1935897 (Migration)

1935897 (Migration) [2020] AATA 826 (9 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1935897
MEMBER:Michael Ison
DATE:9 January 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 09 January 2020 at 4:31pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 – unlawful non-citizen – knowingly breached condition 8101 – no compelling reason to stay in Australia – applicant applied for protection visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 116, 359AA, 367, 197C, 198, 501, 501CA
Migration Regulations 1994 (Cth), r 1.08; Schedule 2, cls 030.212, 030.611; Schedule 8, Condition 8101
CASES
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Goundar v MIBP [2016] FCA 1203
Ibrahim v MHA [2019] FCAFC 89
Minister for Home Affairs v Omar [2019] FCAFC 188

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 17 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).
Background
The applicant is a [age] year old Indonesian national who arrived in Australia [in] January 2014 as the holder of a [Visitor] visa that was valid to [February] 2014. The applicant did not return to Indonesia before or after the expiry of his [visa]. On 20 January 2016 the applicant applied for a Subclass 866 Protection visa, which was refused by the Department on 31 May 2016. The applicant appealed to the Tribunal to review that decision and the hearing of that review by the Tribunal, differently constituted, has been scheduled for 7 February 2020.
[In] December 2019 officers of the Department executed a warrant at the applicant’s then shared accommodation in [Town 1]. The applicant was served with a Notice of Intention to Consider Cancellation of his Bridging C visa (NOICC) [in] December 2019 by an officer from the Department. 18 minutes later [the] officer from the Department interviewed the applicant to obtain his response to the NOICC. 22 minutes later [the] Department officer handed the applicant the officer’s handwritten decision to cancel the applicant’s Bridging C visa.
The Department officer, being a delegate of the Minister, cancelled the applicant’s visa under s.116(1)(b) of the Act on the basis that the applicant had breached a condition of his visa. 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 24 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
In accordance with s.367(2) of the Act, the applicant agreed in writing to extend the prescribed period for the Tribunal to make a decision on the review under s.367(1) of the Act to 9 January 2020.
The applicant was represented in relation to the review by his registered migration agent who is also a practising lawyer. The applicant’s representative participated in the Tribunal hearing by telephone and provided written submissions before and after the hearing and oral submissions during the hearing on behalf of the applicant. The submissions provided by the applicant’s representative were of considerable assistance to the Tribunal in the conduct of this review.
At the commencement of the Tribunal hearing the Tribunal explained the determinative issues before the Tribunal, explained the Tribunal’s role and how the hearing would proceed including explaining that the Tribunal is independent of the Department and is not bound by the delegate’s decision. The Tribunal also explained the role of the interpreter as an aid to communication during the hearing and afforded the applicant an opportunity to object to the particular interpreter engaged by the Tribunal. The Tribunal further informed the applicant that it would allow both the applicant and his representative to address the Tribunal towards the end of the hearing on any matter they felt was relevant to the applicant’s review.
During the hearing the applicant’s representative requested permission to provide the Tribunal with written submissions on a number of matters raised during the hearing. The Tribunal and the representative agreed that these written submissions would be provided to the Tribunal by 6 January 2020.
The Tribunal received the following written submissions on behalf of the applicant:
·Submission dated 7 January 2020 enclosing a letter from [Organisation 1];
·Submission dated 6 January 2020 which included a covering email and a ten page written submission from the applicant’s representative dated 5 January 2020;
·Submission dated 24 December 2019 which included a covering email and a four page typed statement from the applicant dated 23 December 2019; and
·Submission dated 23 December 2019 which included a two page email and a completed appointment of representative form.
The applicant did not provide the Tribunal with a copy of the NOICC or the delegate’s decision to cancel his visa. The Tribunal obtained copies of these documents from the Department. As information in these documents would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate, the Tribunal shared that information with the applicant in accordance with the procedure set out in s.359AA of the Act.
The Tribunal particularised the potentially adverse information in the NOICC and cancellation decision as:
·The applicant knew his Bridging C visa had a condition attached to it that meant he was not allowed to work in Australia;
·In the applicant’s first two years in Australia, he borrowed money from friends in Australia and Indonesia and had other debts including the costs of rent and travel;
·After being in Australia for over two years the applicant felt he had to begin repaying the money he owed. The applicant began working to repay his debts in January 2018 and has been consistently working [since] then up until the applicant was detained last week;
·The applicant admitted to the Department officer who interviewed him that he knew his Bridging C visa did not allow him to work but the applicant chose to work anyway as he felt he had no choice;
·The Department officer who cancelled the applicant’s visa found the following considerations supported the cancellation of the applicant’s visa:
o   The applicant does not have a compelling reason to stay in Australia;
o   The applicant knowingly breached condition 8101 of his Bridging C visa;
o   The hardship the applicant would suffer if he returned to Indonesia was not significant;
o   The circumstances in which the cancellation of the applicant’s visa arose were that he knowingly breached a condition of his Bridging C visa;
o   The applicant co-operated with the Department, but made full admissions of choosing to work in breach of a condition of his visa.
The Tribunal explained the relevance of this information to the applicant’s review as being relevant to both whether there is a ground on which the applicant’s visa could be cancelled and to the weighing of the discretionary considerations when the Tribunal considers whether the applicant’s Bridging C visa should be cancelled or not. The applicant confirmed to the Tribunal that he understood the relevance of the information to his review.
The Tribunal explained to the applicant the consequences for his review if the Tribunal relies on the information shared with the applicant including that the Tribunal could form the view that the applicant has admitted to knowingly breaching condition 8101 of his visa and therefore there is a ground upon which the applicant’s visa can be cancelled.
The Tribunal explained to the applicant the other consequence for his review of the Tribunal relying on the information is that the Tribunal could separately form the view that the balance of the discretionary consideration support rather than weigh against the cancellation of the applicant’s visa and that therefore his visa should be cancelled.
The applicant confirmed for the Tribunal that he understood the consequences for his review if the Tribunal relied upon the information it had shared with the applicant.
The Tribunal invited the applicant to comment on or respond to the information but first offered the applicant additional time to consider the information before commenting on or responding to the information. The applicant, through his representative, requested and was granted a short adjournment by the Tribunal.
The Tribunal has considered all the information provided by or on behalf of the applicant, including the oral and written submission made by the applicant’s representative on the applicant’s behalf.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)(b). 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)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8101 attached to the applicant’s visa. This condition requires that the visa holder must not engage in work in Australia.
In submissions to the Tribunal before the hearing and during the hearing the applicant and his representative did not contest that there was a ground for the cancellation of the applicant’s Bridging C visa:
1.I make this statement in support of the Tribunal’s review of the decision to cancel my Bridging C visa. That Bridging C visa was granted to me when I made an application for a Protection (Subclass 866) visa in 2016. When it was granted, the Bridging C visa carried condition ‘8101’ (or the ‘no work’ condition). I know that my Bridging C visa was cancelled because I did not comply with condition 8101, and for the past two years, I engaged in work when I did not have permission to do that. [1]
[1] Applicant’s statement dated 23 December 2019, Tribunal file, folios 65 to 68 at folio 66.
In the submission to the Tribunal after the hearing, the applicant’s representative confirmed this position:
1.[The applicant] concedes that grounds for cancellation of his Bridging C visa arose under s 116(1)(b) of the Migration Act 1958, in that he breached condition 8101 attaching to that visa… [2]
[2] Submission received 6 January 2020 and dated 5 January 2020, Tribunal file, folios 69 to 75 at folio 73.
The applicant told the Tribunal that he was aware he did not have work rights under his Bridging C visa but eventually, due to mounting debt, felt compelled to work and knew he was doing so in breach of a condition of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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 Procedural Instructions previously known as the Department’s Procedures Advice Manual or PAM3 in the section headed ‘General visa cancellation powers’.
The headings below are taken from the Department’s Procedural Instructions and are used for convenience only.
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’s evidence is he originally came to Australia as a tourist and in response to questioning from the Tribunal about what he did in Australia prior to working, gave evidence that he spent his first years in Australia travelling and sightseeing in New South Wales, Victoria and Queensland. The applicant submitted to the Tribunal that he had worked in [Country 1] for 10 years prior to his arrival in Australia and had some savings on which he could rely.
The Tribunal has some doubts about this explanation. The applicant in his written statement dated 23 December 2019 described his upbringing in Indonesia, the difficulties he faced there, his move to [Country 1] to obtain work, his return to Indonesia and eventual move to Australia. In that statement the applicant stated:
8. My father passed away when I was [age] years old, in 1998. From that time, it was just my mother to care for us. She was a housewife and have never worked in her life. She decided to move us to Jakarta so that we could live with her sister and be supported by her.
9. Since the time of my father’s death, my mother did not work. We have either been supported by my mother’s family members or by me, from the income I derived from my work. We have not had any other source of income. We lived a very poor and difficult life. (sic) [3]
[3] Applicant’s statement dated 23 December 2019, Tribunal file, folios 65 to 68 at folio 66.
It seems unusual to the Tribunal in the circumstances of the poor and difficult life the applicant described in his statement that he would then come to Australia as a genuine tourist and then would spend at least two and possibly more than three years travelling and sightseeing before deciding to work. In addition, the applicant told the Tribunal he incurred debts of approximately AUD[Amount 1] during this time in Australia, including borrowing money from a bank, a private lender described as a ‘loan shark’ and from family and friends. This seemed to the Tribunal to be a very large amount of money for the applicant to have spent living in Australia when the applicant submitted he initially had some savings to rely on, lived frugally and then later worked from at least January 2018 to support himself in Australia. The applicant’s representative agreed to clarify this evidence with the applicant after the Tribunal’s hearing and to provide submissions and, if available, supporting evidence about the applicant’s debts.
In the submission dated 5 January 2020, the applicant’s purpose for travel and stay was described differently, as were other key aspects of the applicant’s oral evidence that caused the Tribunal concern:
On the suggestion of a friend, [the applicant] decided to travel to Australia on a Visitor visa. [The applicant]’s intention in travelling to Australia was, firstly, to take his first break from work in ten years and see something of the country, and secondly, to try and find a means by which to secure permanent residence. Though [the applicant] knew that he needed to escape from the discrimination and threat that pervaded life in Jakarta, he was not familiar with the concept of asylum, or the process of applying for a Protection visa. Had he been familiar with that process, then he would have submitted his Protection visa application during the time his Visitor visa remained valid.
[The applicant] arrived [in] January 2014 as the holder of a Visitor [visa]. He has not returned to Indonesia since that time.
In his initial months in Australia, [the applicant] relied on savings from his time in [Country 1] and, when those ran out, transfers of money from his mother’s relatives in Jakarta. He attempted to live frugally – through advertisements on [social media], he found shared accommodation in regional Victoria at limited cost.
…
By 2017, [the applicant] recalls that he had exhausted his savings and accrued significant debt to his family members in Indonesia. Unfortunately, given his present circumstances in immigration detention, he is unable to access evidence of the various transfers made from Indonesia – however, he believes his total debt to be somewhere in the order of [Amount 2, approximately a third of Amount 1].
Unable to contact his former agent, and unaware that he could seek to remove condition 8101 from his Bridging C visa, [the applicant] began working without authority in 2017. [The applicant] explains:
Without knowing what to do, I started to take up small [jobs]. Some were in Queensland, New South Wales and later in Victoria. I was not paid much for the work that I did, probably because my employers knew that I did not have permission to work. [4]
[4] Submission dated 5 January 2020, Tribunal file, folios 69 to 75 at folio 73.
This submission casts the applicant’s intentions in coming to Australia were initially to be a tourist but then to pursue permanent residence. The Tribunal accepts that a visitor to Australia may legitimately have more than one reason for visiting. The submission clarifies the applicant’s debts to be AUD [Amount 2] and not AUD [Amount 1] that the applicant told the Tribunal. Finally, the submission also clarifies the applicant began working at an unspecified time in 2017, not in January 2018 as the applicant told the Tribunal.
The Tribunal’s concerns notwithstanding, the Tribunal accepts the applicant’s evidence he applied for a Protection visa in January 2016 and that this application has not been finally determined.
The applicant’s representative submitted that the determination of the applicant’s Protection visa application provides him with a compelling reason to remain in Australia. Without making any findings on the merits or otherwise of the applicant’s Protection visa application, the Tribunal accepts this submission.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it considerable weight.
The extent of compliance with visa conditions
The applicant has admitted to breaching condition 8101 of his Bridging C visa from 2017 up until the time he was detained.
The applicant’s representative submitted that this breach was ‘inadvertent’ in the sense that the applicant was not aware it was a discretionary condition that could be ‘withdrawn’ by the Department (by issuing another Bridging C visa without the condition) and the applicant therefore acted in ignorance of the possibility of being able to lawfully work in Australia as the holder of a Bridging C visa.
In written submissions, the applicant’s representative submitted:
Policy directs delegates to consider
The extent of compliance with visa conditions [and] whether the visa holder has otherwise complied with visa conditions now and on previous occasions.
While [the applicant] admits to breach of condition 8101 over the past two years, the Tribunal must consider this breach in light of the relative ease with which the condition could have been removed from [the applicant]’s Bridging C visa on application by him.
When interviewed by ABF officers on 17 December, [the applicant] candidly stated that he had been forced to commence work in 2017 due to financial hardship. He had expended his savings and taken on significant debt from his extended family. He recalls that the officers advised him that he could have applied to remove condition 8101 from his Bridging C visa, and this was the first time he had heard of this possibility.
We note that it was open to [the applicant], at any time, to submit an application for a further Bridging C visa without condition 8101. [The applicant] could have made that application based on his satisfaction of the requirements at subcl 030.212(3) of Schedule 2 to the Migration Regulations 1994, which provides as follows:
(3) An applicant meets the requirements of this subclause if:
(a) the applicant holds a Bridging C (Class WC) visa that:
(i) was granted as a result of a valid application, made in Australia, for a substantive visa of a kind that could be granted to an applicant who was in Australia; and
(ii) is subject to condition 8101; and
(b) the Minister is satisfied that the applicant has a compelling need to work.
For applicants who meet subcl 030.212(3), cl 030.611 provides that nil conditions are to be imposed:
In the case of a visa granted to an applicant who meets the requirements of subclause 030.212(3):
(a) if condition 8303 applies to the Bridging C (Class WC) visa held by the applicant—condition 8303; or
(b) if condition 8501 applies to the Bridging C (Class WC) visa held by the applicant—condition 8501; or
(c) in any other case—nil.
Accordingly, at any time after the grant of his initial Bridging C visa, [the applicant] could have submitted an application for a further Bridging C visa seeking to engage subcl 030.212(3) and providing evidence that he had a ‘compelling need to work.’ For these purposes, r 1.08 defines ‘compelling need to work’ to simply mean financial hardship, as follows:
For the purposes of these Regulations, a non-citizen has a compelling need to work if and only if:
(a) he or she is in financial hardship;
Departmental policy directs decision makers to consider the following matters in ascertaining whether an applicant demonstrates a ‘compelling need to work’ (in the sense of financial hardship):
Assessing ‘financial hardship’
The delegate should have regard to the following:
•whether the person’s claimed expenses are reasonable - for example, are they within the range considered acceptable for the person’s situation
•how the person has supported themself [sic] until now and whether that support will continue
•whether there are other possible means of support - for example, their sponsor or nominator, relatives or friends in Australia, relatives overseas
•whether the person would otherwise become an unreasonable charge on public funds or charitable institutions
•when the application for the substantive visa is likely to be decided³
It is self-evident, in our submission, that [the applicant] would have demonstrated a ‘compelling need to work’ and thus have been eligible for the grant of a further Bridging C visa, without condition 8101. In our submission, it is unduly harsh to penalise [the applicant] for his ignorance of the above process – particularly where that ignorance was itself due to his financial hardship, and inability to afford proper legal advice.
Had [the applicant] obtained proper legal advice in a timely manner, and been granted a further Bridging C visa without condition 8101, the present consideration would not have arisen. We urge the Tribunal to consider this when exercising its discretion in this case. [footnotes omitted] [5]
[5] Submission dated 5 January 2020, Tribunal file, folios 69 to 75 at folios 70 and 71 (back).

The Tribunal accepts that the above submission includes accurate, if in some aspects edited, extracts of relevant migration law and Departmental policy. In addition, the Department’s Policy Instructions define financial hardship as:
Generally, a person can be taken to be in financial hardship if the cost of reasonable living expenses exceeds their ability to pay for them.
The Tribunal has considered the submissions from the applicant’s representative carefully when assessing and weighing this consideration. For the reasons set out below, the Tribunal found the submissions of the applicant’s representative in this regard to be speculative and ultimately was not persuaded by those submissions that this consideration weighs against the cancellation of the applicant’s visa. The representative’s submissions have influenced the weight the Tribunal has given this consideration.
The submissions assert that in the applicant’s circumstances he would have been granted a Bridging C visa without condition 8101 attached. This is a possibility, but not a certain outcome. The outcome of an application for a Bridging C visa without condition 8101 attached depends, amongst other factors, on the circumstances of the applicant at the time of the application and the evidence the applicant could produce of his financial circumstances to support such application.
The Tribunal discussed with the applicant’s his debts and financial support of his family while he has been in Australia and asked the applicant to provide evidence of those debts and financial support. In the covering email to the submission dated 5 January 2020, the applicant’s representative submitted:
I note that, during the review hearing in this matter on 24 December, the Member asked us to provide evidence of [the applicant]'s debt and transfer from his family from Indonesia. Unfortunately, following his detention, he has been unable to make contact with his housemates to provide copies of his financial records, which remain in his home. [The applicant] suspects that his housemates may also have been subjected to visa cancellation, or may have left their property following the raid and his detention. We apologise that we are unable to provide this further information to the Tribunal for its consideration in this case. [6]
[6] Tribunal file, folio 75.
The applicant’s present circumstances could make it difficult for him to obtain a Bridging C visa without condition 8101 attached. However, the point of the relevant submissions of the applicant’s representative as the Tribunal understands them, is that when the applicant had access to all of his personal information he could have ‘easily’ proven his financial hardship and therefore his compelling need to work. Presumably, if the cancellation of the applicant’s Bridging C visa is set aside the applicant hopes to recover his personal information or may be able to recreate it, such as by obtaining current and historical banking records.
However, in the absence of any historical or current financial information being able to be provided to the Tribunal by the applicant, the submissions about him having been able in the past or being able in future to obtain a Bridging C visa without condition 8101 attached remain, in the Tribunal’s view, speculative. The Tribunal accepts the explanation offered by the applicant’s representative for this information being unavailable and makes no adverse findings against the applicant in that respect given the sudden nature of his departure from his home and subsequent detention.
The submissions assert the applicant breached the no work condition of his Bridging C visa because of his ignorance that he could obtain a Bridging C visa without that condition attached, which the submissions assert was a situation that arose because of the applicant’s financial hardship and inability to afford proper legal advice. It is not clear to the Tribunal that this is an accurate reflection of the applicant’s circumstances as they have been explained to the Tribunal.
The applicant gave evidence of seeking immigration advice in “late 2015” from someone recommended to him by friends or acquaintances he made in Australia and twice paying fees in such amounts that the applicant had to obtain funds from extended family overseas to do so. This indicates to the Tribunal that the applicant could and did obtain funds to obtain what he thought was immigration legal advice. Unfortunately for the applicant, his evidence is that the advice he obtained was less than competent, which the Tribunal accepts.
Even though the applicant’s application for a Protection visa was successfully lodged, the applicant’s evidence is this advisor did not tell him that he could seek a Bridging C visa without the no work condition attached and did not even tell the applicant the Department had offered him an interview in relation to his Protection visa application. The applicant’s evidence is this person stopped communicating with him and he has now forgotten the person’s name. The Tribunal was surprised the applicant could not remember the name of a person he had met in person[7] and spoken to over the telephone who was providing advice and services that were of such importance to the applicant’s future. Otherwise, the Tribunal found the applicant’s evidence during this discussion to generally be candid and therefore accepts the balance of his evidence in this regard.
[7] Applicant’s statement dated 23 December 2019, Tribunal file, folios 65 to 68 at paragraph 6.
The representative’s submissions state that had the applicant obtained both ‘proper’ and ‘timely’ legal advice the cancellation of his visa would not have arisen. This may be true and is a reasonable submission, but again it is not certain. A number of factors affect the provision of migration advice, legally based or otherwise, including the applicant’s financial resources at the time, the quality of his instructions, the supporting documentation he has available and the experience and skill of the migration lawyer or agent providing the advice.
The Tribunal also accepts that the applicant did not have a detailed, or perhaps any more than a rudimentary, understanding of Australia’s migration law and system. But the applicant’s evidence is unequivocal that his knowledge, limited as it was, did extend to knowing that he could not work in Australia when the Bridging C visa he held was subject to the no work condition. In this context, the Tribunal does not accept that the applicant’s breach of his Bridging C visa was merely the result of a lack of knowledge or advice.
The applicant also gave evidence that he was aware his initial Visitor visa expired [in] February 2014 and he held a return air plane ticket to Indonesia. The applicant said he let the ticket lapse and did not obtain a refund because he felt welcome and happy in Australia where he is not discriminated against or called a foreigner as he alleges he is in Indonesia.
When the Tribunal asked the applicant if he spoke to the Department about his lawful options to extend his stay in Australia the applicant told the Tribunal he lacked knowledge of Australian law and was not aware he could do that and did not know where to go or who to speak to. The Tribunal did not find the applicant’s evidence in this regard convincing. The applicant had sufficient migration assistance and knowledge to successfully obtain a Visitor visa, to arrange and successfully travel to Australia with a return ticket and to be aware when that Visitor visa expired. The applicant’s evidence indicates to the Tribunal that the applicant had a level of knowledge about Australia’s migration laws that was sufficient for him to know or be aware that he had to return to Indonesia before his Visitor visa expired and that he also knew that he would need to engage with Australian authorities to stay lawfully in Australia beyond that date.
The Tribunal finds that the applicant knowingly and deliberately overstayed his Visitor visa and was an unlawful non-citizen for just short of two years, until he applied for a Protection visa in January 2016.
The applicant subsequently knowingly and deliberately breached a condition of his Bridging C visa in 2017 when he began to work in breach of condition 8101 that prohibited from working while in Australia. This breach lasted for at least two years until the applicant was detained in December 2019.
The Tribunal finds that this consideration supports the cancellation of the applicant’s visa. The Tribunal would have given this consideration great weight but in light of the applicant’s evidence about seeking and receiving less than competent migration advice and the submissions of the applicant’s representative about the potential for the applicant to have obtained a Bridging C visa without condition 8101 attached, the Tribunal has given this consideration considerable weight.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant told the Tribunal that he found the situation in immigration detention good, at least compared to being sent home. The applicant told the Tribunal he is able to maintain his religious observance in immigration detention, has a mobile telephone and has been able to communicate with his family and has regular although not unlimited access to the internet.
The applicant told the Tribunal that the cancellation of his visa would cause him considerable financial hardship as he needs to repay his debts to a private lender (which he described as a ‘loan shark’), to a bank and to his family and friends.
The applicant’s evidence is he would be sad to leave Australia as he finds it peaceful and safe here and he would be sad to return to Indonesia. The applicant told the Tribunal he does not have any work experience in Indonesia and he expects his Chinese ethnicity will make it very difficult for him to get work there because of the discrimination against those of Chinese ethnicity. The applicant also said that maybe he could get a job in Indonesia, but it would only be a low position with very low pay. This may have been speculation by the applicant, but it indicated to the Tribunal that the pursuit of work in Indonesia potentially remains an option for the applicant, albeit not a very attractive or perhaps even a realistic option. The Tribunal accepts the applicant’s evidence that he would much prefer to stay in Australia because he believes he is safer and has far greater opportunities here given his perception of the absence of discrimination.
The Tribunal asked the applicant about whether he could return to [Country 1] where he gave evidence he had previously lived and worked for 10 years. The applicant told the Tribunal that he had lawfully worked in [Country 1] by obtaining work there through a friend of his mother’s but that friend had now also returned to Indonesia, so he did not think there would be any work there for him. The Tribunal found it surprising that the applicant had not established any other contacts or work prospects having lived and worked in [Country 1] for 10 years, but accepts the applicant’s evidence in this regard.
In the post hearing submission dated 5 January 2020, the applicant’s representative submitted in relation to this consideration:
Policy directs that
delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.
If the Tribunal were to affirm the cancellation of [the applicant]’s visa, he would remain in immigration detention while awaiting review in relation to his Protection visa. He would be prevented from accessing meaningful legal assistance to prepare his case, and noted above. His detention would continue for a substantial period, until the Tribunal was able to constitute his review to a member for hearing. [The applicant]’s detention in these circumstances would constitute an unnecessary expenditure of public funds – relating to the expenses of his ongoing detention as well as the Tribunal’s expenses and inconvenience in constituting the matter on an expedited basis. As is the right of most visa applicants awaiting review, [the applicant] should be permitted to remain lawfully in the Australian community. His ongoing detention is unwarranted in the circumstances. [8]
[8] Submission dated 5 January 2020, Tribunal file, folios 69 to 75 at folio 70.
60. After the Tribunal hearing the applicant’s representative provided a letter from [Organisation 1] confirming the applicant had the then earliest available appointment in January 2020 with [its] free migration advice service and [Organisation 1] would support the applicant, including introducing him to community and charitable organisations, to re-establish himself in the community if the Tribunal set aside the cancellation of the applicant’s visa.
The Tribunal does not accept the submission that the applicant would be prevented from accessing meaningful legal assistance to prepare his case in relation to the review of the decision to refuse to grant him a Protection visa if his visa is cancelled and he remains in immigration detention. It is an accepted feature of the migration system in Australia that where it is necessary to detain a person until their status is finally determined, in the absence of specific allegations or circumstances to the contrary, being held in immigration detention is not procedurally unfair in the sense of placing an unreasonable impediment to detainees obtaining legal advice. The Tribunal is not aware that detainees are routinely or generally denied access to or impeded from obtaining legal advice while detained and there have been no specific allegations of such put to the Tribunal by the applicant. The applicant told the Tribunal he could use his mobile phone and had regular but not unlimited access to the internet while he has been in immigration detention. The Tribunal finds on the evidence before it that the support offered to the applicant by [Organisation 1], including supporting the applicant to make contact with a community legal centre, could be provided to the applicant if he was to remain in immigration detention.
The Tribunal also does not accept that the applicant’s detention will necessarily be for a “substantial period”. The applicant’s review by the Tribunal of the decision to refuse to grant him a Protection visa has been constituted to a different member of the Tribunal, but it is not known to the Tribunal as presently constituted when that review may be heard or a decision made.
The expenditure of public funds on the applicant’s detention is not a matter the Tribunal finds relevant to this consideration. The detention of the applicant is the result of legislation passed by Parliament and the setting of priorities and allocation of resources by the Government and the Department to enforce and administer that legislation and those priorities. The financial cost of those priorities, resources and processes is not a matter that the Tribunal finds goes to the hardship the applicant may suffer if his visa is cancelled.
The Tribunal accepts that the applicant may suffer hardship if he feels he is being unduly punished by being detained for a breach of a condition of his visa that may have been able to be replaced by the another Bridging C visa without that condition, although such a sense of injustice or hardship was not evident in the applicant’s oral evidence to the Tribunal.
The Tribunal finds that the applicant and his family, particularly his mother, will suffer financial and emotional hardship if his visa is cancelled. The extent of these hardships are difficult for the Tribunal quantify. At the hearing the applicant did not seem distressed by being placed in immigration detention although the Tribunal accepts that the deprivation of one’s liberty will usually cause the person detained significant hardship.
The applicant has not provided any information to the Tribunal about how much money he earned in Australia, his living and other expenses here, the amount or frequency of his financial support of his mother in Indonesia, the specific quantum of his debts to each lender or his repayment obligations in relation to each of those debts.
The Tribunal accepts, given the relative circumstances of the two countries, that the applicant is unlikely to be able to earn as much as he was earning in Australia and this will likely cause both him and his mother financial hardship, particular in relation to the repayment of the debts of AUD [Amount 2] the applicant claims to owe.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa, but in the circumstances of the limited evidence before the Tribunal, the Tribunal only gives this consideration some weight.
The circumstances in which the ground for cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances of the cancellation of the applicant’s Bridging C visa are set out above, but the evidence before the Tribunal in this regard can be summarised as:
·The applicant arrived in Australia in January 2014 on a Visitor visa;
·The applicant’s Visitor visa expired in February 2014;
·The applicant did not return to Indonesia after his Visitor visa had expired, despite having a valid air plane ticket to do so;
·In January 2016 the applicant applied for a Protection visa, after receiving advice from friends and eventually with the more formal assistance of a third party who he thought was a migration lawyer;
·The applicant was granted a Bridging C visa at the time of his application for a Protection visa;
·The applicant was aware his Bridging C visa had a condition (condition 8101) attached to it that did not allow him to work in Australia;
·The applicant did not know that the no work condition is a discretionary condition and can be ‘removed’ by the Department granting the applicant another Bridging C visa without the no work condition attached;
·The applicant’s evidence is he had incurred significant debts living in Australia since the expiry of his Visitor visa and felt compelled to work to begin repaying those debts;
·From some time in 2017 the applicant began to work [in] New South Wales, Queensland and Victoria, moving as [demand] for work moved and was relatively continuously employed (with breaks of up to a month between jobs) until he was detained;
·The applicant was lowly paid, in cash and without any supporting paperwork such as pay receipts or statements;
·The applicant was interviewed at his then residential premises in [Town 1] on 17 December 2019, his Bridging C visa was cancelled and he was detained at a police station before being moved to immigration detention the next day;
·Prior to being detained the applicant had become aware that [Organisation 1] offered free legal advice for members and he was seeking to normalise his immigration status using that advice, first to get an up to date passport and then to assist with his Protection visa appeal to the Tribunal; and
·It was during this process that the applicant became aware that condition 8101 attached to his Bridging C visa could be ‘removed’, he may be able to lawfully work in Australia and he had an appointment in January to meet with the [Organisation 1] advisers again.
In the post hearing submission dated 5 January 2020 the applicant’s representative submitted in relation to this consideration:
Finally, policy provides that:
delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing… As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder (emphasis added)
In our submission, there are sound public policy reasons not to exercise visa cancellation powers where the holder has worked in breach of conditions and experienced exploitation as a result. According to his statement, [the applicant] worked in various lowly-paid labouring positions [across] Queensland, New South Wales and Victoria. He connects his low rates of pay with his employers’ awareness of his visa conditions.
Several largescale studies make it clear that ‘undocumented’ workers – meaning those without lawful status in Australia, or working in breach of visa conditions – are more vulnerable to exploitation than any other workforce. Much of this research is summarised by the 2016 report of the Senate Education and Employment References Committee, entitled A National Disgrace: The Exploitation of Temporary Work Visa Holders, which we commend to the Tribunal in this case.⁴ [footnote omitted] Specifically, the Committee summarises expert evidence to the effect that harsh exercise of visa cancellation powers favours employers and further entrenches vulnerability. The (sic)
8.38 In a situation where both the employer and the employee are equally in breach of Australia's migration laws, Dr Clibborn argued that the current state of affairs effectively allows a dishonest employer to profit from the arrangement while at the same time punishing vulnerable temporary visa workers:
If detected by the Department of Immigration and Border Protection (DIBP), employers are subject to penalties including fines, while the employees' penalties may include detainment and deportation. Unscrupulous employers will calculate the savings from long‐term exploitation of undocumented workers against the risk of detection and penalty. The workers, on the other hand, will of course never be entitled to recover wages, the underpayment of which allowed the employers to increase their profit margins.
8.39 The cycle of vulnerability was explained by Carey Trundle, Director of the Overseas Worker Team at the FWO, in an interview with Associate Professor Tham:
When you're looking at student visa's you're looking at 40 hours a fortnight. Well if you don't know your workplace rights and you're working in a restaurant and getting paid $6 an hour and you're being told you've got to work more than that if you want to keep your job, you've also got to work more than that because you can't live on $6 an hour, you're in a very vulnerable situation because you've got the employer who has the power over you and then you've also got this fear that you're in breach of your visa so therefore immigration — you're fearful of immigration. So all those things contribute to a level of vulnerability.
In its concluding remarks, the Committee recommended that visa cancellation for work-related breaches occur only as a last resort in severe cases. The Committee further concurred with the expert view that overzealous exercise of cancellation powers served to entrench the vulnerability of undocumented migrant workers:
8.242 The committee received evidence that undocumented work by migrant labour has resulted not only in the severe exploitation of highly vulnerable workers, but also impacted Australia's labour markets, including placing downward pressure on the wages and conditions of Australian workers and undercutting the majority of legitimate employers that abide by Australian workplace laws.
…
8.244 Evidence to the committee indicated that following multi-agency taskforce investigations and raids, undocumented workers working without a valid visa were detained and deported swiftly.
…
8.247 Rapid deportation also further tilts the balance of power in favour of those unscrupulous employers who deliberately use undocumented workers as part of their business model. An undocumented migrant would be too frightened to speak out for fear of deportation (if an opportunity to speak out even arose). Furthermore, if a worker is deported, there is no possibility of their employer being required to pay back wages to the worker(s) as a result of court proceedings. In effect, the system as it currently operates risks creating a perverse incentive for unscrupulous employers to use undocumented migrant labour.
In this case, despite the fact that [the applicant]’s [work] equally constituted a breach of the Migration Act by his employer, we note that the ABF did not commence or recommend separate proceedings against his employer. [The applicant] alone was penalised for his work-related breach of visa conditions, despite the fact that his employer was equally aware of the breach, and took benefit of it by underpayment.
As a matter of public policy, the Tribunal ought not tolerate such unequal consequences for [the applicant] and his employer. Cancellation of [the applicant]’s visa is an unduly harsh and unnecessary consequence, in light of his circumstances.[9]
[9] Submission dated 5 January 2020, Tribunal file, folios 69 to 75 at folios 69 and 70 (back).

The applicant’s representative specifically referred the Tribunal to Chapter 8 of the Senate Education and Employment References Committee (Senate Committee) report referred to above, titled “Wages, conditions, safety and entitlements of international student visa holders”.[10] This chapter also addresses the exploitation of undocumented migrant labour.
[10] Senate Education and Employment Reference Committee report, A National Disgrace: The Exploitation of Temporary Work Visa Holders, March 2016, Chapter 8 pp 201 to 266.
The evidence before the Tribunal of the applicant being exploited as an employee is the applicant’s oral evidence and representative’s submission to that effect. The applicant did not provide any documentary evidence to support these claims. The Tribunal has no reason to doubt the applicant’s claims that he was low paid in the work he undertook. There is no evidence before the Tribunal to support the applicant’s claims he was low paid because he did not hold a valid visa and that his employers were aware of this, although the Tribunal accepts the Senate Committee’s findings that such exploitation of undocumented migrant labour continues to regularly occur. There is no information before the Tribunal of what visa holders or permanent residents or Australian citizens who performed the same or similar work to the applicant were paid in comparison to what the applicant was paid.
The focus of Chapter 8 of the Senate Committee report is the systematic exploitation of student visa holders by 7-Eleven and its franchisees. However, this Chapter of the report also raises issues of human trafficking and slavery, which it defines as a situation where any person feels they cannot leave and they are being exploited. The report documented concerns with visa cancellation powers being used to quickly deport exploited undocumented migrant labour before issues of potential slavery like conditions and human trafficking can be properly assessed. The applicant has not made any claims of being enslaved or working in slave like conditions or being the victim of human trafficking.
The Senate Committee recognised the public policy tensions in relation to the exploitation of undocumented migrant labour:
8.248 The committee received conflicting advice on how to address these matters. Some submitters argued that all temporary migrant workers who are exploited, trafficked, and/or enslaved by their employers should have an automatic right of stay. This would allow them to pursue legal processes to, for example, recover underpaid wages from their employer. Allowing such a course of action might, along with increased penalties against employers who deliberately breach workplace laws, help change the calculations made by some employers about whether to comply with Australian workplace laws.
8.249 However, the DIBP pointed out that undocumented workers are working without authority. There is therefore a difficulty in provided unauthorised workers with an opportunity to recoup underpaid wages. The system therefore treats undocumented workers differently to a temporary visa worker who is here legally, working legally, and being underpaid. Although the Department did not say it, presumably there is also a risk that allowing an undocumented worker to pursue a claim for underpaid wages could also create a perverse incentive for undocumented workers to seek to work when they are not authorised to do so.
8.250 Nevertheless, the committee notes that undocumented migrant work involves both the employee and the employer in a breach of workplace law. The committee recognises that, in practice, the current situation benefits unscrupulous employers (and hurts legitimate employers) and involves the severe exploitation of migrant workers. Shifting to a more victim-centred approach may allow exploited migrant workers access to justice. It would also shift a greater onus onto employers to ensure that they were only employing temporary visa workers legally allowed to work and in conformity with their visa conditions. [11]
[11] Senate Education and Employment Reference Committee report, A National Disgrace: The Exploitation of Temporary Work Visa Holders, March 2016, pp 258.
This led the Senate Committee to recommend:
Recommendation 22
8.253 The committee recommends that the Department of Immigration and Border Protection review the procedures used in cases involving severe worker exploitation to ensure that a victim-centred approach exists in practice such that the potential victims of people trafficking and slavery-like conditions are afforded an adequate opportunity in a safe and secure environment to report any offences committed against them.
This specific and narrow recommendation is of little assistance to the applicant who has not claimed before the Tribunal to be the victim of people trafficking or slavery-like conditions.
However, the Senate Committee also recommended amendments to the Migration Act, in the following context:
8.264 The committee is particularly concerned about the pressure that certain employers have exerted on temporary visa workers to breach a condition of their visa in order to gain additional leverage over the employee. The committee recognises the reality that unscrupulous employers have exercised their power in the employment relationship and the employee has been rendered vulnerable to exploitation.
8.265 The potential for visa cancellation and deportation has placed numerous temporary visa holders in an invidious and precarious position with regard to their employer. The current penalties (visa cancellation and deportation) facing a temporary visa holder for breach of a visa condition are manifestly unfair, especially considering the element of employer coercion involved in visa breaches, and compared to the often derisory penalties to which employers have been subject for gross and deliberate breaches of the law.
8.266 Furthermore, measures that address the issues of fairness and coercion would likely assist the authorities and the FWO by making it much more likely that a temporary visa worker would feel safer coming forward to report instances of exploitation. In this regard (and despite the fact that the FWO has previously received, on an ad hoc basis, an assurance from the DIBP not to pursue a temporary visa worker for visa breaches if they come forward to report exploitation), the committee is persuaded that the fear of being reported to the DIBP, or that the DIBP will become aware of their visa breach and therefore will act to deport them, strongly discourages temporary visa workers from coming forward and therefore acts as a brake on the reporting of claims by visa workers.
8.267 Without clear-cut changes, the chronic under-reporting of exploitation to the FWO by temporary visa workers will continue. The committee acknowledges that government is not going to substantially increase the resources of the FWO. However, the status quo is not acceptable. On this basis, the committee considers that changes to relevant laws are required to encourage temporary visa holders to come forward and furnish the FWO with the information necessary to pursue investigations of malpractice.
8.268 The committee is therefore of the view that visa cancellation should be restricted to cases of serious noncompliance with a visa and serious contravention of a visa condition. Seriousness could take into account factors such as the frequency and gravity of the noncompliance or contravention, whether the visa-holder freely sought to enter into an employment relationship in breach of the visa's work condition and/or Australian law, whether the noncompliance or contravention was brought about by the conduct of others including employers, and whether the visa-holder had been previously warned by the DIBP in relation to the noncompliance or contravention.
Recommendation 24
8.269 The committee recommends that Section 116 of the Migration Act 1954 be reviewed with a view to amendment such that visa cancellation based on noncompliance with a visa condition amounts to serious noncompliance. The committee further recommends that Section 235 of the Migration Act 1954 be reviewed with a view to amendment such that a contravention of a visa condition amounts to a serious contravention before a non-citizen commits an offence against the section. [12]
[12] Senate Education and Employment Reference Committee report, A National Disgrace: The Exploitation of Temporary Work Visa Holders, March 2016, pp 260 - 261.
This analysis and recommendation by the Senate Committee is consistent with the submissions of the applicant’s representative that the cancellation of the applicant’s visa would be an unduly harsh and unnecessary consequence of what the representative submits is “the relative insignificance of the breach in light of the fact that [the applicant] was entitled to have condition 8101 removed from his visa”.
There is no specific evidence before the Tribunal that then applicant felt unable to or unsafe in reporting his exploitation by various employers, but the Tribunal does not make any finding in this regard because this issue was not specifically discussed during the hearing.
The Senate Committee defined ‘serious contravention’ for the purpose of a breach of a prescribed condition restricting the work that the non-citizen may do in Australia by providing a non-exhaustive list of considerations:
8.57 The Migration Act could list the factors to be taken into account in determining whether there is 'serious non-compliance' or 'serious contravention' including:
•whether the non-compliance/contravention occurred with knowledge of its unlawfulness on the part of the visa-holder;
•the frequency of the non-compliance/contravention;
•the gravity of the non-compliance/contravention;
•whether the non-compliance/contravention was brought about by conduct of others, including employers; and/or
•whether the visa-holder had been previously warned by the Immigration Department in relation to the non-compliance/contravention. [ footnote omitted ]
In the Tribunal’s view the applicant’s circumstances potentially fit such a definition. The applicant was aware of the unlawfulness of his contravention of condition 8101, the contravention continued for at least two years and possibly longer and the applicant was not coerced by his employers (as the visa holders were in the 7-Eleven cases) to breach the condition of his visa. The gravity of the contravention is more difficult to assess given the applicant admitted to a previous breach of Australia’s migration law by overstaying his Visitor visa but this arguably should be separated from the assessment of the contravention of condition 8101, which the applicant had not previously been warned about by the Department.
The applicant’s representative has, in the Tribunal’s view, overstated the applicant’s right to apply for another Bridging C visa without condition 8101 attached as an ‘entitlement’ to have condition 8101 removed. For the reasons identified in the Tribunal’s discussion of the ‘The extent of compliance with visa conditions’ section of these reasons, the Tribunal does not accept that such entitlement exists for the applicant or that the outcome, if the applicant had applied for a Bridging C visa without condition 8101 attached, was in the applicant’s circumstances certain. However, as a first contravention in circumstances where the applicant had sought and not received competent migration advice, at least in relation to his work rights, the Tribunal tends to the view the applicant’s contravention was not most grave. Notwithstanding this consideration, the Tribunal considers that there are sufficient indicia in the applicant’s circumstances that his contravention of condition 8101 could be found to be a ‘serious contravention’ if the amendments to the Migration Act recommended by the Senate Committee had been enacted.
The relevance of this analysis by the Tribunal is that the Tribunal does not therefore accept that the potential cancellation of the applicant’s visa is an unduly harsh and unnecessary consequence, in light of his circumstances.
The Tribunal acknowledges the submissions of the applicant’s representative that the applicant’s employer was not prosecuted yet benefitted from underpaying the applicant and these unequal outcomes should not be tolerated by the Tribunal. The applicant gave evidence that he worked for numerous employers for weeks and months at a time, moving employers [regularly]. It is not clear to the Tribunal how the applicant’s representative knows that none of these employers were prosecuted or subject to other, such as administrative, action. For present purposes however, the Tribunal will assume that the applicant’s representative is correct.
The lack of consequences for many employers who exploit undocumented migrant labour was discussed in detail in the Senate Committee report. The Senate Committee recognised this was the result of the complex intersection of migration law and industrial relations law in Australia and extended to issues of worker health and safety and superannuation. The Senate Committee made several recommendations to try and address this unsatisfactory outcome, including at the legislative, policy and resourcing of regulatory bodies’ levels.
The Tribunal is not convinced in the applicant’s circumstances, where there is no evidence before the Tribunal that the applicant’s breach of condition 8101 was coerced by any of his employers, that the lack of prosecution or known consequences for any of his employers diminishes the seriousness of the applicant’s breach of the condition of his visa.
The applicant gave evidence, supported by submissions, in relation to the circumstances of the cancellation of his visa that cancellation arose, in effect, because he is the victim of his own ignorance of Australia’s migration laws compounded by the migration advice he did pay for being less than competent, including in the applicant not being informed that he could potentially have obtained a Bridging C visa without condition 8101 attached, thereby allowing him to lawfully work in Australia which would have avoided the circumstances that led to the cancellation of his Bridging C visa by a delegate of the Minister.
The Tribunal accepts that the applicant’s knowledge of Australia’s migration law and system may be relevant to the circumstances of the cancellation of the applicant’s visa and whether cancellation arose in circumstances that were beyond the applicant’s control. The applicant gave unequivocal evidence to the Department and the Tribunal that he knew he was not allowed to work in Australia as the holder of a Bridging C visa with a no work condition attached and he decided, admittedly in difficult circumstances based on the applicant’s evidence of incurring rising debts, to work anyway. In the Tribunal’s view, the applicant’s evidence indicates this was not his only option for the reasons set out earlier including at paragraph 57 of these reasons.
As noted in paragraph 31 of these reasons, the applicant came to Australia as a tourist and with the intention to try and find a means by which to secure permanent residence in Australia. If the applicant intended to make such a major change to his life by coming to Australia with the intention of seeking permanent residence here, it is curious to the Tribunal that the applicant did not provide any evidence of having any plan of how he was going to give effect to this intention. Instead, the applicant’s evidence is he toured Australia as a tourist until he began working in 2017, incurred significant debts living in Australia and it was only the informal advice of friends and acquaintances he made in Australia that ultimately led to the applicant’s application for a Protection visa.
As also noted in paragraph 31 the applicant’s representative submitted had the applicant been familiar with the concept of asylum and the process of applying for a Protection visa, he would have done so during the currency of his Visitor visa i.e. in his first month in Australia. On the evidence before the Tribunal, the applicant is the author of his own misfortune in this regard. The applicant had done sufficient research or had sufficient migration assistance to successfully obtain a Visitor visa and to then arrive in Australia. However, if the applicant’s evidence in this regard is to be believed, he did not have any or had very little knowledge about how to give effect to his plan to seek permanent residence in Australia. Compounding this, when the applicant’s Visitor visa expired he chose not to return to Indonesia using the valid plane ticket he had, but instead remained in Australia but did not seek any formal migration advice to give effect to his plan to remain in Australia permanently for another 18 months, until “late 2015”.
The Tribunal accepts there are circumstances in which the ground for cancellation arose that were outside the applicant’s reasonable control. It was not within the applicant’s control that he received less than competent migration advice in late 2015 and 2016. The applicant had also sought free legal advice in 2019, but as noted in the post hearing submission dated 5 January 2020, the timing of the availability of this advice was outside his control:
Around mid-2019, [the applicant] became aware through friends of a free legal advice services offered by [Organiation 1]. He attempted to arrange an appointment through the service however, as he was unsure of his immigration status he was asked to first obtain his files under the Freedom of Information Act. The Department released his files in September and [the applicant] again contacted the service for assistance. He was offered the next available appointment which, due to demand, was in January 2020.[13]
[13] Submission dated 5 January 2020, Tribunal file, folios 69 to 75 at folio [72]..
The Tribunal’s view is the outcome of the provision of more timely advice remains speculative, for the reasons set out earlier, including in paragraph 42, of these reasons.
The Tribunal finds that this consideration supports the cancellation of the applicant’s visa. The Tribunal would have given this consideration great weight, but given the presence of circumstances which were not within the applicant’s reasonable control, the Tribunal has given this consideration significant weight.
Past and present behaviour of the visa holder towards the department
The delegate who cancelled the applicant’s Bridging C visa, the decision that is the subject of this review, found the applicant was “compliant during interview”.
The applicant’s representative submitted that at the time of the execution of the Department’s warrant at the applicant’s then residential premises, the Department could not check the applicant’s visa status due to his specific circumstances. The representative submitted that the Department officer who interviewed the applicant had to rely on the applicant for information about both his visa status and any conditions attached to his visa. The representative submits that the applicant was so open and forthcoming with this information he virtually wrote his own cancellation. The representative’s submission continued that this level of open and honest co-operation with the Department should be encouraged and applicants who are so open and honest should not be penalised.
The Tribunal accepts the submission that the applicant co-operated fully with the Department during the cancellation process and was open and honest with the Department officer who interviewed him and decided to cancel his Bridging C visa.
The applicant’s evidence is that he has not had any other dealings with the Department, as his Protection visa application and appeal to the Tribunal were both filed by a third party assisting the applicant at the time.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.
Whether there would be consequential cancellations under s.140

The applicant’s evidence is that no-one is dependent upon his visa.

100. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s 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
101. The applicant does not make the claim that indefinite detention is a possible consequence of the cancellation of his Bridging C visa although his representative did submit that his “detention would continue for a substantial period”. During discussion with the Tribunal, the applicant’s representative agreed that it was not her view that the applicant would be detained indefinitely. The Tribunal finds that the applicant will not be indefinitely detained.
102. The applicant also does not make any claim that he is prevented from making a valid visa application without the Minister’s intervention as the applicant has made application for a Protection visa and the decision by a delegate to refuse to grant that visa is currently before the Tribunal (differently constituted) for review.
103. In the delegate’s decision to cancel the applicant’s visa, under the section titled ‘Other relevant reasons (including mandatory legal consequences)’ the delegate wrote “NIL.”
104. The applicant is currently being held in immigration detention. The cancellation of his visa will see the applicant continue to be held in immigration detention as he would be an unlawful non-citizen, at least until there is an outcome on the review of his Protection visa application.
105. This consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.
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
106. The applicant’s evidence is that he does not have any children.
107. During the Tribunal hearing the applicant’s representative submitted:
·There is a real possibility that the applicant could be returned to Indonesia irrespective of the fact that he has a review of his Protection visa application pending because of the way in which ss.197C and 198 of the Act operate and the positive obligation on migration officers to remove unlawful non-citizens irrespective of whether Australia has completed a non-refoulement assessment in respect of the applicant; and
·This means that refoulement of the applicant contrary to international law is a possibility.

108. The applicant’s representative agreed during the hearing to address this submission in more detail in the written submission dated 5 January 2020. The applicant’s post hearing submissions do not address these matters raised by the applicant’s representative during the hearing.
109. The Tribunal acknowledges that s.197C of the Act provides that for the purposes of s.198 of the Act it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen and the duty on a migration officer under s.198 of the Act to remove as soon as reasonably practicable an unlawful non-citizen from Australia arises irrespective of whether there has been an assessment of Australia’s non-refoulement obligations in respect of that non-citizen.
110. What has not been made clear to the Tribunal by the applicant’s representative is under what provision of s.198 the applicant may be removed, given he has applied for a substantive visa in the form of a Protection visa.
111. In relation to Australia’s potential non-refoulement obligations toward the applicant more generally, non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
112. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
113. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. It is not apparent to the Tribunal that there is anything in the applicant’s circumstances which prevents these claims of harm being canvassed in the review of his Protection visa application.
114. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act. It has also considered claims of harm against which a protection visa would not provide protection (see BCR16 v MIBP (2017) 248 FCR 456 and Goundar v MIBP [2016] FCA 1203).
115. In Ibrahim it was argued by the applicant in that case, and not disputed by the Minister, that the protection obligations under the Act are narrower than those under international law, with the following example given of a situation that would attract the operation of the Refugees Convention but not the provisions of the Act:
the ‘internal relocation principle’ by which persons may be found to be refugees within the meaning of the Refugees Convention if they have a well-founded fear of persecution in one part of their home country, and it would not be reasonable to expect them to relocate to another part… [14]
[14] Ibrahim v Minister for Home Affairs [2019] FCAFC 89 at paragraph 95.

116. It was not argued or submitted before the Tribunal that the internal relocation principle may apply to the applicant. It is not evident to the Tribunal that there are any matters in the applicant’s circumstances that engage non-refoulement obligations that are broader than the protection obligations that may be owed to the applicant under the Act or that the applicant has claims of harm against which a protection visa would not provide protection.
117. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
118. The applicant’s Bridging C visa is a temporary visa.
119. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Any other relevant matters
120. The applicant’s representative submitted during the hearing that in accordance with the decision of the Full Federal Court in Minister for Home Affairsv Omar[15] that there is a residual obligation on the Tribunal to consider when addressing the ‘Any other relevant matters’ consideration, why the visa should not be cancelled and that is for the Tribunal to turn its mind, outside the framework of protection, to what the applicant would face if they were to be returned to their home country. The representative’s oral submission was this residual obligation is not a full protection assessment but is just considering at a very general level somebody’s claim that bad things would happen to them essentially if they were exposed to the possibility of removal to their home country. The representative described this as a more generalised consideration of the human cost of the exercise of the discretion to cancel a visa (or not) under s.116 of the Act. The applicant’s representative told the Tribunal she would address these submissions in more detail in her post hearing submission to the Tribunal.
[15] Minister for Home Affairs v Omar [2019] FCAFC 188
121. In the submission to the Tribunal dated 5 January 2020, the applicant’s representative submitted:
We refer the Tribunal to [the applicant]’s personal statement of 23 December 2019 for his complete background.
[The applicant] is a national of the Republic of Indonesia. He is [age] years of age and was born in [Northern] Sumatra. [The applicant] is of Chinese ethnicity and Christian faith and, as such, belongs to an ethnic and religious minority in Indonesia.
Ethnic and religious discrimination against Chinese populations in Sumatra limited the employment opportunities available to [the applicant]’s father and accordingly he moved the family to Jakarta. [The applicant] was raised in poverty, as he recalls:
My family did not have very much money growing up at all. My father did different labouring jobs and my mother was a housewife her whole life. I have one other sibling – a sister, who is now married and lives who her family.

Shortly after moving to Jakarta, [the applicant]’s father passed away in 1998, leaving the family without a breadwinner. From that time, [the applicant]’s mother became reliant on her extended family to support the children. In [the applicant]’s words they ‘lived a very poor and difficult life.’
In the same year, mass anti-Chinese riots broke out in Jakarta, terrorising the minority community. [The applicant] recalls:
There was a lot of violence throughout the city and native Indonesians looted Chinese homes and properties and killed many Chinese people, calling them foreigners. Peoples properties and shops were burned down and they were left without a way to support their families. It was very frightening and sad for us. I remember that some of the groups of natives at the time would say that Chinese people were taking over the country and taking their jobs but that was not the case for our family – we did not have anything, and my mother did not work at all. We were poor and just trying to survive.

In the years that followed after the riots, ethnic discrimination and extortion continued. [The applicant] describes groups of ‘locals’ (meaning Muslim Javanese residents of Jakarta) confronting his family at home and demanding payment, on pain of ransacking. Finally, in 2004, [the applicant] recalls their home was ransacked and their limited, modest possessions stolen. A complaint made to the police brought no recourse.
Shortly after that, [the applicant]’s mother encouraged him to travel to [Country 1] to find work, fearing that he would not be able to support them given the employment discrimination rife in Jakarta. [The applicant]’s mother and aunt had a friend in [Country 1] who was able to provide [the applicant] with labouring work, which in turn would allow him legal basis to remain in the county. [The applicant] remained in [Country 1] for almost ten years, between 2004 and 2014. He saved what money he could from the experience, and remitted the remainder to his mother to support her.
[The applicant] was forced to return to Jakarta in 2014, when his mother’s friend left the country and he was thus unable to continue at work. On his return to Jakarta, [the applicant] found the discrimination and threats against the ethnic Chinese community to be unchanged. [16]
[16] Submission dated 5 January 2020, Tribunal file, folios 69 to 75 at folio 73.

122. These claims were expanded upon in the section of the representative’s submission addressing the consideration of the applicant’s purpose for travel to and stay in Australia:
[The applicant] reasons (sic) for remaining in Australia are compelling; namely, to pursue genuine and legitimate claims for refugee status. Given time constraints, it has not been possible to fully explore Eric’s (sic) protection claims in the present review, though a summary is provided in his statement of 23 December 2019. From this summary, the Tribunal may surmise that [the applicant] seeks protection on the basis of ethnic and religious discrimination in northern Sumatra, and Jakarta, as a Christian of Chinese ethnicity. [The applicant] recounts past experiences of discrimination and physical abuse, including a home invasion in 2004 followed by repeated extortion attempts by Javanese ‘locals.’
We submit that [the applicant]’s claims for protection are legitimate and well-founded, and he should accordingly be permitted to remain in the community so that he may seek proper legal advice and assistance to prepare his case. Should the Tribunal fail to exercise its discretion, [the applicant] would remain in detention until the Tribunal determined the review in relation to his Protection visa application. He would face the extraordinary difficulty of attempting to obtain legal assistance to prepare his claims while detained. We submit that this is an unduly punitive result in [the applicant]’s circumstances, and an unnecessary waste of the public resources which would be expended on his detention.
Authoritative country sources make clear the legitimate basis of [the applicant]’s claims. The Department of Foreign Affairs and Trade’s most recent country information report on Indonesia confirms [the applicant]’s accounts of the wide-scale riots and ethnic tensions in 1998: [footnote omitted]
3.6 The Suharto-era New Order regime implemented a range of measures that discriminated against Chinese-Indonesians. The law prohibited Chinese language newspapers, schools and cultural expressions, and many Chinese Indonesians were pressured to take Indonesian names. Some ethnic Chinese had difficulty obtaining citizenship and Chinese Indonesians were required to carry a document proving their Indonesian citizenship. As noted in Recent History, in May 1998 during the Asian financial crisis, rioters targeted the ethnic Chinese community due to their perceived wealth. As many as 1,000 Chinese Indonesians died in incidents related to the riots, women were raped, and businesses were burned or looted.

The report further confirms the contemporary persistence of anti-Chinese sentiment and discrimination: [footnote omitted]
3.10 Anti-Chinese sentiment in Indonesia intersects with religious and economic issues. Islamic organisations blamed China for a supposed upsurge in communist sentiment, a politically sensitive subject (see also Recent History), in mid-2016. Increased Chinese investment in Indonesia has also caused local critics to express concerns about imported Chinese labour and Chinese control over national assets.
3.11 Small-scale local riots took place in a town in North Sumatra in 2016, following an allegation of blasphemy against a Chinese Indonesian woman (see Blasphemy and Defamation of Religion). While the riots were ostensibly anti-Buddhist, most Indonesian Buddhists are ethnically Chinese and local media described the riots as anti-Chinese and stated that some Chinese families had fled the region. A number of youths were arrested, prosecuted and imprisoned in the wake of the riots.

[The applicant] has serious and compelling claims for protection. Because of the extremely limited assistance provided by his former agent, and the time constraints relating to his current review process, he has not yet had the opportunity to fully articulate and present those claims. He should be provided such an opportunity, by release into the community, where he might be connected with a range of community based legal services offering assistance to asylum seekers. [The applicant]’s Protection visa application – made on legitimate and sound bases – provides a compelling reason for him to remain in the Australian community. [17]
[17] Submission dated 5 January 2020, Tribunal file, folios 69 to 75 at folios 71 and 72 (back).

123. It is not clear to the Tribunal that Omar establishes the principle claimed by the applicant’s representative in her oral submissions.
124. Omar involved the exercise of the Minister’s power under s.501CA of the Act to revoke the cancellation of a visa made on character grounds under s.501(3A) of the Act, if the person whose visa was cancelled makes representations to the Minister and the Minister decides the person passes the character test as defined in s.501 of the Act or that there is another reason why the original decision to cancel the person’s visa should be revoked.
125. The factual circumstances in Omar were that Mr Omar is an adult Somali national who was orphaned as a child, enslaved as a child soldier and who eventually came to Australia to live with relatives. Mr Omar’s Partner visa was subsequently cancelled under s.501(3A) on the basis he had a substantial criminal record and at the time was serving a full-time sentence of imprisonment of 12 months for contravening a community corrections order. In 2016 Mr Omar made representations seeking the revocation by the Minister of the decision to cancel his visa. Those submissions provided details of Mr Omar’s intellectual disability, cognitive impairment and severe mental health issues, which included a diagnosis of schizophrenia, a condition which in Mr Omar’s case was not able to be effectively managed through the use of medication. The submissions also made claims about the lack of mental health care services and facilities in Somalia and the treatment of the mentally ill by imprisoning them, chaining them and separating them society, causing additional hardship for those with mental illness as Somalian society is traditionally communal and family orientated. These submissions were supported by recent medical reports assessing Mr Omar, a 2010 World Health Organisation assessment of the situation for those with mental health issues in Somalia and a 2017 Department of Foreign Affairs and Trade country information report which stated the Federal Government of Somalia had announced in 2015 that failed asylum seekers in need of psychological and mental health support could not be returned to Somalia at present, amongst other supporting documents.
126. The Assistant Minister declined to revoke the cancellation of Mr Omar’s visa in February 2017. The Assistant Minister’s 13 page statement of reasons referred in detail to the submissions made by Mr Omar and included statements that the Assistant Minister had considered all relevant matters.
127. The Full Federal Court found that the Assistant Minister failed to engage fully and meaningfully in an active intellectual process with “… serious and significant matters raised on behalf of [Mr Omar] and which were supported by other material.” Even though the Assistant Minister’s reasons stated he had considered or taken into account the representations, the Full Federal Court found the Assistant Minister had made findings on some of the key representations but then failed to make any explicit or implicit findings, such as whether he accepted or rejected, other representations which were significant representations clearly expressed on the risk of harm. The representations of concern included the lack of mental health care available in Somalia and the imprisoning and chaining of those suffering mental illness in Somalia.
128. The Full Federal Court found the general statements of consideration in the Assistant Minister’s reasons did not discharge the Assistant Minister’s obligation to engage fully and meaningfully in an active intellectual process with the significant representations made on Mr Omar’s behalf which were of such significance that if they had been properly considered in the relevant legal sense, could have led to a different outcome in the Assistant Minister’s decision.

129. In the course of their reasons, the Full Federal Court surmised that the Assistant Minister failed to engage fully and meaningfully in an active intellectual process with Mr Omar’s representations because of the Assistant Minister’s belief that they could be deferred and dealt with at a later stage of the decision making process, such as in the context of a protection visa application. The Court found:
But to proceed in that fashion is to fail to recognise and give effect to the distinction identified by Robertson J in DOB18 at [185] (with who Logan J agreed)… .[18]
[18] Minister for Home Affairs v Omar [2019] FCAFC 188 at paragraph 44.

130. The Court set out this distinction earlier in its reasons:
As Robertson J said (with Logan J agreeing) in DOB18 v Minister for Home Affairs
[2019] FCAFC 63 at [185]-[186]:
… In my view there is a relevant distinction between considering harm, or the risk of harm and hardship, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. That distinction follows the difference between the claims, on the one hand, and the characterisation of those claims as giving rise to non-refoulement obligations (which are concerned with a State party returning a person to another state), on the other hand.
In my opinion this distinction is not accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under
s 501BA(2).

131. The Tribunal notes the information provided by the applicant in his written statement dated 23 December 2019 and in the written and oral submissions of the applicant’s representative. In the written submission quoted in paragraph 120 of these reasons, the applicant’s representative summarised the applicant’s claim that Australia owes him protection obligations because there is a real risk the applicant will suffer significant harm because of the alleged ongoing ethnic and religious discrimination in northern Sumatra and Jakarta the applicant will experience as a Christian of Chinese ethnicity, these claims being supported by the applicant’s recollection of his past experiences of discrimination and physical abuse, including a home invasion in 2004 followed by repeated extortion attempts by Javanese ‘locals.’ In short, the applicant claims to have a well-founded fear of being persecuted for reasons of his race as an Indonesian of Chinese descent and for reasons of his religion as a Christian.
132. These claims are in part based on a 25 January 2019 Country Information Report on Indonesia published by the Department of Foreign Affairs and Trade (DFAT).
133. In relation to the persecution of Indonesians of Chinese descent the DFAT report states:
3.7 Since the end of the New Order regime in 1998, successive governments have removed most official policy measures discriminating against ethnically Chinese Indonesians. Chinese New Year is celebrated as a national public holiday, Confucianism is an officially recognised religion, Chinese cultural performances and languages are accepted, and the Constitution no longer distinguishes between ethnic Chinese and ‘indigenous’ Indonesians, with barriers to citizenship removed. In 2014, then-President Yudhoyono issued a regulation changing the Indonesian word used to designate ‘of Chinese descent’ from one which was often associated with racial slurs. A number of Chinese Indonesians have held high office and work in a range of sectors, including the police, clergy and the business community.
3.8 Some anti-Chinese sentiment remains at a societal level. Although many Chinese Indonesians are not wealthy, most of the country’s richest and most prominent businesspeople are ethnically Chinese Indonesian, which is a source of resentment for some non-Chinese Indonesians.
…
3.13 With the notable exception of the 2016 riots, which may have been partly motivated by racial tensions, anti-Chinese violence has been low since events in 1998. Although memories of the crisis have caused continued anxiety amongst many members of the Chinese Indonesian community, exacerbated by events such as the Ahok blasphemy trial and the 2016 riots, DFAT assesses that Chinese Indonesians currently face a low risk of violence. Persistent anti-Chinese sentiment may lead to low levels of societal discrimination.

134. In relation to the freedom of Indonesians to choose and practice the religion of their choice the DFAT report states:
3.19 Religious pluralism is an established part of modern Indonesia and a wide range of local and international sources consider that inter-faith tolerance remains strong. Local sources do, however, report an increase in localised instances of religious intolerance over the past decade, including threats from hard-line Islamist organisations.

135. The Tribunal accepts the applicant’s evidence that he feels he was discriminated against growing up in Sumatra because he was of Chinese descent, that the 1998 riots in Jakarta left him feeling frightened and sad, that after the riots he feels he experienced verbal abuse because of his appearance as a person of Chinese descent and felt there were limited employment opportunities for people of Chinese descent, his family experienced threats of extortion, that his family home was looted in 2004 and that when he returned to Indonesia in 2014 he continued to experience many of these things leading him to conclude that he could make a better life in Australia rather than Indonesia where he felt he would continue to experience discrimination and have limited employment and other opportunities.
136. The Tribunal also notes the applicant’s written statement refers to his religion as Buddhist[19] and does not refer to the applicant being or converting to Christianity, although the Tribunal does not consider this significant for present purposes.
[19] Applicant’s written statement dated 23 December 2019, Tribunal file, folios 65 and 66, at paragraph 6.
137. The Tribunal does not accept, based on the information provided by or on behalf of the applicant and the information in the DFAT report, that the applicant’s claims for protection are “compelling” as submitted by his representative.
138. The information in the DFAT report does not support the applicant’s claims, based on his historical experiences and last residence in Indonesia in 2014, that if the applicant returned to Indonesia he would experience discrimination, extortion and other threats of harm based on the applicant being an Indonesian of Chinese descent or a Christian (or Buddhist) in a manner that would engage Australia’s obligations under the Act or international law to either not return the applicant to Indonesia or to provide him protection.
139. DFAT has assessed that Indonesians of Chinese ethnicity presently face low risks of violence, low levels of societal discrimination and that religious pluralism, including the practice of Christianity and Buddhism, is an established part of modern Indonesia with inter-faith tolerance remaining strong.
140. The Tribunal finds that this aspect of this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Conclusion
141. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. The Tribunal finds that the considerations that weigh in support of the cancellation of the applicant’s visa, namely the extent of his compliance with visa conditions and the circumstances in which the ground for cancellation arose, outweigh those considerations which weigh against the cancellation of the applicant’s visa.
DECISION
142. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.
Michael Ison
Senior Member

[2020] AATA 826

9 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice