2104124 (Migration)

[2021] AATA 2613

2104124 (Migration) [2021] AATA 2613 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2104124

MEMBER:R. Skaros

DATE:22 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 June 2021 at 2:03pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to the health or safety of an individual – applicant charged with multiple criminal offences – declarations of good character – applicant released on bail – presumption of innocence – studies near completion – hardship for the applicant’s spouse – spouse’s Bridging visa in her own right – decision under review affirmed     

LEGISLATION

Bail Act 1982 (WA)
Criminal Code, ss 220, 221, 313, 324, 326
Migration Act 1958, ss 48, 116, 120, 140
Migration Regulations 1994, r 2.12

CASES

Gong v MIBP [2016] FCCA 561

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 March 2021 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 delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual. After considering the matters relevant to the exercise of discretion, the delegate decided that the applicant’s visa should be cancelled. The applicant provided a copy of the delegate’s decision record to the Tribunal.

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

4. The applicant appeared before the Tribunal by video from Yongah Hill Detention Centre on 25 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, [named], by telephone.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing by telephone.

6. The Department’s file included numerous electronic files that were the subject of a non-disclosure certificate under s.375A of the Act. The certificate provides that disclosure of the stated files would be contrary to public interest because it would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance, and would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

7. A copy of the certificate was sent to the applicant’s representative by email prior to the hearing. Issues relating to the validity of the certificate and relevance of the information covered by the certificate were discussed with the applicant and the representative at the hearing. The Tribunal acknowledged that the information in the documents covered by the certificate was relevant to the issues in the review, but noted that the information, to the extent that it was relevant, was disclosed to the applicant in the Notice of Intention to Consider Cancellation and the Invitation to Comment on Information, and that the applicant had an opportunity to respond to the information. After some discussion about the nature of the information covered by the certificate, no issue was taken with the validity of the certificate.

8. The Tribunal is satisfied that the certificate, which was properly signed and dated, provides valid public interest reasons for the non-disclosure of the stated documents. The Tribunal is also satisfied that the information relevant to the issues in the review have been disclosed to the applicant by the Department and that the applicant has had an opportunity to respond.

9. The Tribunal has carefully considered the evidence before it and, for the following reasons, has decided that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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].

    Background

12. The applicant is a citizen of India. He travelled to Australia on a student visa [in] February 2015. He applied for further student visas onshore. The most recent student visa application was made on 15 March 2020 and the applicant was granted a Bridging A visa, which is the subject of this review, in association with that application.

13. Information received by the Department from Western Australia Police (WAPOL) indicated that the applicant had been charged with multiple criminal offences. On the basis of that information, the Department issued a Notice of Intention to Consider Cancellation under s.116 of the Act.

14. The Notice, dated 4 January 2021, set out the particulars of the ground for cancellation, which included the following offences with which the applicant had been charged.

    ·Possessing child exploitation material ([number] counts)

    ·Aggravated Sexual Penetration without Consent ([number] counts)

    ·Threatened to distribute an intimate image ([number] counts)

    ·Common assault in circumstances of aggravation or racial aggravation

15. It was indicated in the Notice that the applicant had been remanded in custody and was subsequently released on bail [in] September 2020. It was noted that the applicant was scheduled to appear before [Court 1] on [a day in] May 2021 for a mention hearing in relation to the common assault charge and to appear before [Court 2] on [a day in] May 2021 in relation to the remaining charges.

16. In response to the Notice, on 18 January 2021, the Department received a written submission from the applicant’s representative and various supporting documents.

17. In the submission, the representative provided details of the applicant’s immigration and study history, his relationship with the complainant, his marriage to [his spouse] in July 2018 and [the applicant’s spouse’s] subsequent arrival in Australia in May 2019 as the holder of a student dependent visa.

18. It was submitted that the complainant had been living with the applicant, and later with the applicant and his spouse, in shared accommodation until March 2020. It was submitted that the complainant had never mentioned any wrongdoing by the applicant towards her or anyone and that the charges came as a complete shock to the applicant. It was submitted that the applicant believes the complainant may have been influenced by family members to make false allegations against him or may be attempting to gain permanent residence on the basis of protection claims. It was submitted that the applicant maintains his innocence.

19. In relation to the charge of possessing child exploitation material, it was submitted that the applicant was a member of a [messaging application] ‘boys only’ club with a group of old friends through which he received adult jokes and pornographic material which would auto download on his phone. It was stated that the applicant would delete material that was of a sexual nature without opening it which would go directly to the recycle bin on his phone. It was submitted that the content was found in the recycle bin of the applicant’s phone, that the content was posted by another person and that the applicant did not see or download the content deliberately. It was submitted that the applicant denies committing any of the other alleged offence.

20. It was submitted that the applicant has been granted bail with very strict conditions, including reporting to a police station every day, and has given a surety of $[amount] and a personal undertaking of $[amount]. It was submitted that the applicant is not a risk to the community and that he has contributed to the economy through his employment. 

21. Supporting documents provided to the Department included declarations of good character from the applicant’s spouse and several friends. Also provided was a copy of the Affidavits submitted to [Court 3] in support of the applicant’s bail application, a letter from a medical practitioner confirming [the applicant’s spouse’s] pregnancy, offer of employment for the applicant, an Indian police clearance indicating that the applicant does not have a criminal record and information addressed to WAPOL about the complainant attempting to contact the applicant’s spouse, including attending [the applicant’s spouse’s] place of work and seeking to engage in conversation with her.

22. Following receipt of the Statement of Material Facts (SOMF) from WAPOL, which detailed the allegations made against the applicant and the related charges, [in] February 2021, the Department sent the applicant an Invitation to Comment on Information under s.120 of the Act.     

23. The information indicates that [details deleted].

24. On 23 February 2021, the applicant’s representative responded to the invitation by way of written submissions and supporting documents. It was submitted that the delegate focused exclusively on information in the SOMF and the charges against the applicant, which are yet to be proven, without considering that the applicant had been released on bail following consideration by [Court 3] of extensive material, including from the WA DPP. The representative set out the conditions of bail, which were quite strict and included a surety, daily reporting, surrender of passport and not contacting the complainant. It was submitted that the bail conditions were imposed to manage any perceived or potential risk to the community and the complainant, while allowing the applicant, who is afforded the presumption of innocence, to be released into the community. It was submitted that the applicant, since being charged by police has not made any attempt to contact the complainant, and that it was the complainant who attempted to contact the applicant’s spouse when he was in criminal custody and that the police prosecutor had been notified of this. It was submitted that the applicant poses no real risk to the complainant or any other individual, that the complainant had not made allegations that she fears such risk and there is no evidence that the applicant is or may be an unacceptable risk. Submissions were also made regarding the hardship that would be experienced if the applicant’s visa is cancelled, which are discussed further below.

25. The supporting documents provided included copies of supporting character declarations and affidavits previously provided to the Department and an updated letter confirming [the applicant’s spouse’s] pregnancy.

26. Also provided to the Department was a letter from the applicant’s criminal lawyers, [business name], detailing the offences with which the applicant has been charged. They confirmed that the applicant had pleaded not guilty and that he was granted bail with strict conditions. In commenting on the delegate’s findings, the applicant’s lawyer noted that the SOMF does not constitute evidence against the applicant for the purpose of the criminal charges and that the delegate’s comments regarding the applicant’s culpability do not accord with the presumption of innocence. The letter detailed the principles in relation to the granting of bail and [Court 3’s] consideration of the risk of an accused person to the wider community in determining whether to grant bail. The Tribunal has had regard to those submissions, including the caselaw and evidence considered by [Court 3] in deciding to grant the applicant bail.

    Review application

27. The Tribunal received a bundle of documents which included updated submissions from the representative regarding the ground of cancellation and consideration of the discretion. Also provided were copies of documents previously provided to the Department and an updated letter from [the applicant’s spouse’s] medical practitioner regarding the progress of her pregnancy and support she requires. The Tribunal also received statutory declarations from the applicant and his spouse to which it has had regard. The applicant also provided Confirmation of Enrolment in the [specified] courses.

28. Updated information regarding the discontinuance of some charges and addition of other charges against the applicant was also provided to the Tribunal. The representative provided a copy of a letter from the applicant’s criminal lawyers, together with a copy of a Discontinuance notice indicating that the discontinuance of [number] charges relating to threatening to unlawfully distribute intimate images and [number] sexual offence charges. The Indictment notice details the following charges preferred against the applicant:

    ·[number counts] of aggravated sexual penetration: s.326 of the Criminal Code

    ·[number counts] of aggravated indecent assault: s.324 of the Criminal Code

    ·[number counts] of possession of child exploitation material: s.220 of the Criminal code

    ·[number counts] of aggravated common assault: s.313(1)(a) of the Criminal Code

    Discussion of the issues and evidence at the hearing

29. After explaining the issues in the review, and before the applicant gave his evidence, the Tribunal explained to the applicant that it may ask him questions about the charges pending against him and cautioned him that any evidence he gives in the present proceedings may be used against him in the criminal proceedings. The Tribunal explained to the applicant the privilege against self-incrimination and informed him that he could rely on that privilege if he did not want to answer some of the Tribunal’s questions.

30. The Tribunal discussed with the applicant the information set out in the Notice, which particularised the offences that he has been charged with, and the Invitation, which detailed the allegations that were relied upon by WAPOL to charge the applicant. The Tribunal explained to the applicant that while it acknowledged that the charges remained pending and that he has not been found guilty of any offence, the information nevertheless raises the concern that his presence in Australia may pose risk to the Australian community or a segment of the community or to an individual, namely the complainant.

31. In response, the applicant stated that many of the charges against him have already been discontinued and he has pleaded not guilty to the remaining charges. In response to the Tribunal’s query about the charges that remained pending, the representative stated that there are [number] sexual offences charges, which he explained will be the subject of a separate trial to the [number] charges of possessing child exploitation material.  

32. The applicant stated that he has maintained his innocence and he is confident he will get justice. The Tribunal discussed with the applicant some of the information in the SOMF as set out in the Invitation. It noted that [details deleted]. In response, the applicant stated that he is not guilty of anything, he has done nothing wrong and he has not been convicted of anything.

33. The Tribunal explained to the applicant that the issue for the Tribunal is not whether he is innocent or guilty of the charges against him, but whether, on the evidence before it, he may or might be a risk to the health or safety of the Australian community, a segment of the community or an individual. The Tribunal noted that it was quite a low threshold and explained that the laying of criminal charges against him, and the basis on which those charges were laid, give rise to the possibility that his presence in the community may or might pose such a risk. In response, the applicant stated that he has been in Australia since 2015 and has been living peacefully in the community until the charges were laid against him. He stated that he was granted bail with very strict conditions, including not contacting the complainant, reporting every day, and paying a surety. He stated that he has done nothing wrong and has complied with all the conditions and will continue to comply with all the conditions.

    Consideration

34. The Tribunal was informed by the applicant’s representative, on advice from the applicant’s criminal lawyers, that the indictable charges against the applicant, for which there will be two separate trials, will not be listed until September 2021 and March 2022. The non-indictable offence (common assault) will not be dealt with until after the indicatable matters have been finalised. As the applicant’s criminal matters will not be resolved until at least three to nine months from now, the Tribunal does not consider it unreasonable to proceed to a decision on the evidence before it. Furthermore, the applicant has not requested the Tribunal to delay the making of its decision until the conclusion of the criminal trials. In the circumstances, the Tribunal will make the relevant assessment on the information available to it at the time of this decision.

35. In determining whether the ground of cancellation exists, the Tribunal is mindful that the applicant has pleaded not guilty to the charges against him and that he has not been convicted of any offence. As explained to the applicant at hearing, it is not the role of this Tribunal to determine his guilt or innocence. The issue for the Tribunal is whether, on the evidence before it, the applicant’s presence in Australia is or may be or would or might be a risk to the health, safety or good order of the community, a segment of the community or an individual.  

36. As considered in Gong, whether a person ‘may’ or ‘might’ be a risk within the meaning of s.116(1)(e)(i) does not require any direct, solid, or certain foundation before the cancellation power can arise. It can arise on the possibility that some event occurred in the past. Where s.116(1)(e)(i) asks whether there ‘may be a risk’, the possibility that the relevant event occurred in the past may have some logical bearing on whether it might happen in the future, and whether the person may be a risk.

37. The evidence before the Tribunal is that the applicant has been charged with serious offences. The Tribunal acknowledges that a number of charges against the applicant have been discontinued, however, many were replaced with other charges preferred against the applicant. In relation to the possession of child exploitation material, the Tribunal acknowledges the applicant’s evidence that he deleted any pornographic material received on his phone via [a messaging application]. While the applicant may be successful in mounting a defence against these charges, as provided for in s.221A of the Criminal Code, the evidence before the Tribunal is that child exploitation material was found on the applicant’s mobile phone. The Tribunal cannot discount the possibility that the applicant may have indefensibly been in possession of child exploitation material. Nor can it discount the possibility that he may engage in such conduct in future.

1. In relation to the sexual offences, the Tribunal acknowledges that the applicant’s vehement denial of any wrongdoing, and he may well be found not guilty of the charges against him, however, the allegations made against the applicant by the complainant resulted in the laying of charges against the applicant. While the evidence relating to the allegations will be tested in the upcoming trials and the Tribunal is mindful that the allegations have not yet been proven, the Tribunal cannot discount the possibility that the alleged sexual offences against the complainant may have occurred.

2. The Tribunal accepts that the applicant has been granted bail by [Court 3], however, this does not establish that the applicant’s presence in the community will not pose a risk. The issues considered by the Court in deciding whether to grant bail, as set out in Part C Schedule 1 of the Bail Act 1982 (WA), focuses on whether a proposed risk can be minimised to an acceptable standard in order to grant bail in a particular case. In the applicant’s case, the Court considered that any risk posed by the applicant being in the community could be sufficiently mitigated by imposing strict bail conditions. The issues considered by the Court in granting bail are very different to those that must be considered by this Tribunal.

3. The Tribunal accepts that the applicant did not breach any bail conditions or, to its knowledge, engage in any criminal conduct during the time that he was out on bail, namely from September 2020 until April 2021 when he was taken into immigration detention following the cancellation of his Bridging A visa. The Tribunal has also considered the applicant’s claim that he will continue to comply with bail conditions, including reporting every day and not contacting the complainant, and that he has paid a substantial surety. While this may be the case, the Tribunal is unable to be satisfied, given the seriousness of the charges, that the applicant may or would or might not be a risk to the community, a segment of the community or the complainant.

4. Having carefully considered the evidence before it, the Tribunal considers that there is a possibility that the applicant may have engaged in the alleged conduct which led to him being charged with [number] criminal offences and for which he has been committed to stand trial. The Tribunal is satisfied on the evidence before it that s.116(1)(e) has been enlivened and finds that the applicant’s presence in Australia may 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 and individual, namely the complainant.

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

   Consideration of discretion

6. 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, and whether the visa holder has a compelling need to remain in Australia.

7. Information in the delegate’s decision record, which the applicant does not dispute, indicates that the applicant travelled to Australia as the holder of a student visa [in] February 2015 to undertake studies in the [Degree 1] course. It was noted that the applicant applied for, and was granted, a further student visa to complete this course. The applicant applied for a further student visa on 15 March 2020 and was granted the Bridging A visa in association with that application.

8. It was noted in the decision record that, according to the Provider Registration and International Student Management System (PRISMS), the applicant has completed part of his [Degree 1] course, but that his enrolment in that course was cancelled on 30 December 2019 due to unsatisfactory course progress with his last day of study being recorded as 30 December 2019.

9. The Tribunal discussed the above information with the applicant at the hearing and noted that despite being in Australia since February 2015, he does not appear to have completed any qualifications, and that this may suggest that he has not fulfilled the purpose of his travel and stay in Australia. In response, the applicant stated that in December 2019 he decided to defer his studies for 6 months because one of the units he had to undertake was not being offered until the following semester, which would commence in June 2020. The applicant stated that he was supposed to re-enrol in July 2020 but could not do so because he was taken into custody and was not granted bail until September 2020, by which time it was too late to enrol.

10. When asked why he had not been able to complete the [Degree 1] in the five years he was able to study, the applicant stated that he first had to undertake an English course as he did not get the required English scores to gain entrance directly into the masters course at [a named] University. He stated that he found the studies quite difficult and was unable to understand the lectures and so reduced his study load. He stated that after he was charged, he was taken to prison and the University cancelled his enrolment.

11. When asked why he needed to remain in Australia, the applicant stated that he has spent more than $50,000 on his qualification and wants to complete his studies. The Tribunal noted that he had provided a CoE for a diploma and advanced diploma level courses and asked why he would provide evidence of enrolment of those courses if his intention is to complete the [Degree 1] course. In response, the applicant stated that the Department had asked for evidence of his enrolment and he chose to do a diploma. He stated that before his visa expired, on 15 March 2020, he requested a new CoE from the University, but it was not provided to him because there was an issue with one of the units. He stated that to continue further studies he decided to obtain a CoE for the diploma studies, though the university later issued him a CoE to complete his degree and he hopes to complete the [Degree 1] in future.

12. The evidence before the Tribunal suggests that the applicant obtained a CoE for the diploma and advanced diploma level courses to satisfy a requirement of the student visa application, being that he is enrolled in a course of study in Australia. The Tribunal acknowledges the reasons for why the applicant has not been able to obtain enrolment from the University to complete his [Degree 1], however, the Tribunal is also concerned that despite being in Australia since 2015 and up to when he was taken into custody in May 2020, a period of almost five years, that the applicant has not been able to complete his [Degree 1] course. This raises concerns about whether the applicant has the aptitude to achieve that qualification. In any case, the Tribunal accepts that the applicant has spent a large sum of money on his studies to date, that he only has one unit outstanding and that he would like to remain in Australia to complete the [Degree 1].

13. The Tribunal gives some weight to the above considerations in favour of not cancelling the visa.

    The extent of compliance with visa conditions, and past and present behaviour of the visa holder towards the Department

14. At the hearing the applicant gave evidence that he has never breached any of his visa conditions. The Tribunal acknowledges the comments made by the delegate that the applicant may have breached the work condition imposed on his visa as he has been offered employment of up to 30 hours of work a week by [a named business]. The Tribunal notes however that this offer of employment, which was provided as part of the applicant’s bail application, merely indicates the number of hours the employer was willing to offer the applicant each week if he is released on bail. The applicant has denied working in breach of his work condition and there is no evidence before the Tribunal which suggests that the applicant has breached any of the conditions of his previously held visas.   

15. In relation to the applicant’s behaviour towards the Department, there is no evidence before the Tribunal which suggests that the applicant has not been cooperative in his dealings with the Department.

16. The Tribunal gives some weight, albeit limited, to the above considerations in favour of not cancelling the visa.

    Circumstances in which ground of cancellation arose

17. The applicant has been charged with serious indicatable offences, including sexual offences which are alleged to have occurred since March 2018. The applicant was also charged with [number] counts of possessing child exploitation material on the basis of videos found by police on his mobile when he was arrested by police [in] May 2020.

18. In responding to the circumstances in which the ground of cancellation arose, the applicant stated that he has done nothing wrong. He stated that he has not been found guilty, that most of the charges have been discontinued and he will get justice.

19. The Tribunal acknowledges that many of the charges against the applicant have been discontinued, however, there remains [number] outstanding charges, [number] of which relate to indictable offences that carry substantial prison sentences.

20. The applicant has vehemently denied committing any offences and has pleaded not guilty of the charges against him. The Tribunal is mindful that the applicant has not yet been tried for the offences with which he has been charged and the Tribunal has been careful not to form any view about the applicant’s guilt or innocence, as this will be determined by the criminal trials. The Tribunal nevertheless considers that the offences with which the applicant has been charged are very serious.

21. The Tribunal gives significant weight to the above consideration in favour of cancelling the visa.

    The degree of hardship that may be caused

22. In their statutory declarations, the applicant and his spouse detailed the hardship that they would experience if the applicant’s Bridging A visa remained cancelled. It was stated that the applicant has been in detention since April 2021 and that this has been extremely difficult for [the applicant’s spouse] who is six months pregnant. It was stated that [his spouse], who works at [Business 1], has had to reduce her hours of work and that her income is about $200 a week. It was stated that the separation was taking its toll on [the applicant’s spouse] who has no family support in Australia. Due to their financial circumstances, [the applicant’s spouse] has not been able to visit the applicant in detention as there is no public transport and she is unable to afford a taxi. [The applicant’s spouse] detailed the physical, emotional and financial difficulties that she has experienced as a result of the applicant’s detention.

23. At the hearing the applicant indicated that the cancellation of the visa will cause a lot of hardship for him and his family. He stated that he has a lot of expenses, including substantial legal bills. He gave evidence that his family’s circumstances in India were not good due to the affects of Covid-19. He stated that businesses in India have been shut for the last one and a half years and he has not been able to get any more support from his family. He stated that while he and [his spouse] have been supported by some friends, the situation was becoming difficult as they have a lot of expenses.  

24. When asked if he and his wife had any close friends in Australia, the applicant stated that while they have some friends, they were not close. When asked about the persons who provided the statements of support, the applicant stated that he has one good friend, [named] who is the person he used to work for, and that the other letter of support was the accounts lady that used to work for his employer.  

25. When asked about the hardship that the cancellation may cause his family members, the applicant gave evidence that his spouse, who is now 6 months pregnant with their first child, is having a very hard time without him as she does not have any support. When asked if his wife was living in shared accommodation, the applicant indicated that she was and gave evidence that there was a female student renting a room in the same house but that she is busy with her studies. He stated that his wife must do everything herself, in addition to working 10 to 12 hours a week at [Business 1]. He stated that the job in [Business 1] was not easy as it required bending and carrying, and the doctor has recommended that she get some rest. He stated that they have been advised that the baby is low in the pelvis and he is concerned about the health of his wife and the baby. He stated that it is their first child and his spouse will require emotional and physical support. He stated that they have medical expenses due to medical tests.

26. [The applicant’s spouse] gave evidence that she has no physical, emotional, or financial support in Australia and that she needs her husband. She stated that her doctor advised her to rest because the baby is low in the pelvis and she has been having contractions. [The applicant’s spouse] stated that she must do all the housework on her own and that this has been difficult. She stated that they are fighting the case against the applicant, that the applicant is innocent, and they will get justice.

27. The Tribunal has considered the evidence and accepts that if the applicant’s Bridging A visa remains cancelled, and he is not granted another visa, that he will have to remain in detention and this will likely cause financial, psychological and emotional hardship for the applicant and [his spouse] as described in their written statements and oral evidence.

28. The Tribunal gives weight to the above considerations in favour of not cancelling the visa.

    Whether there would be consequential cancellations under s.140

29. It was noted in the delegates decision record that [the applicant’s spouse] holds a Bridging A visa in her own right and that if the applicant’s Bridging A visa is cancelled this will not affect [his spouse’s] Bridging A visa.

30. The representative informed the Tribunal that while the applicant and [his spouse] were granted Bridging A visas on the basis of the most recent application for a student visa, which was lodged on 15 March 2020 and in which [the applicant’s spouse] was included as a member of the family unit, [her] Bridging A visa was not consequentially cancelled and that she continues to hold a Bridging A visa.

31. It appears on the evidence before the Tribunal that [the applicant’s spouse’s] Bridging A visa would not be consequentially cancelled. In the circumstances, the Tribunal gives limited weight to this consideration in favour of not cancelling the visa.  

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

32. If the Tribunal affirms the decision to cancel the applicant’s Bridging A visa, he will remain in Immigration detention unless he is granted another visa.

33. Cancellation of the applicant’s Bridging A visa will result in the applicant being an unlawful non-citizen and, unless he is granted another visa, he will be subject to detention. Cancellation of the visa would not necessarily result in the applicant’s removal from Australia as he is still required to remain in Australia for the purposes of the criminal proceedings.  

34. If the applicant’s Bridging A visa is cancelled, he will be subject to s.48 of the Act, meaning that he will only be able to apply for limited types of visas, as provided for in r.2.12 of the Regulations whilst he is onshore.

35. If the Bridging A visa is cancelled, the applicant will also be affected by public interest criterion 4013 (PIC 4013) which, subject to limited exceptions, means he cannot be granted some types visas if he applies for those visas within three years of the Bridging A visa being cancelled.

36. The Tribunal considers the consequences of cancellation to be that which was intended by the legislation and gives limited weight to this consideration in favour of not cancelling the visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

37. In relation to non-refoulment, the applicant has given evidence that he has no concerns about returning to his home country of India. He stated would just like the opportunity to complete his studies in Australia.

38. In relation to family unity principles, the Tribunal acknowledges that if the applicant’s visa is cancelled and he is not granted any other visa, the applicant will remain in detention and will be separated from his spouse, who is pregnant with the couple’s first child. The Tribunal accepts that it would be in [the applicant’s spouse’s] interest if the visa is not cancelled and has given this consideration, as discussed above in relation to the hardship that may be caused, some weight in favour of not cancelling the visa.

39. In relation to Australia’s responsibilities regarding the best interests of any children, the Tribunal notes that for the purposes of the Convention on the Rights of the Child, a child means every human being below the age of eighteen years. The Convention does not refer to unborn children. As the child is not yet born, the Tribunal is not required to consider their interest as a primary consideration.

40. The Tribunal is satisfied that the cancellation of the applicant’s visa would not result in Australia breaching any of its international obligations. This consideration weighs in favour of cancelling the applicant’s visa. 

    Other

41. The Tribunal has also considered the letters of support and character references from the applicant’s spouse and friends, who have attested to his good character, community work and contribution to the economy. The Tribunal also acknowledges that the applicant does not have a criminal record in India as indicated by his Indian police clearance certificate. The Tribunal also accepts that the applicant has not been convicted of any offences in Australia and that, since being released on bail and until he was taken into immigration detention, he has not breached any bail conditions. These considerations are favourable to the applicant and the Tribunal gives them some weight in favour of not cancelling the visa.    

    Conclusion

42. The Tribunal has carefully considered the evidence before it and weighed up all the relevant considerations. In favour of not cancelling the visa are the applicant and [his spouse’s] personal circumstances, including the upcoming birth of their first child, and the hardship that they have experienced, and will likely experience, if the applicant’s visa remains cancelled. The Tribunal has also given some favourable weight to the applicant’s desire to remain in Australia to complete his [Degree 1], his compliance with visa conditions, his previous compliance with bail conditions, and the support he has received from his spouse and friends who believe that he is innocent of the charges against him. 

43. However, in the exercise of its discretion, the Tribunal considers that the circumstances which gave rise to the non-compliance, that is, the laying of the charges against the applicant for serious indictable offences that are alleged to have occurred since March 2018, to which the Tribunal has given substantial weight in favour of cancelling the visa, outweighs all other considerations.

1. Having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   R. Skaros
   Senior Member