2112506 (Migration)

2112506 (Migration) [2022] AATA 1551 (14 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2112506
MEMBER:James Silva
DATE:14 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 14 March 2022 at 3:48pm
CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – criminal conviction – currently subject to Apprehended Domestic Violence Order (ADVO) – unlawful non-citizen – insufficient evidence about the current family situation – lack of engagement – poor migration history – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 189, 359A
Migration Regulations 1994, r 2.43, Schedule 2; Schedule 4, PIC 4013; Schedule 8, Condition 8202

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 September 2021 made by a delegate of the Minister for Home Affairs to cancel the review applicant’s (‘the applicant’, former visa holder) Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).
The applicant is a national of the People’s Republic of China (China, PRC), born in [year]. Since 3 September 2012, he held a succession of Bridging C visas, most recently granted on 15 July 2020. These were granted in association with a protection visa application in which his wife is a primary applicant, and in which the applicant is included as members of the same family unit who do not have claims of their own.
On 14 July 2021, a delegate of Minister issued a Notice of Intention to Consider Cancellation (NOICC), as there appeared to be grounds to cancel the visa under s.116 of the Act. The applicant responded to the NOICC on 26 July 2021. On 8 September 2021, the delegate cancelled the visa under s.116(1)(g), as a prescribed ground for cancelling the visa applied to the holder. The prescribed ground was found in Regulation 2.43(1)(oa) of the Migration Regulations 1994 (the Regulations), which requires that ‘the Minister is satisfied that the holder has been convicted of a [Commonwealth, State or Territory] offence’. The applicant was convicted [in] March 2021 of several offences relating to [details deleted].
There is no dispute in relation to the grounds for cancellation. The key issue in the present case is whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Evidence
The Tribunal has before it the following relevant material:
§ The NOICC dated 14 July 2021.
§ The applicant responded on 26 July 2021[1], with a seven page statement and 14 documents relating to his health, his financial and business interests, his criminal conviction, and his family situation (including the Apprehended Domestic Violence Order to which he is subject, and his wife’s health and reliance on him). The Tribunal sets out relevant details in the body of this decision.
§ The Department file includes a number of documents, such as a Court Attendance Notice (5 December 2020), a New South Wales Police Fact Sheet ([date] December 2020), a Department Priority Caseload Assessment, and internal correspondence. The Tribunal is satisfied that the relevant information from these documents is replicated in the applicant’s NOICC response (and its attachments) and in the delegate’s decision record, which the applicant provided to the Tribunal. In other words, the other documents on file do not include adverse information that falls within the scope of s.359A of the Act.
§ The record of decision of whether to cancel under s.116 (the ‘delegate’s decision’), dated 8 September 2021.
§ The application for review had attached to it a copy of the delegate’s decision record.
§ The applicant gave oral evidence at a hearing on 17 February 2022, details of which the Tribunal records immediately below.
[1] Forwarded to the Department by his representative on 30 July 2021.
Procedural matters
On 2 December 2021, the Tribunal wrote to the applicant requesting information relevant to the review application and, where available, supporting documentation. Essentially, this concerned his current circumstances, and a number of matters that he had raised in his response to the NOICC, such as his family situation, his health and his financial affairs. The Tribunal received no reply.
The Tribunal invited the applicant to appear before it on 17 February 2022, to give evidence and present arguments. The Tribunal sent the hearing invitation to the applicant’s representative, and a courtesy copy to the applicant’s residential address, as the representative had indicated that he had difficulties contacting the applicant. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
On 13 February 2022, the Tribunal received a written response to the hearing invitation, confirming his attendance. On the form, he indicated (by ticking the relevant boxes) that there is an issue affecting the ability of him (or another person) to take part in the hearing; that he intended to rely on documents at the hearing; and that he wanted the Tribunal to take oral evidence from one or more witnesses. There were no details on these matters. The Tribunal contacted the applicant’s representative to seek urgent advice, particularly on whether there were any health or disability concerns that may affect his participation in the hearing. In one of several telephone calls on 14 February 2022, the representative noted that the applicant had recently been in hospital receiving treatment for mental health issues. He undertook to speak with the applicant and provide the Tribunal with further details. The Tribunal has received no further advice.
On 15 February 2022, the applicant appeared at the Tribunal’s Sydney office in person with a copy of the hearing invitation for 17 February 2022. A Tribunal officer checked his identity, and, speaking through a Mandarin interpreter, confirmed the arrangements for the telephone hearing on 17 February 2022, including the applicant’s telephone . The applicant said that he understood.
The applicant appeared before the Tribunal on 17 February 2022. As noted above, the hearing was conducted via teleconference, with interpretation.
§ The first part of the hearing was held with the assistance of an accredited interpreter in the Fuqing dialect of Chinese, as per the applicant’s request in the review application form. However, the interpreter did not appear familiar with Australian migration law, and there were audio problems (time lags, as well as ambient sound). The interpreter advised that she was located in [Country 1].
§ The Tribunal adjourned the hearing and resumed it shortly thereafter through an accredited interpreter in the Mandarin language, based in Australia. The applicant had requested a Mandarin interpreter on the hearing invitation response, and his representative advised on 14 February 2022 that, although Fuqing is the applicant’s preferred language, he is also fluent in Mandarin. The Tribunal did not detect any interpretation problems during the subsequent exchange.
During the hearing, the applicant often deflected questions; queried the Tribunal’s interest in certain matters; and/or gave responses that did not match the information before the Tribunal. The Tribunal is confident that these did not arise through any misunderstanding of the Tribunal’s questions or interpretion. Examples of the applicant’s responses are:
§ He declined to state how long he had been in Australia;
§ He said that he did not know his current visa status;
§ He noted that this review concerned his visa cancellation, but also went on to state that he was waiting for the delivery of an Australian passport the following day;
§ He was not sure whether he had been convicted of criminal offences in Australia, before going on to say ‘No’; and
§ Asked whether he had a representative, he queried whether the Tribunal was referring to a male or female, and then went on to say that he was unrepresented.
The applicant’s responses at the hearing were often erratic, distracted and curt. It was apparent at some points that he was briefly chatting to another person, in a hospitality or similar venue. When asked about loud slurping noises, the applicant confirmed that he was drinking a beverage. He declined to state where he was.
The Tribunal asked the applicant whether he had any current medical issues, to which he replied briefly that he did not.
Towards the end of the hearing, slot machines were increasingly audible, to the distraction of the Tribunal member and the interpreter. The Tribunal registered its concern about the applicant’s conduct, and his apparent lack of respect, or engagement in the review. It ended the hearing, and advised the applicant that it would write to him about the next steps in the review.
On 18 February 2022, the Tribunal wrote to the applicant to invite his written submission regarding his personal details (including whether his representative continues to act on his behalf); the substantive matters set out in the Tribunal’s letter of 2 December 2021; and his conduct at the hearing on 17 February 2022 (including any medical or similar evidence). The Tribunal received no reply.
On 7 March 2022, the representative advised that he had forwarded the Tribunal’s letter to the applicant, but had heard nothing more. On 8 March 2022, a Tribunal officer attempted to contact the applicant directly, several times, on the mobile telephone number he provided on 15 February 2022. The calls went unanswered. The Tribunal officer also left a voicemail message on the telephone number provided with the review application, asking him to contact the Tribunal. There has been no response.
Several issues arise regarding the applicant’s participation in this review and the hearing on 17 February 2022, that remain largely unresolved.
§ First, the applicant currently holds no visa. The Tribunal is mindful that this might affect (a) his willingness to disclose his current circumstances, including any unlawful work that he is engaged in; (b) his financial capacity; and/or (c) his practical participation at hearing, eg. if he is working unlawfully or running a business. However, the Tribunal has no further information about such factors or their impact on the applicant.
§ Second, there is minimal information about the applicant’s mental health. At hearing, he stated briefly that he has no current health issues, but, in the context of his oral evidence as a whole, the Tribunal is unable to place weight on this as a reliable statement. The representative referred to the applicant’s recent hospitalisation for (unspecified) mental health treatment, but had no further details. While the applicant’s unexpected visit to the Tribunal on 15 February 2022 and his statements at the hearing might indicate some confusion or mental health issues, the Tribunal does not have sufficient evidence to reach any conclusions.
   A letter dated 4 January 2021 from [a] consultant psychiatrist of [a] Health Care Centre, provided advice for his Legal Aid solicitor and the court, in connection with the criminal charges. It noted that on 24 December 2020, the applicant presented as ‘distressed and dejected, but not obviously psychotic or suicidal’. On 31 December 2020, he was ‘calm, but not distressed or dejected’. It opined that he suffers no diagnosable mental condition, but notes that he was upset about his wife’s reporting of domestic violence and the police investigation.
   A letter dated 19 May 2021 from Ms [A], registered psychologist, states that the applicant was referred for the treatment of anxiety and depressive symptoms, and would benefit from ongoing counselling. It notes he is living lone and has very limited social support network in Australia.
   The Tribunal has no more recent information, and is therefore not aware of the currency or relevance of these earlier reports.
   Neither the applicant nor the representative responded substantively to the Tribunal’s requests for more information about his health status, or provided details that would permit further enquiries.
§ Third, some questions may arise as to the identity of the person who participated in the hearing on 17 February 2022. However, the Tribunal notes that two days prior to the hearing, a Tribunal officer spoke with the applicant in person, checked his identity and confirmed the mobile telephone number that he had provided in his response to the hearing invitation.
§ Fourth, the Tribunal has considered the applicant’s request during the latter part of the hearing for it to be conducted in person.
   It takes into account that the applicant’s visit to the Tribunal office on 15 February 2022 may have reflected some confusion about the hearing arrangements, and/or an expectation that it would proceed in person. When a Tribunal explained that it would proceed by telephone two days later, he raised no concerns.
   The applicant accepted the hearing invitation in writing and, at the start of the hearing, indicated he was happy to proceed by telephone.
   The Tribunal acknowledges that the interpretation arrangements at the first part of the hearing, and the need to adjourn to arrange a locally-based Mandarin interpreter, caused a brief delay and possible inconvenience. It also accepts as plausible that the applicant may have preferred to discuss some aspects of his case, such as his criminal offending and family contacts, in person. With that in mind, the Tribunal would have been prepared to complete the hearing introduction, and have an initial exchange about the applicant’s current circumstances and claims, and then adjourn the hearing so that it could be resumed in person when COVID-19 regulations permitted.
   However, the applicant’s conduct and statements at hearing meant that it was not possible to cover these initial matters, and the Tribunal concluded the hearing. Since then, the applicant has not replied to the Tribunal’s post-hearing letter, and the Tribunal has been unable to contact him, through his representative or directly, to discuss the next steps in the review. In these circumstances, the Tribunal has decided not to offer the applicant a second, in-person hearing, or take any further steps for him to appear before it.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments at the hearing on 17 February 2022. Having concluded that he was uncooperative at that hearing, and is not genuinely engaged in the review, the Tribunal considers it appropriate to proceed to a decision on the material before it.
The applicant was represented in relation to the review by registered migration agent Mr [B]. [Mr B] prepared the applicant’s response to the NOICC on 30 July 2021, and was nominated as the representative in the application for review. During the review, [Mr B] indicated that he had difficulties contacting the applicant to follow up the Tribunal’s enquiries, although it appears that he and [Mr B] spoke on at least some occasions. At hearing, the applicant denied knowledge of [Mr B], and claimed to be self-represented. On 7 March 2022, [Mr B] advised a Tribunal officer that he no longer wished to represent the applicant, due to the non-payment of fees. The Tribunal officer explained that the applicant would need to advise the Tribunal in writing if [Mr B] was no longer his representative. The Tribunal has continued to communicate with [Mr B] as the applicant’s representative and, as outlined above, also tried to contact the applicant directly to discuss his circumstances and intentions.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b), which states that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa.
If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling a visa applies to the holder. One of the prescribed grounds is found in r.2.43(1)(oa): ‘in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against the law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).
As noted in the NOICC and the delegate’s decision record, the applicant was convicted in New South Wales [in] March 2021 of the following offences: [details deleted].[2] In his response to the NOICC, the applicant accepted that he had been convicted of offences against the law of NSW.
[2] These details are found in the delegate’s decision record.
The Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Given the applicant’s conduct at the hearing, and in the absence of any substantive submissions during this review, the Tribunal has drawn on information contained in the applicant’s response to the NOICC (26 July 2021), and the delegate’s decision record (8 September 2021). Most of the information before it is therefore more than six months old.
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
As noted in the delegate’s decision record, the applicant entered Australia on [date] January 2008 on a student visa, which was cancelled on 16 December 2008 on the basis that he was not enrolled in a registered course.
The applicant remained in Australia unlawfully for almost four years. On 3 September 2012, his wife lodged a protection visa application, which included the applicant as a member of the same family unit who did not have protection claims of his own. The Department refused the application, and the matter is currently before the AAT for merits review.[3] The applicant has held successive Bridging C visas in association with the protection visa application, up until the visa cancellation on 8 September 2021.
[3] The applicant provided with his NOICC response a letter from the AAT dated 10 August 2020, advising him that the Federal Circuit Court had remitted the applications for review for reconsideration.

The limited available information suggests that the applicant’s stated purpose for coming to Australia in 2008 to study was short-lived, or perhaps not genuine. Since 2012, it appears that his wish has been to remain in Australia together with his family while their protection visa application is being processed. It is worth noting that only the wife presented protection claims of her own, and that the protection visa application includes the elder daughter, who is currently [age] years old, but not the [younger] daughter.
A complicating factor is that the applicant is currently subject to an Apprehended Domestic Violence Order (ADVO) issued in December 2020, and in force until March 2023. It identifies the applicant’s wife and two daughters as protected persons. The applicant stated his intention is to remain in Australia to continue to support his family and eventually reunite with them. The Tribunal accepts the applicant’s wish to remain in Australia while his family is here, but it has limited information about the applicant’s current relationship or contact with his wife and children.
In all, the Tribunal gives limited weight to this factor against cancelling the visa.
The extent of compliance with visa conditions
There were no conditions on the Bridging C visa, so there is a not a relevant factor in considering the visa cancellation.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant’s NOICC response of July 2021 identifies some hardship that may arise from the visa cancellation, but the information is limited in scope and largely unsubstantiated, and the documents are not current.
Personal ties: The applicant has lived in Australia since January 2008. While his evidence about family and business links (see below) point towards some engagement with the community, Ms [A]’s letter of 19 May 2021 states that he lives alone, has no other family in Australia ‘and has a very limited social support network here’. The Tribunal accepts that he will have formed some attachments here, although it is unable to reach conclusions about the nature or extent of these.
Family ties: The applicant’s wife and two children are in Australia and, as noted in the delegate’s decision record, are holders of temporary bridging visas. The applicant provided details of his daughters, one of whom is [age] years old[4], and the other is [age] years old.
[4] The applicant provided in the NOICC response a copy of the elder daughter’s school enrolment.
In his response to the NOICC, dated 26 July 2021, the applicant addressed the hardships that the visa cancellation would cause to him and his family. A key consideration is that, following the assaults of his wife on [date] December 2020, he was subject to an Apprehended Domestic Violence Order (ADVO) in relation to the wife and children. The applicant attached to the NOICC response some documents: (a) a copy of an application made by his wife on [date] December 2020, seeking a variation of the ADVO; and (b) a ‘final order’ that appears to be an amended version of the original ADVO.
The wife’s application to the NSW Local Court of [date] December 2020 and the NOICC response of 26 July 2021 contain some information about the applicant’s relationship with his children, and his wife’s reliance on his support. The key points are:
§ The applicant’s wife wrote that the children are close to the applicant, and miss him. He used to help with their care, including cooking, driving them to school and cleaning. She wants him to be involved in the children’s lives and upbringing. She noted the difficulty she has providing childcare and related support on her own, as she works casually on weekdays (7am to 3pm) and has to attend twice-yearly medical checks that can take an entire day.
The applicant provided several medical documents relating to his wife.[5] These indicate that she has several ongoing health issues that require monitoring, but at face value do not suggest that she has any impaired functioning.
§ The applicant also wrote that he was close to his daughters, and had fun with them. Their separation from him under the ADVO caused them to be upset.
§ The ‘final’ ADVO stipulates (among other things) that the applicant must not approach his wife or either daughter, with limited exceptions (such as through a lawyer, or as agreed in writing between the parents).
The Tribunal notes that the NOICC response includes two medical documents relating to his wife, from February 2021 and April 2021, suggesting that they have had some ongoing direct or indirect contact with each other after the ADVO. The Tribunal is unable to speculate as to whether or how this might reflect on the family ties more generally.
§ In his response to the NOICC, the applicant referred to the court agreeing to him seeing the children once a week (presumably a reference to the parents having agreed in writing to such access, pursuant to the final ADVO).
§ The applicant’s wife wrote in December 2020 that the applicant is her and the children’s ‘main support’, without details. The applicant also referred to the family’s financial hardship, alluding to the ADVO as well as COVID-19 restrictions. The Tribunal infers from this that the visa cancellation, and any consequent separation from his family, may cause some financial hardship.
[5] A letter from [a named doctor], dated 12 December 2016, [with details of a medical condition]; a letter from [a named doctor] dated 17 August 2019, diagnosing [a medical condition]; letter from [named] endocrinologist, dated 3 August 2020, reporting on [the wife]’s ongoing treatment for [medical condition]; pathology results dated 23 February 2021 showing that [the wife] had [a medical condition]; and a letter from [a named doctor], dated 26 April 2021, diagnosing [the wife] as having [medical conditions].
The Tribunal has no more recent information about the applicant’s relationship with his wife and children; the current status of the ADVO; or its implementation. The Tribunal considers it possible that the visa cancellation would make it more difficult for the applicant to sustain or repair his relationship with his family, and for him to provide financial support. However, it has insufficient evidence about the current family situation to assess the degree of hardship that the visa cancellation might cause him; or to assess its impact on his family.
Health issues: In the NOICC response, the applicant stated that since 2016, he has suffered from [Medical condition 1]. He referred to having undergone several [surgeries], and having his next specialist appointment on 11 November 2021. He submitted a letter from a [specialist] dated 21 January 2021 confirming that he had [Medical condition 1] which had been treated with medication, and that he had recently agreed to undergo [a related medical study]. The Tribunal has found no record of the applicant having undergone surgery. The Tribunal has no more recent advice, including on whether the applicant attended the appointment on 11 November 2021 or what if any further treatment he has received.
As noted above, the applicant briefly stated at hearing that he has no health issues, whereas his representative mentioned his understanding that the applicant has mental health issues. The limited medical evidence indicates that he suffered stress around the time of his criminal conviction and the ADVO, and that he takes medication for [Medical condition 1]. There is insufficient evidence relating to any other medical issues, including mental health matters. The Tribunal accepts that the visa cancellation would cause the applicant some added stress, but is unable to be satisfied that it would cause any other medical hardship.
Business/financial ties: The applicant wrote in July 2021 that he established a business in 2015, [Company 1]. The business had a turnover of almost $500,000 in 2016 and almost $1,000,000 in 2017. He stated that the business gave ‘support to many contractors and employees’, without further details. He submitted a financial report for the year ended 30 June 2016 shows a net profit of ca $34,400; a copy of the current ABN registration; and an Australian Tax Office activity statement for [Company 1] showing an overdue balance of just under $5,000, with a handwritten annotation ‘paid 25/11/2020’. These documents give only a limited insight into the business operations, at several points in the past.
The applicant also wrote in July 2021 that the business declined after the outbreak of the COVID-19 pandemic, but he is confident it can recover, on the basis of his expertise and business contacts in the construction sector. Again, there is no more recent information about the business (eg. if it continues to operate and whether it employs anyone); any other work that the applicant undertakes; and/or his financial situation.
While the Tribunal accepts that the applicant has been in Australia since 2008; that the visa cancellation may complicate or delay any reunion with his family; that it may cause him and his family financial hardship (if he is in detention, or remains in the community unlawfully and without permission to work); and that it may add to his stress levels, it is concerned by the lack of current, reliable evidence about his circumstances. This makes it difficult to form any view about the hardship that visa cancellation may cause.
The Tribunal places a little weight on this factor against cancelling the visa.
The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
As noted above, the applicant’s convictions for criminal offences in March 2021 formed the grounds for cancellation.
In the response to the NOICC, the applicant addressed the events that led to the offending in December 2020, and commented on the nature and severity of the offences.
§ The offending: The applicant claimed that he had been involved in a dispute over a car on [date] December 2020, which affected his mood and eventually led to him hurting his wife. Later, he drove with his children to a fast food outlet to purchase takeaway food. The police were waiting for him on his return, after his wife had called them. The applicant panicked and, partly due to his poor English, failed to comply with police orders. At the police station, he was scared and emotionally ‘out of control’. Eventually, the police called the ambulance for him to receive emergency treatment, for his [medical] condition.
The applicant provided a copy of [a doctor’s] report of 4 January 2021. This indicates that the applicant’s ‘hurting’ of his wife consisted of two assaults, one [in] December [2020], and a second one after her return from work on the afternoon, when (according to [this named doctor) he ‘[details deleted][…]’.
§ The circumstances that led to the offending: The applicant claimed that the impact of the pandemic, and financial pressures on his business, had put him under enormous strain prior to the offending. He noted the psychiatrist report of 4 January 2021, which mentions a GP referral letter of 3 December 2020 (the day before the first offence). He also noted the psychologist report of 19 May 2021, which refers to prior consultations for anxiety, without mention of any timeframe
The applicant contended in his response to the NOICC that, in the circumstances, ‘the offence [sic] is not one that is “abhorrent” to the Australian community’. He also stated that he had never previously lost self-control or committed such acts.
The Tribunal is not satisfied on the limited available material that the offending occurred due to circumstances that were beyond the applicant’s control. In relation to the significance of the offending, the Tribunal places greater weight on [the doctor]’s summary, than it does on the applicant’s brief reference to ‘hurting’ his wife. It considers the offending to be a significant breach of community standards, and does not accept the applicant’s suggestion that, in the circumstances, it was ‘[not] abhorrent’ to the Australian community.
The applicant wrote in the NOICC response about his future conduct, which the Tribunal addresses below (‘other relevant matters’).
The Tribunal places great weight on this factor in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the department
The delegate’s decision record states that the applicant failed to comply with condition 8202 of his student visa, namely the requirement that he maintain enrolment in a registered course. The visa, issued on 5 February 2008, was cancelled under s.116(1)(b) on 16 December 2008. The delegate noted that the applicant remained in Australia unlawfully for four years after the student visa cancellation. This is a significant period, although the Tribunal also takes into account that it occurred some ago.
The applicant has been unlawful following the cancellation of his Bridging C visa on 8 September 2021. As an unlawful non-citizen, he is liable to be detained under s.189. The limited available material – including his failure to provide further information to the Tribunal, and his presentation at the Tribunal (in person on 15 February 2022 and by telephone on 17 February 2022) – suggests that he has not engaged with the Department, but is living in the community undetected and working without permission. However, the Tribunal was unable to obtain insights from the applicant about this at hearing or during the review, and therefore draws no conclusions from these circumstances.
The Tribunal places some small weight on this factor in favour of cancelling the visa.
Whether there would be consequential cancellations under s.140
There are no consequential cancellations under s.140.
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
The visa cancellation has the legal consequence that the applicant, as an unlawful non-citizen, would be liable to detention under s.189, and his potential removal.
However, he has made a protection visa application that has not yet been finally determined. He attached to the NOICC response a copy of a letter from the AAT dated 10 August 2020, advising that the Federal Circuit Court had remitted for reconsideration the applications for review of the decision to refuse to grant him (and his wife and elder daughter) protection visas. The applicant would not be subject to remove while his protection visa application is ongoing (at the merits or judicial review level).
The applicant is liable to detention under s.189. His presence in the community as an unlawful non-citizen suggests that he is evading Department officers, but the Tribunal has been unable to confirm with him whether he has attempted to engage with officers. If detained, the applicant could apply for a Bridging E visa, on the basis of having made an application for a protection visa (substantive visa of a kind that can be granted if he is in Australia) that has not been finally determined. The Tribunal is unable to speculate on the prospects of success of any such bridging visa application, although it notes that the applicant’s migration history and criminal convictions may be relevant factors in assessing his eligibility for the visa. The applicant would be able to make successive applications for Bridging E visas, and to request Ministerial intervention for his release from detention. If the applicant were to remain in immigration detention, the AAT would give priority to the processing of the review application. In sum, the available evidence indicates that the applicant would have avenues to seek his release from immigration detention, at least until such time as the protection visa application is finally determined.
The visa cancellation means that the applicant will be subject to a statutory bar that will permit him to make a valid application for only certain visas. He will also be also be affected by the risk factor identified in Public Interest Criterion 4013(2) as a person whose visa was cancelled under s.116, on the basis of a ground set out in r.2.43(1)(oa). This means that he will be subject to an exclusion period, and cannot be granted a visa within three years of the visa cancellation (i.e. until September 2024).
The Tribunal gives this factor, in particular the possibility that the applicant may be detained for a limited period while the protection visa application is being processed, some small weight against 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
The applicant was included in the protection visa application of his wife, [name deleted]. As noted above, the visa cancellation would not result in his removal from Australia while the protection visa application is ongoing. Relevantly, the applicant did not make any protection claims of his own, and the available material does not suggest he has any associated fears. In these circumstances, the Tribunal is not satisfied that the visa cancellation would result in any breach of Australia’s non-refoulement obligations.
Article 3(1) of the of the United Nations Convention on the Rights of the Child (CROC) states: ‘In all actions concerning children […] the best interests of the child shall be a primary consideration’. In identifying the best interest of the child, the Tribunal must determine what decision would be in the child’s best interest. Of particular relevance in this case, the preamble to CROC recognises that the ‘child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’. Article 9(1) states: ‘State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities […] determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child’.
The Tribunal notes the following:
§ The applicant and his wife wrote about his relationship with the children, their emotional bonds and the applicant’s financial and practical support to them. There is minimal information about the current family arrangements (i.e. after the applicant’s NOICC response in July 2021, and the visa cancellation in September 2021).
§ The available information indicates that the ADVO set in December 2020 is in place until March 2023, and (according to the applicant’s statement in July 2021) allows him to see the children once a week. In this context, the visa cancellation would not result in any separation of the applicant and his children; at most, it may require some variation to the practical arrangements for such contact.
§ The applicant also claimed that he provides financial support to his children, and his wife’s application to the court inferred this. Again, there is no current information about his whereabouts, work or business activities, or finances; or what if any support he is now providing his children. However, the Tribunal accepts as plausible that he may be assisting the children (and his wife) financially.
The Tribunal considers it likely that the best interest of the children would be for the visa not to be cancelled, but cannot reach a firm conclusion as to this on the limited available evidence. It takes into account: (a) there may be some advantage to the children in having weekly contact with the applicant in a setting other than an immigration detention facility; and (b) the visa cancellation would deprive him of the opportunity to work with permission, and hence provide financial support to the children.

The Tribunal finds that it likely that the best interests of the children require the visa not to be cancelled, and on the limited available evidence, that the damage that would flow to them from cancellation would be slight or moderate.
While the Tribunal finds that the best interests of the children require the visa not to be cancelled, it considers on the available evidence – including the ongoing ADVO and the vague, unsubstantiated statements about financial reliance - that the damage that would flow to them from cancellation would be slight or moderate.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The bridging visa is not a permanent visa.
Any other relevant matters
In the NOICC response, the applicant wrote that he is remorseful at the negative impacts on his wife and children. He now has insight into his conduct and loss of self-control, and is committed to ‘rehabilitation’, such as seeking mental health support, and complying with correction orders and community service work. Details of the applicant’s follow-up to these statements are lacking. The Tribunal notes that compliance with Australian law and community standards are minimum expectations. It places neutral weight on these undertakings.
Summary
The Tribunal has considered the totality of the applicant’s circumstances. It finds that there are grounds for cancelling the visa because the applicant has been convicted while on the Bridging C visa.
Taking the best interests of the children as a primary consideration, the Tribunal accepts that it is likely that their best interests are served by the visa not being cancelled. However, the applicant’s assumption that the visa cancellation would result in his separation from the children is unfounded, as he would not be subject to removal while the protection visa application is ongoing, and his contacts with them are regulated under an ADVO in place until March 2023. His immigration detention would therefore not have a significant impact on their ability to meet in person. The Tribunal accepts that the applicant’s ability to provide financial support for his children may be impaired by the visa cancellation, but concludes on the limited available evidence that the impact on them would at most be modest. The Tribunal has formed the view that the cancellation would not breach Australia’s international obligations.
The Tribunal accepts that the applicant will be liable to be detained, with a consequent disruption to any work or business activities that he may be engaged in unlawfully now; and that he would be subject to mandatory legal consequences following the cancellation, although these may be of limited impact, depending on the outcome and timing of his protection visa application.
The Tribunal has decided to place greater weight on the circumstances in which the cancellation arose, as the offending involves family violence for which he has provided only a limited explanation; his poor migration history; and his lack of engagement in this review. .
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.
James Silva
Member

[2022] AATA 1551

14 March 2022

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Immigration

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