2012625 (Migration)

[2021] AATA 1058

2012625 (Migration) [2021] AATA 1058 (16 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2012625

MEMBER:Justin Owen

DATE:16 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 16 February 2021 at 11:18am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – risk to the health, safety or good order of a segment of the Australian community – applicant charged with criminal offences – applicant granted conditional bail – applicant’s child born in Australia – applicant’s presence in Australia is or may be a risk – financial hardship – best interests of the Child – decision under review affirmed           

LEGISLATION

Crimes Act (NSW), s 61
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

CASES

Gong v MIBP [2016] FCCA 561

Tien v MIMA (1998) 89 FCR 80

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

1. This is an application for review of a decision dated 7 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of India.  He arrived in Australia with his spouse [in] February 2019 as the holder of a Visitor visa which was valid for three months.  On 1 May 2019 he lodged an application for a Protection visa.  The applicant was granted the bridging visa the subject of this decision on 17 May 2019 to allow him to remain in Australia whilst his application for the Protection visa was considered.

3. On 12 June 2020 the delegate issued the applicant with a ‘Notice of Intention to Consider Cancellation’ (NOICC) of the bridging visa under s.116(1)(e)(i) of the Act. This section provides that the Minister may cancel a visa if satisfied that the presence of its holder in Australia is or may be, or would be or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

4. The basis of the NOICC was that the NSW Police provided information to the Department that the applicant had been charged on [a day in] June 2020 with:

   · Sexually touch another person without consent – Tier 2 – under section 61KC(a) of the Crimes Act [in] May 2020

   · Carry out sexual act with another without consent – Tier 2 – under section 61 ke (A) of the Crimes Act [in] May 2020

   · Sexually touch another person without consent – Tier 2 – section 61KC (a) of the Crimes Act on [a day in] June 2020 

5. The delegate’s decision record the applicant provided the Tribunal summarised the   appeared to exist.  It was alleged on the evening of [a day in] May 2020 the applicant was travelling on a Sydney train and alighted at a station.  At this time a female also alighted by the train and was allegedly followed by the applicant. Shortly afterwards it is alleged the applicant caught up with the female and pinched her on the bottom whilst she was looking at her telephone.  The female turned around however she noticed the applicant walking away.  The female reported the matter to Police who subsequently examined Closed Circuit TV footage and identified the applicant as the offender.  This alleged behaviour is the basis of the first charge. 

6. The delegate’s decision outlines the details surrounding the second charge.  Police obtained CCTV footage from inside the train carriage where the applicant had sat opposite two young females where he was touching his pelvic area, putting his hand down his pants for some time, and rubbing the exterior of his pants until the females moved to another carriage.

7. The delegate’s decision record outlines the details surrounding the third charge.  It was alleged on [a day in] June 2020 the applicant had alighted form a train and was near a school at a time when school had finished for the day.  It is alleged the applicant crossed the road at the same time as a group of students and he touched and squeezed the buttocks of [an age]-year old female school student.  The incident was subsequently reported to Police who examined CCTV and identified the applicant as the perpetrator, arresting him on [a day in] June 2020. 

8. These three matters are now before the Courts.

9. The delegate subsequently issued the applicant with a NOICC of his bridging visa under s.116(1)(e) of the Act.

10. The delegate’s decision record stated that in the applicant’s response to the Department’s Notice of Intention to Cancel his visa on 26 June 2020, the applicant did not agree there were grounds for cancellation.  The delegate noted that the applicant did not however state whether or not there were grounds for cancellation of his visa.  The applicant instead enquired about the consequences of cancellation and the potential for his and his wife’s detention.  He asked questions about the potential length of time in immigration detention; whether he and his wife would be permitted to stay together in immigration detention; and if their baby born whilst in detention would be permitted to remain with them.  The decision record states that a response was provided stating that a request for an extension is possible if the applicant notified in writing and that visa cancellation would not affect his wife’s migration status.

11. The applicant’s wife subsequently wrote to the Department on behalf of the applicant on 29 June 2020, requesting that, given he had not been found guilty of any charges and his matters were still before the Court, that the delegate defer the Notice of intention to cancel his visa until the Court heard his charges.  The decision record states that the applicant, after being charged [in] June 2020, was refused bail and placed on remand until his next Court appearance [in] July 2020.  The applicant was released from remand on conditional bail [earlier in] July 2020 and was to attend a further hearing of the charges [in] January 2021.

12. The delegate noted in her decision record that the applicant’s alleged actions demonstrated behaviour of a planned and sexual predatory nature on vulnerable females, including a child.  The delegate noted sexual offences can have long-lasting effects on victims/survivors, their families and the community.  The delegate noted the consequences of sexual assault on victims, including psychological and emotional effects.      

13. Having considered all the material before her, the delegate found that the ground for cancellation (namely that the applicant is or may be, or would or might be, a risk to the health, safety or good order of the Australian community) existed.  The delegate then considered whether to exercise the discretion to cancel the visa.  The delegate decided that the reasons for not cancelling the visa were insufficient to outweigh the reasons for cancelling the visa.  

14. Consequently, on the bridging visa was cancelled on 7 August 2020 and the applicant became an unlawful non-citizen. 

15. On 8 August 2020 the applicant applied to the Tribunal for a review of the cancellation decision. 

16. The applicant appeared before the Tribunal on 4 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

17. The applicant provided the Tribunal with a small number of submissions.  The Tribunal has taken these as well as documents into account.  These documents include:

    ·     Medical certificate by [a] Medical Officer of [a named] Hospital, Bangalore, diagnosing the applicant with Paraphimosis with recurrent Balanoposthitis since 15 February 2004

    ·     Correspondence from the applicant’s GP [dated] 31 December 2020 stating he had met the applicant for the first time that day and had found signs of chronic foreskin infection.

    ·     Bail Acknowledgement dated [in] July 2020 stating that the applicant had been charged with three separate offences including Sexually touch another person without consent – T2; Carry out sexual act without consent – T2 and Sexually touch another person without consent – T2 and was bailed to appear at [Court 1] on [a day in] July 2020.  The Bail Acknowledgement outlines Bail Conditions agreed to by the applicant including to be of good behaviour; surrender Passport to the Registrar of the Court before release and not apply for another passport; to live at his premises in [Suburb 1] and not be absent between 5pm and 7am unless in the company of his wife; to not drink alcohol; to not enter any premises where alcohol is sold; and to not make any [deliveries] to residential locations.  

    · The delegate’s decision record of 7 August 2020 cancelling his Subclass 010 (Bridging A) visa under s.116 of the Act.

18. 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

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

    Does the ground for cancellation exist?

20. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

21. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

22. At the hearing the Tribunal noted the details of the applicant’s charges as outlined in the decision record, his release on conditional bail and the requirement that he appear before [Court 1] [in] January 2021.  The Tribunal asked if there was any update in relation to his charges.  The applicant stated that he was remained on conditional bail and his next Court appearance was scheduled to be [in] July 2021. 

23. The Tribunal noted that the charges he was facing were matters for the criminal justice system, not the Tribunal, and those matters would be determined by the Court.  The Tribunal warned the applicant that it nevertheless was going to ask him some questions in relation to the charges on the basis they were relevant to the grounds for the cancellation of his visa.  The Tribunal warned the applicant that it would be writing a decision record.  The Tribunal informed the applicant that he did not have to answer any questions concerning his criminal charges on the grounds that anything he said may incriminate him in relation to those charges.  The Tribunal, noting the applicant was without representation at the hearing, explained what ‘incriminate’ meant.  The Tribunal asked the applicant if he had a lawyer in relation to his charges.  He said that he did.  The Tribunal enquired of the applicant if he wished to talk to his lawyer about self-incrimination.  The applicant responded that he was aware of what he was doing and was not guilty.  The Tribunal asked the applicant if he wished to answer questions it would put to him in relation to his criminal charges.  He stated he did. The Tribunal is satisfied the applicant was adequately warned about self-incrimination in relation to his charges. 

24. The Tribunal discussed the charges with the applicant.  He denied all three charges, stating that health reasons in relation to pain and itching of his penis were the reason for his actions in relation to the ‘carry out sexual act’ charge of [that day in] May 2020. The medical evidence he has provided pertaining of two letters from his GP and a doctor in Bangalore have been submitted as evidence of his disorder. He also claimed to have been receiving treatment for health issues pertaining to his penis and stated that he was on a waiting list for a circumcision procedure at [an Australian] Hospital.   In relation to the two charges of [the days in] May 2020 and [June] 2020 ‘sexually touch another person without consent’ he has denied pinching or touching the female victims concerned and raised issues concerning his leg. 

25. At the hearing the applicant had copies of the CCTV footage pertaining to his charges and hinsisted upon the Tribunal viewing the footage.   The applicant stated that he planned to plead not guilty to all three charges when he appears in Court [in] July 2021. 

26. The Tribunal acknowledges that the applicant is pleading not guilty to the charges against him when he appears before the Court.  The Tribunal is conscious of the fact that a person charged with criminal offences is presumed innocent.  He is not guilty until the charges are proven against him beyond reasonable doubt.  Beyond reasonable doubt is acknowledged as the ‘highest test in the land’.  The Tribunal also acknowledges that there is no information or evidence before it that the applicant has a criminal history or that, apart from the conduct that gives rise to these three charges, the applicant is, might, or may be a risk to the Australian community or young females as a segment of the Australian community. 

27. However, considering the gravity of the charges, the Tribunal struggles to accept that it can do anything other than find the ground for the cancellation is made out. The Tribunal accepts that the applicant is emphatic in his denials in relation to the three charges. The applicant denies the two separate charges pertaining to his allegedly grabbing the buttocks and touching females, stating he was walking quickly and had issues with his knee or leg which he has intimated explains his conduct.  He presented the CCTV evidence to the Tribunal.  The Tribunal does not accept the applicant’s own account and claims concerning these two events.  The applicant has not provided any medical evidence in support of claims about his knee or leg.  In relation to the ‘carry out sexual act’ charge and his behaviour on the train, the Tribunal notes the limited medical evidence he has presented in relation to his genitalia and his claims that his behaviour in having his hand down his pants was to bring relief to his medical condition that was causing itching and pain.  The Tribunal does not accept the applicant’s own account and claim that his conduct was attributed to his medical condition.  The Tribunal has considered the medical evidence submitted but does not accept that this explains his behaviour in putting his hand down his pants and rubbing the area directly in front of female passengers sitting on a train.   The Tribunal considers the evidence before it suggests the applicant is or may be, or would or might be, a risk to the health, safety or good order of a segment of the Australian community, namely young females.

28. The Tribunal has taken into account the firm denials of the applicant.  The Tribunal however notes that complaints were made to the Police by young women separately in relation to the applicant’s alleged criminal behaviour who may also be emphatic in their allegations.  The NSW Police, having reviewed CCTV and interviewed the alleged victims, have charged the applicant.  The NSW Director of Public Prosecutions has decided to prosecute.  Such is the gravity of the alleged offences and the concern of the relevant authorities, the applicant was remanded in custody for some six weeks before being placed under significant and onerous restrictions on his personal liberty through his conditional bail. These include a 14-hour a day curfew on leaving his home alone, along with restrictions on working as [a delivery] driver to residential premises, a previous job he undertook. The best place to determine whether the applicant is guilty or not guilty of the charges is at his pending trial.  It is not the role of the Tribunal to determine the likely result of the trial, or the strength of the prosecution case.   

29. The Tribunal’s role instead is to consider whether the ground for the cancellation of the applicant’s bridging visa under s.116(1)(e) is made out. Such a determination does not require the Tribunal to wait until the charges have been finalised by the Court as the applicant has submitted. The Tribunal notes that under s.116(1)(e)(i) it needs to be satisfied that the applicant’s presence in Australia ‘is or may be’ a risk to the health, safety and good order of the Australian community or a segment of the Australian community. The Tribunal notes the level of satisfaction required of ‘may be’ is lower than ‘is’ and consequently the cancellation ground can exist if there is a possibility that the person may be a risk. The Tribunal considers s.116(1)(e)(i) does not therefore require a finding of guilt or a conviction in order to be enlivened. In the circumstances of this case, the applicant has been charged with several serious sexual offences, including one that pertains to a child. A person who is alleged to have done what the applicant has allegedly done is, may be or might be risk to the safety of a section of the Australian community, namely young females as a segment of the Australian community. Given the criminal charges remain pending, the Tribunal cannot be satisfied that there is no risk as to result in the ground for cancellation not being made out.

30. On the evidence before it, the Tribunal is satisfied that grounds exist to cancel the applicant’s Bridging A (Subclass 010) visa under s.116(1)(e)(i) of the Act. The Tribunal is satisfied that the applicant may pose a risk to the safety of a segment of the Australian community, that is young females.

31. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

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

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

33. The evidence before the Tribunal indicates that the applicant arrived in Australia [in] February 2019 with his wife on Visitor visas which were valid for three months.  The decision record the applicant provided the Tribunal states that on his incoming passenger card, the applicant indicated that his main reason for travelling to Australia was for a holiday and he only intended to remain in Australia for a week.  The applicant remained in Australia however for three months and lodged a Protection visa application on 1 May 2019. 

1. Based on the Protection visa application, the applicant was granted a Bridging A (subclass 010) visa on 17 May 2019, to be held whilst the Department considered his Protection visa application.  The applicant held this visa until 7 August 2020 when it was cancelled by the delegate on the ground outlined in this decision record.

2. At the hearing the applicant claimed he had originally only intended to stay in Australia for a week.  He initially stated that he did not know what had happened to his Protection visa application but later intimated it had not been resolved and he simply wasn’t sure.  The Tribunal is of the firm view that, despite the applicant’s claims, the real reason for the applicant’s original entry into Australia was to claim Protection.  The applicant briefly spoke about his Protection claim and stated that he had no intention to remain in Australia permanently, rather he retained a desire to return to India once he was no longer persecuted at home. 

3. The Tribunal is of the opinion that the purpose of the applicant’s travel to and stay in Australia was to lodge a Protection visa.  Given the applicant’s claims are still to be finally resolved, the Tribunal considers the applicant arguably retains a need to remain in Australia. 

4. On the evidence before it concerning the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor slightly against cancelling the visa. 

   The extent of compliance with visa conditions

5. The evidence indicates that the applicant’s Bridging visa was cancelled by the delegate due to the delegate being satisfied that the applicant is or may be, or would or might be a risk to a segment of the Australian community, namely young females.  The applicant stated at the hearing that he had complied with all other visa conditions.  There is no evidence before the Tribunal of any other non-compliance in relation to any other conditions subject to which the applicant’s visa was granted.  The Tribunal weighs this factor slightly against cancelling the visa. 

   The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

6. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family members should his Bridging visa be cancelled.

7. The applicant has claimed that he will suffer from hardship and will suffer future hardship if the visa cancellation is not set aside.  The Tribunal is satisfied that the cancellation of the applicant’s Bridging Visa A will impose some hardship upon the applicant. 

8. The applicant spoke about his wife – who holds a separate bridging visa on the basis of her own Protection visa application – and their [daughter] who was born in Sydney.  Whilst the applicant has not presented the Tribunal with any evidence pertaining to the identity or indeed existence of his claimed daughter, for the purposes of this review the Tribunal accepts that the applicant and his wife have [a] daughter, and he is the child’s biological father.  He has stated that neither he nor his wife have family in Australia.

9. The applicant stated that he had married his wife in 2018 prior to travelling to Australia.  He stated that he, his wife and child now resided together in an apartment in [Suburb 1].  The applicant stated that he earns $300 to $500 per week working as [an occupation 1] in the Indian community four days a week.  He stated these monies are utilised for living expenses such as rent and food. He stated his wife has savings that he also draws down from when he needs money.  The applicant stated that prior to having a child his wife worked for cash in hand jobs for ten hours a week.  He stated that in his culture there is an expectation that he will take care of his wife.

10. The Tribunal has considered the hardship that might be caused to his wife and child from a range of perspectives including financial and emotional.  The Tribunal accepts there will be a degree of financial hardship faced by the applicant’s wife should his bridging visa A be cancelled and if the applicant is either detained or is granted a bridging visa E without work rights. The Tribunal accepts that there will be a degree of increased financial hardship for his wife should the applicant’s visa remain cancelled and he depart Australia.  The Tribunal does not consider it unreasonable for a couple or an individual to make certain changes to their spending and lifestyle due to circumstances such as those presented in this review.

11. The Tribunal nevertheless notes that the applicant’s wife has, as stated by the applicant, financial savings that he is currently drawing down from.  She can choose to utilise those for her living expenses.  Whilst also caring for a young child is undoubtedly a challenge, the applicant’s wife can choose to again seek some limited paid employment if she so desires.  The Tribunal accepts that there will be increased financial hardship on the applicant’s wife and his child should his bridging visa be cancelled.  The Tribunal does not consider it however to be onerous.  The Tribunal also notes that, should the applicant’s bridging visa A be cancelled, the applicant may be able to apply for a bridging visa ‘E’ (as an alternative to detention) to remain in Australia for the finalisation of his Protection application.  If granted the applicant may be able to apply for work rights on the grounds of financial hardship.  The Tribunal on the evidence before it considers the degree of financial hardship that may be caused on the applicant through the cancellation of his visa to be limited.    

12. The Tribunal accepts there will be increased hardship on the applicant’s wife in providing the care and support for their child without the potential physical presence of the applicant.  The Tribunal notes nevertheless that the applicant’s wife is already, according to the applicant, providing the bulk of the care the child requires.  The Tribunal accepts children of this age have considerable care needs.  The applicant however can again apply for a bridging visa E that may allow him to remain in the community before his charges are heard by the Court and whilst his Protection visa application is resolved.

13. The Tribunal accepts that there may be an increased degree of emotional hardship to the applicant, his wife and child should his bridging visa A be cancelled.  The Tribunal however notes that the applicant again retains the opportunity to apply for a bridging visa E that would allow him to remain in the community with his wife and child.  Even if he were to go into immigration detention or depart Australia, the Tribunal notes that he can remain in contact with his wife and child via the telephone, social media and other modern communication mediums that would allow the parties to continue to provide emotional support to each other. 

14. The Tribunal has considered the applicant’s claim of his need for medical treatment for a range of ailments related to his genitalia and whether cancellation of his bridging visa A would represent a hardship in relation to his need for medical treatment.  The applicant has provided some limited medical evidence pertaining to these claims and stated he was on a waiting list in the public health system for a circumcision as part of his treatment.  The Tribunal notes the applicant’s claims but gives them little weight.  The applicant will be able to access health treatment via the public system should he either be moved to immigration detention or if he were to successfully apply for a bridging visa E should his bridging visa A be cancelled.  Even if he were to depart Australia, the Tribunal does not accept, in the absence of any evidence, that treatment for his claimed conditions – as identified by the applicant through his submission from a medical professional in Bangalore – is not accessible or available.  The applicant also raised some previous medical issues he had faced in 2018 that had required him to visit [a named] Hospital.  The Tribunal is satisfied that the applicant will be able to receive public health support either if he is detained or if he applies and is successful in being granted a Bridging visa E.

15. The Tribunal has considered the general claim of the hardship that may be imposed on the applicant by the Tribunal not waiting for his criminal charges to be held and instead making a decision on the evidence before it.  The Tribunal does not accept this claim.  As previously explained in this decision record, the Tribunal’s deliberations concern the applicant’s bridging visa and whether his presence in Australia is or may be, or would or might be, a risk to the health, safety or good order of a segment of the Australian community.  This is a different issue and a different – indeed lower -  threshold to the applicant’s criminal charges that must be decided beyond reasonable doubt in Court.  The Tribunal does not accept the applicant is facing any particular hardship by its moving to decision on this review prior to the resolution of his criminal charges – which are still over five months away.  The Tribunal has considered whether cancellation of the applicant’s bridging visa A will cause hardship to his ability to participate fully in the criminal proceedings he his facing.  The Tribunal notes that should the applicant’s bridging visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a bridging visa ‘E’ that may allow him to remain in the community and participate in the preparation for his criminal proceedings.  Should he instead be taken into immigration detention, the applicant will retain the ability to seek legal advice.  The Tribunal finds that the applicant can continue to participate and attend the Court in July whether by being granted a bridging visa E or if he is in immigration detention.  The Tribunal considers any hardship caused by the cancellation of his bridging visa A to the applicant in relation to his criminal proceedings to be limited.

16. The Tribunal has considered the issue of the applicant’s Protection visa application.  The applicant has claimed returning to India would cause him hardship.  He has stated that he fears he will be targeted for ‘political reasons’ if he returns to India.  The applicant claimed that he was being targeted by three powerful and influential people who can do whatever they please.  The Tribunal asked the applicant what these individuals allegedly wanted him to do.  The applicant made clear to the Tribunal he had raised these concerns in his Protection application. The applicant stated that the father of these three individuals had also harassed his own father.  The Tribunal, finding the applicant’s claims very vague and rambling, asked what evidence he had to support his claims concerning these threats.  He responded they were influential people and it was hard to oppose them.  In relation to evidence, he responded that cameras were not as prevalent in India as in Australia so, it was intimated, it was more difficult to present such evidence.

17. The Tribunal has considered the applicant’s oral testimony and found it lacked, in the Tribunal’s opinion, any particular detail or any specificity of any threat.  The applicant also raised ‘family issues’ and talked about a number of issues that emerged with his father in law after his marriage, again without any detail or specificity.  

18. The Tribunal notes the very limited evidence the applicant has provided the Tribunal in support of his assertions about his fears of returning to India beyond his own testimony and  unspecified ‘threats’ against him by three unnamed individuals.  The Tribunal notes the applicant’s Protection application, which he illustrated significant confusion over.  He initially stated it had been granted before conceding it had not and essentially remained unresolved. The Tribunal notes the Protection application is, in fact, before the Tribunal for review.  This will be determined by a differently constituted Tribunal.    On the limited evidence before it in this existing matter, this Tribunal is not convinced that returning to India will result in the applicant facing the hardship claims and danger he has claimed at the Tribunal’s hearing.  The Tribunal furthermore notes however that should the applicant’s bridging visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a bridging visa ‘E’ that may allow him to remain in Australia pending the resolution of his Protection application and review. The Tribunal also notes that the applicant may otherwise be able to continue his participation in the review concerning his Protection applicant whilst in immigration detention. The Tribunal considers any hardship caused by the cancellation of his bridging visa A to the applicant in relation to his Protection visa review and his claimed fears of returning to India to be limited.

19. The Tribunal notes that the applicant’s Protection claims and fear of returning to India is a separate matter to the Tribunal’s existing review and will be decided on its own merits via his Protection matter.  The Tribunal’s decision in this bridging visa A cancellation may mean the applicant may enter immigration detention or have to apply for a bridging visa E whilst he awaits his day in Court and whilst his Protection matter is resolved.  The Tribunal considers any hardship caused to his Protection visa application is limited.

20. The Tribunal has considered all the evidence before it pertaining to the hardship cancellation of the applicant’s visa will have upon the applicant, his wife and child.  The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia.  The Tribunal however considers the hardship that will be caused to the applicant and his family should his visa be cancelled to be limited.   As stated above when considering the degree of hardship that may be caused to the applicant across a range of areas, the Tribunal does however note that should the applicant’s bridging visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a bridging visa ‘E’ that may allow him to remain in Australia pending the resolution and finalisation of his Protection visa application. 

21. In relation to the degree of hardship that may be caused, the Tribunal weights this factor slightly against cancelling the visa.   

    The circumstances in which ground for cancellation arose

22. The ground for the cancellation of the applicant’s visa arose as a result of the applicant’s alleged sexual and predatory actions towards a number of young women, including a child. These actions were reported to the NSW Police by the alleged victims, who subsequently charged the applicant with three offences. The applicant was initially refused bail and remanded in custody before being granted conditional bail. The delegate considered, based upon the applicant’s alleged behaviour that gave rise to the charges, that his presence in Australia may pose a risk to the safety of a segment of the Australian population, being young females. The applicant’s bridging visa A was subsequently cancelled under s.116(1)(e)(i) of the Act.

23. The Tribunal notes that the applicant was granted conditional bail [in] July 2021 which included a range of measures including an overnight curfew at his residence if not in the presence of his wife; a ban on consuming alcohol; and a prohibition on working as [a driver] doing residential deliveries.  The Tribunal notes there is no evidence before it that the applicant has been involved in any further incidents that have required the involvement of the Police since his charges in June 2020. 

24. At the hearing the applicant discussed the circumstances in which the two events occurred that led to the laying of criminal charges by the NSW Police and the subsequent cancellation of his bridging visa A by the delegate.  The applicant did not concede any of the charges and denied the behaviour which has been alleged by the alleged victims and the NSW Police after reviewing CCTV from both the railway station and the train respectively. 

25. The applicant spoke about each charge. The Tribunal notes that it warned the applicant about incrimination and self-incrimination in some detail. In relation to the first charge ‘Sexually touch another person without consent – Tier 2 – under section 61KC(a) of the Crimes Act’,  the applicant stated he had alighted from the train with multiple other persons including the alleged victim.  He stated he had been walking fast and had an injured knee.  His walking quickly appears to have been presented as a reason for the incident.  He denies grabbing the alleged victim on the bottom as charged.  He presented some CCTV footage he stated was from the alleged event at the Tribunal hearing.  At the applicant’s request, the Tribunal observed the footage.  The Tribunal again notes, it is not its role to make findings of guilt or innocence in relation to his criminal charges. 

26. In relation to the second charge, ‘Carry out sexual act with another without consent – Tier 2 – under section 61 ke (A) of the Crimes Act’, the applicant conceded in his oral testimony that he had his hand inside his pants as alleged and opposite a number of young females that were also travelling on the train. The applicant blamed the medical issues he claims with his penis as the reason for this and said that he had felt itching and pain, hence his actions. He stated at the hearing that he had been receiving treatment for these medical issues. The Tribunal notes the two pieces of correspondence the applicant has submitted in relation to issues surrounding his genitalia, one an older letter from Bangalore and another on 31 December 2020, many months after the alleged offences.

27. In relation to the third charge, dated almost a month later, ‘Sexually touch another person without consent – Tier 2 – section 61KC (a) of the Crimes Act’, the applicant stated he was crossing the road at the same time as some school students and was carrying his lunch.  The applicant had CCTV footage at the hearing from the alleged event.  The applicant agreed that he had identified himself in the footage to the NSW Police but he denied touching the buttocks of the young female school student as has been alleged. 

28. The applicant discussed with the Tribunal the circumstances that led to the laying of these criminal charges.  He stated that [details deleted].  He said he subsequently attended [a named] Police Station to discuss the charges.  He stated he was interviewed by the Police about the potential charges and was locked in the cells.  He stated he did not have a lawyer present.  A Sri Lankan interpreter attended for a few hours. The applicant said he made an application for bail that was refused.  He was remanded in custody for almost two months before being released on conditional bail.  The applicant submitted a copy of his bail conditions dated July 2020 to the Tribunal.  He stated he had appeared in Court again in January 2021 and was due to appear again [in] July 2021 where he would be pleading not guilty to all three charges.  The applicant stated he had had no adverse interactions with the Police either prior to these charges or subsequently.

29. The Tribunal has noted the applicant’s claim that he is not guilty of all three charges and his explanation for his behaviour at each of these alleged events.  The Tribunal has taken into account the fact that there is no evidence before it of any criminal behaviour by the applicant either prior to or after the laying of these charges by the NSW Police.     

30. The Tribunal gives greater weight however to the fact the applicant has nevertheless been charged with a number of significant and serious sexual offences, including one matter involving a child.  The Tribunal recognises the immense and catastrophic damage that can be done to a victim from sexual offences and notes the three separate charges have the potential to suggest there may be, or might be planned and systemic behaviour of a predatory nature towards young females.  As stated previously, it is not the Tribunal’s role to determine the guilt of the applicant in relation to these alleged offences. The Tribunal acknowledges that the applicant is pleading not guilty to the charges against him when he appears before the Court.  The Tribunal is conscious of the fact that a person charged with criminal offences is presumed innocent.  He is not guilty until the charges are proven against him beyond reasonable doubt.  The Tribunal nevertheless considers the charges - made by the NSW Police and the prosecution undertaken by the Director of Public Prosecutions – suggests that there is admissible evidence that is capable of establishing each element of the three offences, there are reasonable prospects for conviction, and that the matter should proceed in the public interest. 

1. The Tribunal considers that a person who is alleged to have behaved and committed acts as what the applicant has allegedly done is or may be, or would or might be, a risk to a segment of the Australian community, being young females.  

2. In relation to the circumstances in which the ground for cancellation arose, the Tribunal weighs this factor strongly in favour of cancelling the applicant’s visa. 

   Past and present behaviour of the visa holder towards the Department

3. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The decision record the applicant provided indicates the applicant responded to the NOICC and has engaged in the cancellation consideration process.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

   Whether there would be consequential cancellations under s.140

4. The applicant confirmed at the hearing there are no dependent visa holders as part of his visa.  The Tribunal notes that the applicant’s wife was listed as a dependent applicant of the applicant in his Protection visa application.  The Tribunal notes however that the applicant’s wife holds a bridging visa A in association with the Protection visa application in her own right.  As her bridging visa A is not a substantive visa, his wife’s bridging visa A shall be unaffected should the applicant’s own bridging visa A be cancelled.  The Tribunal therefore finds that there will be no consequential cancellations under s. 140 if the visa is cancelled.  The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa. 

   Mandatory legal consequences of a decision to cancel the visa

5. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Act if he does not voluntarily depart Australia.  The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled.  The applicant will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  Depending on the visa applied, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.  The Tribunal notes that the applicant currently has an application for a Protection visa currently unresolved.  Should the applicant’s bridging visa ‘A’ be cancelled, the applicant may be able to apply for a bridging visa ‘E’ that may allow the applicant to remain in Australia until his Protection application is finally resolved.  The legal consequences of the cancellation specific to the applicant is that he is likely to be removed to Immigration Detention upon cancellation unless granted another visa - the bridging visa ‘E’ - that allows him to stay for or pending the resolution of his Protection application.  On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa

   International obligations – non-refoulment

6. At the Tribunal hearing the applicant spoke about his fear of returning to India and the dangers should he return.  He raised his Protection visa application.  The applicant was confused and somewhat evasive about the application, claiming initially to have been granted the visa before claiming he was unaware of the status of his Protection visa application and intimating it was unresolved.  The Tribunal notes that the application is in fact unresolved and before the Tribunal.     

7. The cancellation of the applicant’s bridging visa ‘A’ would not prevent the applicant and his wife from participating in their Protection visa review and presenting their Protection claims more fully.  The Tribunal notes that his eligibility for Protection will be a review and assessment by the Tribunal that is separate to this review pertaining to the applicant’s current bridging visa. Given the applicant’s wife, as outlined in the delegate’s decision record, was a dependent on the applicant’s Protection visa application – and her own bridging visa A has not been cancelled – the applicant’s wife similarly would not be prevented from participating in their Protection visa review and presenting their Protection claims more fully to the Tribunal. 

8. The Tribunal considers that, because of the applicant’s ongoing and unresolved Protection visa review, cancellation of the applicant’s bridging visa A will not breach Australia’s non-refoulment obligations that may be owed to the applicant.   The Tribunal weighs this factor neither in favour nor against cancelling the visa. 

   The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

9. The applicant has claimed to be the father of [a young] daughter with his wife.  Whilst the applicant has not provided any evidence concerning the existence of the child, for the purposes of this review, the Tribunal accepts that he has a [young] daughter in Australia as claimed with his wife. The applicant provided little insight into his role caring for his [daughter] beyond going to work four days per week and being a financial provider to the family. 

10. The applicant said he wanted a better future and better life for his family and daughter.  He stated his wife was worried about the outcome of his bridging visa cancellation and his criminal charges. 

11. The Tribunal notes that courts have found generally it is in the best interests of the child to remain with their family.  The Tribunal furthermore notes that Australia is a signatory to the United Nations Convention on the Rights of the Child.  Ministerial Direction No 63, applies to the cancellation of Bridging E Visas where the grounds in r. 2.43(1)(p) or (q) of the Regulations (which include criminal charges), directs decision-makers to treat Best Interests of The Child (BIOC) as a primary consideration. For other Part 5 and 7 cancellations there is no such Direction in force, but the Department’s Visa Cancellation Instructions instruct delegates to treat BIOC as a primary consideration. The Tribunal, noting the matter before it relates to the cancellation instead of a bridging visa A, put the applicant on notice at the hearing that it would be treating BIOC as a primary consideration. 

12. There are no submissions before the Tribunal in relation to the applicant’s daughter and her best interests. The Tribunal has considered the applicant’s general claim concerning his daughter, but it does not accept that the applicant’s child will be necessarily separated from the applicant should his bridging visa A be cancelled.  The applicant can instead apply for a bridging visa E that may allow him to remain in the community with his wife and daughter whilst he awaits his day in Court and whilst his Protection visa review remains unresolved. There is also importantly no evidence, or claim made, that the applicant’s daughter will not be able to remain with her mother, who retains her own bridging visa A, should the applicant be refused any application for a bridging visa E and instead placed in immigration detention. 

13. Whilst recognising the applicant and his wife’s unresolved Protection visa application and claimed fear of returning to India, the Tribunal notes that both the applicant and his wife are Indian citizens and have the legal right to return to and live in India as citizens:  the applicant’s daughter can subsequently acquire Indian citizenship if her parents declare that she does not hold the passport of another country and her birth is registered at an Indian consulate within one year of the date of her birth or with the permission of the Central Indian Government, after the expiry of the said period. This would enable the applicant’s daughter to acquire the same nationality as her parents and, in the Tribunal’s opinion, allow them to travel and stay together. 

14. The Tribunal does not consider on the evidence before it that cancellation of the applicant’s visa would precipitate a breach of Australia’s international obligations in relation to the CROC and his [daughter]. The exercise of the Tribunal’s consideration of the discretionary provisions in the cancellation of a bridging visa A is not bound to mandatory considerations under unenacted international law.  The Tribunal is of the view that its consideration of the discretionary provisions represents adherence to the legislation contained in the Act and the Regulations rather than a breach of any of Australia’s international obligations as a signatory to the UN’s Convention on the Rights of the Child.

15. The Tribunal notes that it has considered the Best Interests of the Child as a primary consideration in this review and has concluded the best interests of the child, on the evidence before it, is for her to remain with his mother.  There is nothing before the Tribunal to suggest that the applicant’s daughter will not be able to continue doing so should the applicant’s bridging visa A be cancelled.

16. Even though it is arguably not in the best interests of the child to cancel the applicant’s visa – the Tribunal recognises the potential loss of any income from the applicant may cause some hardship -  the Tribunal notes that she can remain with her mother who can continue to provide her with care and support, even if the applicant is unable to acquire a bridging visa E and remain in the community.  

17. The Tribunal has considered the best interests of the applicant’s daughter who may be affected by the cancellation of the applicant’s bridging visa A.  The Tribunal has treated her interests as a primary consideration and weighs the matter against cancelling the applicant’s visa. 

    Any other relevant matters

18. No other claims were made by the applicant, other than those already considered in this decision, that were relevant to the Tribunal’s consideration of the discretion to cancel. 

    Conclusion

19. The Tribunal has weighed the considerations.  In this case, the Tribunal has considered the applicant’s emphatic denial of the criminal charges, the lack of any evidence or claim of any adverse interactions both prior and subsequent to the events surrounding these charges, and the fact that the applicant, quite obviously, has not yet been found guilty by a Court of these charges.  The Tribunal notes that there is no evidence before it that the applicant has not complied with his bail conditions.  The Tribunal has taken into account the fact that the applicant now has [a] daughter, whose interest the Tribunal has considered a primary consideration.  The applicant has also taken into account the applicant’s claimed employment and his role in financially contributing to his family, as well as the potential impact cancellation of his bridging visa A may have upon the day to day functioning of his small family unit.  The Tribunal has had regard to his claims as to the hardship he and his wife will face should his visa be cancelled and the fact he has a Protection visa application review that remains unresolved. 

20. However, the Tribunal considered these factors were considerably outweighed by the other considerations. The Tribunal notes that the Commonwealth Government has a low tolerance for potentially criminal behaviour by non – citizens who are in the Australian community on a temporary basis and do not hold a substantive visa.  The NSW Police and the Director of Public Prosecutions have considered the admissible evidence capable of establishing each element of the offences for which the applicant has been charged.  The Tribunal considers that if the allegations pertaining to the applicant are true, it would be trite to say that he may or might pose a risk to a section of the Australian community, namely young women.  The Tribunal considers these are serious charges.  The Tribunal notes that one of the charges pertains to a young child. The charges suggest the potential of systemic, opportunistic and predatory behaviour by the applicant towards a section of the community. The Tribunal notes that the consequences for the victims of sexual offences – especially children – are serious and be the cause of long-term damage and trauma to individuals.    

21. The Tribunal accepts that both the applicant and his wife and child will face a degree of hardship in the cancellation of the applicant’s visa.  This hardship however is outweighed, in the Tribunal’s opinion, by the gravity and seriousness of the matters for which the applicant has been charged and the fact that, in the Tribunal’s strong opinion, he may be or might be a risk to a segment of the Australian community being young females.     

22. The Tribunal considers that the nature of the criminal charges and the circumstances of the events that led to these charges are such that the Tribunal considers the visa should be cancelled.  The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively.

23. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Justin Owen
    Senior Member