Past and present behaviour of the visa holder towards the Department
Nothing adverse is known about the applicant’s behaviour towards the Department.
Whether there would be consequential cancellations under s.140
There are no persons who would be affected by the consequential cancellation of the visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The applicant has an outstanding application for a substantive visa and that application would not be affected by the cancellation of the bridging visa.
There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention, although the Tribunal accepts that in relation to most visa categories, the applicant may be subject to the limitations imposed by s.48 and an exclusion period in public interest criterion 4013.
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
With respect to the non-refoulement obligations, the applicant states that he used to be a member of the armed forces and the situation in Colombia is not good. The applicant refers to the guerrillas in Colombia being against the military forces and states that he may be unsafe.
The Tribunal does not accept the applicant’s claims. Firstly, the applicant’s claims are vague, un-particularised, unsupported by any probative or documentary evidence and such claims have been made for the very first time in oral evidence to the Tribunal. Secondly, the applicant told the Tribunal that in the past 5 years he travelled to Colombia twice, spending 7 weeks there on the first occasion and about a month on the second occasion. The applicant states that he was careful and spent time with his family and did not have any problems during his visits, despite his past connection with the military. The applicant stated that ‘probably in the future’ there may be violence because despite the agreement with the guerrillas, they have re-armed and that may cause problems. The Tribunal finds such claims to be purely speculative and does not accept that the applicant has experienced, or will experience any harm in Colombia because of his past connection with the military or for any other reason.
With respect to the best interests of any children, the applicant states in his written submission to the Tribunal that he has always been a loving and encouraging father and takes an active role to be a role model to his daughter. He attended functions at her school and tries to take her to school when not working. He had conversations with her teachers about his daughter’s development and wants to continue to be an active figure in his daughter’s life. The applicant states that he would suffer psychologically and mentally if he is separated from his child and he believes his child would also suffer if she were to remain in Australia and he returns to Colombia and that would destroy his family. The applicant’s witnesses also referred to the applicant being a good father and step-father.
The Tribunal finds such evidence problematic. The Tribunal notes that the applicant has not presented documentary evidence of his involvement in his daughter’s life or of playing an active parental role for his daughter. There are no statements from school authorities, photographic evidence of social activities and no evidence from the child’s mother, to support the applicant’s claims. Importantly, the applicant’s evidence to the Tribunal is that he has not seen his daughter for several months and his wife has withdrawn from the relationship with him. The applicant told the Tribunal that he does not know whether his relationship with his wife continues or whether he would be able to see his daughter, if granted bail. Given the nature of the charges, and the fact that the applicant does not appear to have an ongoing relationship with his child, at least since his detention, the Tribunal is not satisfied that the applicant will play a meaningful role in his daughter’s life whether or not his visa is reinstated.
Importantly, the Tribunal considers that the cancellation of the visa need not result in the applicant being removed from Australia. The applicant is likely to remain in Australia during the processing of his substantive visa application, whether or not he holds a Bridging A visa. It is not apparent that there will be any practical change in the applicant’s circumstances, at least unless he is granted bail, and the Tribunal makes no findings as to whether or not bail is likely to be granted.
As for the applicant’s step-daughter, the Tribunal notes that the existence of the AVO precludes the applicant’s contact with her. The Tribunal does not consider that her interests would be adversely affected by the cancellation.
The cancellation of the visa would not result in the applicant having to depart Australia. The Tribunal does not consider that Australia’s international obligations would be breached as a result of the cancellation.
Any other relevant matters
The applicant refers to the various matters which would cause him hardship if his visa is cancelled, such as inability to spend time with his daughter and to support himself if he has to return to Colombia. The Tribunal finds such submissions misguided. The cancellation of a bridging visa need not (and in all likelihood will not) lead to the applicant having to depart Australia. As noted above, the bridging visa is a temporary visa only to enable the applicant to await the outcome of his substantive visa application. There is nothing to suggest that the applicant would be removed from Australia while his substantive application is being processed. It may be that the applicant will remain in detention if he is not the holder of a bridging visa, while awaiting the outcome of the substantive visa application but the Tribunal is mindful that the applicant has not been granted bail and is presently in criminal detention, so it appears that whether or not he is the holder of a Bridging A visa may not have any substantial effect on his situation. The applicant would also be eligible to seek a Bridging E visa, if his present visa is cancelled. Thus, the Tribunal does not consider that the cancellation of the bridging visa will result in the applicant being removed from Australia, being separated from his family in Australia and experiencing other hardships to which he refers.
The Tribunal has considered the evidence of two of the applicant’s friends. [Ms C] told the Tribunal that she met the applicant and his family and knows him to be a good person and a good worker. He is a good father and has always looked after his daughter. [Ms C] confirmed that she is aware of what the applicant has been charged with and it is hard for her to believe that information. [Ms C] said that at present, she does not believe the applicant’s wife has any contact with him. They moved to a different place and the child was taken out of school but has now been brought back. She has no contact with the applicant’s wife or family.
[Mr D] also referred to the applicant being a long-time friend and neighbour. He believes the applicant to be a good and respectful person and a good responsible worker with a tranquil attitude. [Mr D] vouched for the applicant’s good behaviour and expressed willingness to support him. [Mr D] indicated that he is upset about what has happened but he believes in the applicant.
The Tribunal accepts that the two witnesses believe the applicant to be a good person and a person of good character. Their evidence does not overcome the Tribunal’s concerns set out above.
The applicant states that there is no risk of him reoffending, he has no history of non-compliance with visa conditions and must be presumed innocent. These issues are addressed above. The Tribunal has formed the view that there is a possibility that the applicant would be a risk to others, whether through further offending or other inappropriate behaviour. The applicant’s past compliance with visa conditions does not affect that assessment.
The Tribunal has considered the totality of the applicant’s evidence. The Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the safety of a segment of a community or to the safety of an individual or individuals and that there are grounds for cancelling his visa. The Tribunal acknowledges that some hardship may be caused by the cancellation, particularly if the applicant is granted bail and does not hold a visa, as this may lead to a potentially lengthy detention, but the Tribunal also notes that at present, the applicant has not been granted bail. His criminal detention means that he cannot work. The Tribunal is not prepared to speculate whether the applicant would be assessed as a person of good character in his substantive visa application and is not prepared to accept that the cancellation of his visa would necessarily lead to a finding that he is not a person of good character.
The Tribunal has formed the view that the cancellation of the visa would not breach Australia’s international obligations. In particular, the Tribunal notes that the applicant does not appear to presently have a meaningful relationship with his daughter and is precluded from having contact with his step-daughter. The Tribunal has rejected the applicant’s evidence that non-refoulement obligations arise in his case.
The Tribunal accepts that there is no evidence of non-compliance with visa conditions and no other known instances of non-compliance.
Overall, the Tribunal places greater weight on the nature of the charges and the existence of the AVO. The Tribunal also places weight on the fact that the visa in question is a temporary visa and that its cancellation will not result in the applicant having to leave Australia. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Kira Raif
Senior Member