2305515 (Migration) - [2023] AATA 1333

2305515 (Migration) [2023] AATA 1333 (3 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  2305259 and
2305515
MEMBER:Simone Burford
DATE:3 May 2023
PLACE OF DECISION:  Perth
DECISION:
With respect to case number 2305259     The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
With respect to case number 2305515   The Tribunal sets aside the decision under review and substitutes a decision that the decision by the delegate on 14 April 2023 to cancel the applicant’s Subclass 050 (Bridging (General)) visa was of no legal effect because of the operative effect of the delegate’s decision on 11 April 2023 to cancel the same visa.

Statement made on 03 May 2023 at 4:45pm

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abiding by visa conditions – applicant convicted of several offences – second cancellation decision – timing of charges or conviction – financial hardship – funding a legal defence – best interests of a foreign resident child – working while on a Visitor visa – decision under review set aside
LEGISLATION
Migration Act 1958, ss 30, 48, 116, 127, 359, 360, 365, 367, 499
Migration Regulations 1994, rr 2.43, 4.21, 4.27
CASES
ACH15 v MIBP [2015] FCCA 1250
Fang v MIMIA [2004] FCA 1387
Fattah v Min Home Affairs [2019] FCAFC 31
Kim v MIAC (2008) 167 FCR 578
Meng v MIAC [2007] FMCA 173
MHA v CSH18 [2019] FCAFC 80
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 41 FLR 338
Swan v Minister for Home Affairs [2019] FCCA 702
Uelese v Minister for Immigration & Border Protection [2015] HCA 15
Zubair v MIMIA (2004) 134 FCR 344
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
APPLICATIONS

There are two applications for review before the Tribunal - a decision dated 11 April 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act) and a decision dated 14 April 2023 made by a delegate of the Minister for Home Affairs to cancel the same visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate on both decisions cancelled the visa under s 116(1)(g) because he had been charged with offences in Western Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
BACKGROUND
The applicant is a citizen of Fiji. He first came to Australia in 2003 and has visited multiple times as a tourist or visitor. His latest arrival in Australia was in March 2020 on a Visitor visa. He held Visitor visas (or associated Bridging visas) until he lodged a Protection visa application on 30 July 2021. He was granted a Bridging visa A (subclass 010) visa on 24 August 2021 pending the outcome of his protection visa application.
The applicant’s Bridging visa A was cancelled on 10 March 2023 pursuant to s 116(1)(g) of the Act because the delegate was satisfied that the applicant had been convicted of criminal offences under Western Australian law [in] November 2022, namely one count of Common assault and one count of Unlawful and indecent assault. The applicant provided a copy of that cancellation decision to the Tribunal with his application for review (the Bridging visa A cancellation decision). The applicant lodged an application for review of that decision with the Tribunal on 12 March 2023.[1]
[1] Tribunal ref: 2303513
On 16 March 2023 the applicant was granted a Subclass 050 (Bridging (General)) visa. The applicant provided an unsigned copy of the decision to grant that visa to the Tribunal. The applicant told the Tribunal after he was granted that visa, he decided not to proceed with his application for review of the Bridging visa A cancellation decision. Consistent with this evidence, Tribunal records indicate that on 19 April 2023 the Tribunal (differently constituted) determined it did not have jurisdiction in the matter as the associated fee for lodgement had not been paid.
On 11 April 2023 the applicant’s Subclass 050 (Bridging (General)) visa was cancelled (the first Bridging visa E cancellation decision). The applicant was notified of the decision by hand on the same day. The delegate cancelled the visa under s 116(1)(g) because the applicant had been charged with offences in Western Australia on [a day in] July 2021, namely two counts of Common assault and one count of Indecent assault. The applicant sought review of that decision on 13 April 2023.[2] The applicant provided a copy of the notice of intention to cancel his visa and the decision to cancel the visa to the Tribunal.
[2] Tribunal ref: 2305259
On 14 April 2023 a delegate of the Minister issued a second notice of intention to cancel the applicant’s Subclass 050 (Bridging (General)) visa (issued on 16 March 2023). A second decision to cancel that visa was made on the same day (the second Bridging visa E cancellation decision). That decision was notified to the applicant by hand on 18 April 2023. The applicant sought review of that decision with the Tribunal on 20 April 2023.[3] The applicant provided a copy of the notice of intention to cancel his visa and the decision to cancel the visa to the Tribunal.
[3] Tribunal ref: 2305515
Both the first and second Bridging visa E cancellation decisions are before the Tribunal as currently constituted.
For the following reasons, the Tribunal has concluded that the first Bridging visa E cancellation decision should be affirmed. The Tribunal has concluded that the second Bridging visa E cancellation decision should be set aside and substituted with a decision that the second Bridging visa E cancellation decision was of no legal effect because of the operative effect of the first Bridging visa E cancellation decision.
PROCEEDINGS BEFORE THE TRIBUNAL
Procedural issues
The applicant appeared before the Tribunal on 20 April 2023 and 1 May 2023 to give evidence and present arguments. The applicant appeared in person at the Tribunal’s Perth Registry. He did not call any witnesses and was not represented in relation to the review.
As the applicant is in detention, this matter is a time limited review, with the Tribunal required to make a decision on the review, and notify the applicant of the decision, within the prescribed period (s.367) unless the applicant agrees to extend the time. The prescribed period is seven working days after the day on which the application is received (r.4.27). Two working days are required to give notice of a hearing (s.360A and r.4.21).
A hearing of this matter was initially scheduled on 20 April 2023. The Tribunal issued an invitation to the applicant on 17 April 2023 to appear on 20 April 2023. The invitation was sent via email to [the named] Immigration Detention Centre with a request for immediate hand delivery to the applicant. Tribunal records indicate that detention centre staff provided email confirmation on 19 April 2023 that the invitation was delivered to the applicant as requested on 17 April 2023.
On 20 April 2023 the applicant appeared before the Tribunal at the time specified in the invitation. At the commencement of the proceedings the applicant handed the Tribunal several documents including the first and second Bridging visa E cancellation decision records and notices of intention to cancel his Bridging visa E issued on the 11 April and 14 April 2023 respectively. The applicant also complained to the Tribunal that he had only received the hearing invitation the day prior, 19 April 2023.
While the applicant’s account of receipt of the hearing invitation was not consistent with the confirmation from the detention centre the Tribunal determined it was prudent given the time limited nature of the review and the applicant’s circumstances to relist the matter for hearing, allowing the applicant to receive two days’ notice of the hearing, The Tribunal also considered that the information provided by the applicant indicated a further cancellation decision had purportedly been made with respect to the same visa and that relisting the hearing for a later date would enable the applicant to meet the statutory timeframes for seeking a review of that decision should he wish to do so. The applicant lodged the review application with respect to that decision that day, prior to being returned to the detention centre. In light of the delay to the hearing the Tribunal sought the applicant’s agreement to extend the date for finalisation of the application to 1 May 2023. The applicant provided written agreement to the revised date.
Accordingly, on 21 April 2023 the applicant was invited to attend a hearing before the Tribunal on 27 April 2023, the earliest date available having regard to the Tribunal’s other listed commitments and the intervening Anzac Day public holiday. Tribunal records indicate that delivery of that invitation was confirmed for 21 April 2023 by the detention centre. A courtesy copy of the invitation was sent to the applicant at his personal email address in accordance with his request to the Tribunal on 20 April 2023.
In that invitation the Tribunal indicated that it proposed to conduct the hearing as a combined hearing on both the applications for review of the first and second Bridging visa E cancellation decisions. In response to the issuing of the invitation to a combined hearing on the second application on 24 April 2023 the applicant emailed the Tribunal consenting to the applications proceeding at a combined hearing on 27 April 2023.
On 24 April 2023 the Tribunal issued an invitation to the applicant under s359A to comment or respond to information received on summons from [Court 1] and the Western Australian Police (WAPOL) relating to the applicant’s criminal convictions and outstanding charges. That information and the applicant’s comments or responses to it are considered further below. The applicant was invited to respond to the information at the hearing scheduled for 27 April 2023.
In response to that invitation, the applicant requested an adjournment of the proposed hearing to allow him a further opportunity to consider the information and his response.
Given the applicant was unrepresented and in immigration detention the Tribunal agreed to postpone the hearing until 1 May 2023. The applicant’s agreement was sort to a revised finalisation date of 3 May 2023 on both matters. The applicant agreed to the revised finalisation date by email on 26 April 2023 and confirmed his agreement in writing at the hearing on 1 May 2023.
The combined hearing
The applicant appeared at a combined hearing before the Tribunal on 1 May 2023 to give evidence and present arguments in person at the Tribunal’s Perth Registry.
Just prior to the commencement of the hearing the applicant requested and was provided with copies of several sections of the Act (ss 30 and 116) and Regulation 2.43 of the Migration Regulations (Cth) 1994.
At the commencement of the hearing the applicant requested the hearing be conducted in private. The Tribunal explained that for matters arising under Part 5 of the Act hearings were held in public put that the Tribunal could direct that certain evidence be given in private where the Tribunal was satisfied it was in the public interest to do so. The Tribunal invited the applicant to explain why he wished to give evidence in private and he explained he had lost trust in officials including Australian Boarder Force and Serco because of the way the criminal charges against him had proceeded.
The Tribunal had regard the reasons raised by the applicant. The Tribunal also had regard to the fac the applicant has a Protection visa application under review and that his claims and evidence with respect to those proceedings would be private. The Tribunal was satisfied it was in the public interest that the applicant’s evidence be taken in private and made a direction to that effect under s 365(4) of the Act. That direction provided for Tribunal staff to remain present during the applicant’s evidence.
Prior to the hearing the applicant submitted the following documents to the Tribunal:
·Decision record regarding cancellation of the applicant’s Bridging visa A (subclass 010) visa;
·Form 1099 - Notice of Intention to Consider Cancellation under section 116 of the Migration Act 1958 dated 11 April 2023, Decision Record and Notification of Decision dated 11 April 2023; and
·Form 1099 - Notice of Intention to Consider Cancellation under section 116 of the Migration Act 1958 dated 14 April 2023, Decision Record dated 14 April 2023 and Notification of Decision dated 18 April 2023.
During the second hearing on 1 May 2023, the applicant provided the following:
·Form 1111 ‘Record and notice of decision: Bridging Visa E – subclass 050’ (unsigned but dated 17 March 2023) recording the grant of the applicant’s Bridging visa E; and
·Form 1212 ‘Notice of conditions and security: Bridging Visa E – subclass 050’ noting the conditions of the applicant’s Bridging visa E.
During the hearing the applicant indicated he wished to provide ‘character references’ in support of his applications for review. The Tribunal provided the applicant with additional time following the hearing to submit additional information, indicating it would take any relevant material into account in making a decision on the applications. On 2 May 2023, the applicant provided the following:
·Newspaper Article ‘An event not to be missed: Committee invites public’ Undated;
·Newspaper Article ‘[Title]’, Undated;
·Untranslated Article, Undated;
·Newspaper Article ‘[Title]’, Fiji times, Undated;
·Newspaper Article Photos ‘Dinner: Youth Parliamentarians’ Photos by Paulini Ratulailai, Undated;
·Newspaper Article ‘Bigger Celebration for Festival of Lights’, Fiji Sun, dated 12 Oct 2014;
·Newspaper Article ‘Bollywood Actors Jet In’, Fiji Sun, dated 7 Jan 2015;
·Newspaper Article ‘NZ support for festival’, Fiji Sun, Undated;
·Photo of group of men, contains text ‘[Title]’, undated;
·Newspaper Article, ‘[Title]’ written by Zanzeer Singh, Undated;
·Newspaper Article ‘[Title]’, Undated;
·Newspaper Article ‘[Title]’ Undated;
·Newspaper Article ‘Senior Citizen’ Undated;
·Online Article ‘Diwali’, dated [in] Aug 2012;
·Online Article, ‘[Title]’, dated 13 September 2013;
·MP4 file that included a screenshot of what appears to be a letter to the editor titled ‘Commendable coverage’ with a motivational audio message, Undated.
The Tribunal has considered this information in the context of the review applications but did not consider that it raised any new issues to those discussed at the hearing.
The Tribunal notes that after the lunch break during the hearing, the applicant indicated he had a headache which had come on suddenly and requested he be provided Panadol. The Tribunal indicated it was unable to issue medications to him and suggested he would need to approach the officials from the detention centre who had accompanied him regarding access to medication. He indicated the SERCO office accompanying him had indicated that he would have to return to the detention centre to obtain Panadol medication and he did not wish to do that.
The Tribunal adjourned the hearing briefly and on return confirmed with the applicant it was unable to offer him medication but that it was prepared to adjourn the hearing to the following day and to continue the hearing by video so that he could have onsite access at the detention centre to any medical assistance he might require. The applicant stated that he did not wish to adjourn the proceedings and wanted to continue on that day. The Tribunal indicated that it could only proceed if it was satisfied the applicant was able to fully participate in the hearing without being impeded by any medical issues. The applicant indicated that he was fine to continue. The Tribunal agreed to proceed with the hearing but encouraged the applicant to tell the Tribunal immediately should he feel unable to continue or should he determine he would prefer to adjourn to the following day and return to the detention centre to access medication. The applicant was also provided with water to ensure he was adequately hydrated.
The Tribunal was mindful of the applicant’s comfort during the remainder of the proceedings and his desire to conclude the hearing on that day. Having regard to the applicant’s engagement with the Tribunal during with proceedings including after the lunch break the Tribunal was satisfied that the applicant was able to fully engage with the proceedings, notwithstanding his complaint of a headache, noting that the applicant did not raise any further difficulties during the conduct of the hearing other than requesting a comfort break which was granted.
As noted above, the applicant was provided with further time following the hearing to submit any information he considered relevant to the Tribunal’s consideration of the decisions to cancel his visa. The applicant submitted further material which has been taken into account.
Certificate issued under s 376 of the Act
The Department file with respect to the Bridging visa A cancellation decision, a copy of which was before the Tribunal, includes a certificate issued under s 376.
Issues relating to the validity of the certificate and relevance of the information covered by the certificate were discussed with the applicant at the hearing.
As outlined for the applicant at the hearing, where a certificate validly issued under s 376 the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary of the Department, disclose the material to the applicant or another person.
The certificate states that disclosure of the information contained in the identified folios would be contrary to the public interest because it would disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would be likely to prejudice the effectiveness of those methods.
A copy of the s.376 certificate was provided to the applicant at the hearing. The Tribunal invited the applicant to make submissions with respect to the validity of the certificate. The Tribunal also noted it’s discretion to release the information covered by the certificates and invited the applicant to make any submissions regarding whether the Tribunal should exercise its discretion to release the material.
The Tribunal noted at the hearing that it had reviewed the information and that it had formed the view that the material covered much of the same material the Tribunal had obtained on summons from [Court 1] and WAPOL, information which had been given to the applicant in the s 359A invitation the applicant’s response to which would be discussed at the hearing. As such the Tribunal did not intend to rely on the information covered by the certificate. For that reason, and having regard to the advice given in the certificate, the Tribunal indicted that subject to any submissions from the applicant, it was proposing not to release the information from that file noting that in any event, the Tribunal noted its obligation to put any information which would be the reason or part of the reason for affirming the decision to the applicant for his comment or response.
Following a brief adjournment, the applicant confirmed he had no submissions to make with respect to the certificate or material covered by it.

As discussed at the hearing, the Tribunal is satisfied that the certificate, which was properly signed and dated, specifies a public interest reason, that the reason specified is a public interest reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding, and that the material, the subject of the certificate, falls within the stated public interest reasons.
Having regard to the nature of the information and the information covered which was relevant to the Tribunal’s review was provided in official records produced under summons from the relevant authorities, the Tribunal formed the view it as not necessary to have regard to the material covered by the certificate in determining the reviews. In this regard the Tribunal preferred the official records produced on summons during the review.
CONSIDERATION
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)(g). 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.
Issues with respect to the two decisions
As noted above, the Department has made two decisions to cancel the applicant’s Bridging visa E, one on 11 April 2023 and one on 14 April 2023. The second decision was made after the applicant sought review of the first decision.
With respect to the first Bridging visa E cancellation decision, it appears there were a number of issues with the decision which may have given rise to the purported second decision.
The first was that it appeared the notification of the first Bridging visa E cancellation decision did not meet the requirements of s 127(2)(b) of the Act, in that it did not expressly state Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata (2021) 284 FCR 62 at [40]–[44]. As this meant the timeframes for seeking review had not commenced it does not effect the validity of the cancellation decision itself.[4] In any event the applicant applied for review within the statutory timeframes.
[4] See s 127(3).
Having regard to the second decision it appears the Department took the view that the decision was affected by jurisdictional error because the delegate had failed to properly consider the legal consequences of the decision. Again, as the Tribunal is reviewing the decision ‘de novo’ such an error would not mean the decision is not reviewable by the Tribunal even if rendered the delegate’s decision ineffective[5].
[5] Fang v MIMIA [2004] FCA 1387 at [31] – [35].
Cancellation decisions under s 116 are reviewable by the Tribunal if the visa holder was in Australia both at the time of the decision and at the time of the review application. [6] Such decisions will be reviewable even where the primary decision is invalid, for example, because the delegate failed to comply with the mandatory procedural requirements set out in the Act;[7] where the visa should not have been granted[8] or where the person who made the purported decision lacked the requisite delegation.[9] Decisions are reviewable where the visa would have already expired at the time of the Tribunal’s decision.[10]
[6] Section 338(4) provides that decisions to cancel bridging visas held by a person who is in immigration detention because of that cancellation are reviewable. Non-citizens with cancellation decisions reviewable under this sub-section would be in Australia when their visas are cancelled, as a visa is generally essential for non-citizens to travel to Australia (s 42) and immigration detention applies to and is authorised for unlawful non-citizens in Australia: see ss 178, 189.
[7] Zubair v MIMIA (2004) 134 FCR 344 at [28]–[32], applying Collector of Customs v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, Secretary DSS v Alvaro (1994) 50 FCR 213, Yilmaz v MIMA (2000) 100 FCR 495 and Thayananthan v MIMA (2001) 113 FCR 297. Note, however, that the powers on review will depend upon the powers that were available to the primary decision-maker: ss 349(1), 415(1).
[8] Meng v MIAC [2007] FMCA 173
[9] In MHA v CSH18 [2019] FCAFC 80, the Full Federal Court held that by s 414(1) of the Act ([pt 7]; s 348(1) [pt 5]), the Tribunal must review a purported decision made by a person who lacked the requisite delegation if a valid application for review is made. It also held that the words ‘powers and discretions that are conferred by this Act on the person who made the decision’ in s 415(1) ([pt 7]; s 349(1) [pt 5]) refer to the person who made the purported decision, or who purportedly made the decision, and to the powers and discretions that person would have had if the instrument of delegation had been legally effective (at [65]).
[10] Kim v MIAC (2008) 167 FCR 578 at [32]–[34].
The Tribunal considers the first Bridging visa E cancellation decision is a reviewable decision.
With respect to the purported second decision the Tribunal notes that decision was made after the applicant had been notified of the first decision and lodged an application for review of that decision with the Tribunal. This raises an issue of the effect of such a decision. The Tribunal is not aware of any authorities which directly consider this point.
However, with respect to the second decision the Tribunal considers that the primary decision-maker, having made the first decision, was functus officio and therefore the second decision was a nullity in law. The Tribunal’s power on review is confined to finding that the second decision was of no legal effect because of the operative first decision[11].
[11] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 41 FLR 338 at 345-346
While the Tribunal considers the second Bridging visa E cancellation decision to be inoperative, the Tribunal considers the purported decision is reviewable.
Charges and offences
As noted above, details of the applicant’s criminal history were including in the delegate’s decision records with respect to the first and second Bridging Visa E cancellation decisions and in the Bridging visa A cancellation decision record. Copies of these records were provided by the applicant to the Tribunal.
According to that information, [in] November 2022 the applicant was convicted in [Court 1] of one count of Common assault and one count of Unlawful and indecent assault for which he received concurrent sentences of [term] intensive supervision orders for each offence. Those convictions formed the basis for the cancellation of the applicants Bridging visa A on 10 March 2023.
[In] July 2021, the applicant was charged by WAPOL with two counts of Common assault and one count of Unlawful and indecent assault.
This information was confirmed by material produced to the Tribunal under summons by [Court 1] and WAPOL. That information included further details of the offences contained in statements of material facts, the sentencing marks with respect to the applicant’s convictions and the terms of the intensive supervision orders to which the applicant was sentenced and the status and progress of outstanding charges.
The information obtained under summons was put to the applicant in writing prior to the hearing for response at the hearing. The applicant was provided with copies of the following relevant documents:
·Intensive Supervision orders dated [in] November 2022;
·Pre-sentence report dated [in] November 2022;
·Sentencing remarks of [named Judge] dated [in] November 2022;
·List of Charges report dated [in] April 2023 ‘History for Court – Criminal only’ dated [in] April 2023 (highlighting on copy provided to Tribunal);
·Statements of Material facts for five offences, two counts of Common assault and three counts of Unlawful and indecent assault.
The Tribunal put the details of this information to the applicant in addition to information indicating that he was scheduled to appear at trial on the remaining two counts of Common assault and one count of Unlawful and indecent assault in [Court 1] [in] October 2023.
The Tribunal explained to the applicant that the information was relevant to the review of the cancellation of his visa because it may lead the Tribunal to be satisfied that the grounds for cancellation under s 116(1)(g) exist. Further, if the Tribunal finds that grounds for cancellation exist, the Tribunal may also consider this information is relevant to determining whether the discretion to cancel your visa should be exercised. Noting that if the Tribunal accepts the information and finds that it weighs in favour of exercising the discretion to refuse your visa, this would be a reason, or part of the reason, for affirming the decision under review.
At the hearing the Tribunal discussed the applicant’s response to the information. The applicant accepted he had been charged with the five offences. He testified that all charges had been laid [in] July 2021. The two for which he had been convicted related to an incident [in] July 2021. He accepted he had received the sentences indicated. He indicated he intended to seek to have those convictions overturned though he was still raising money for that appeal.
The applicant also accepted there were three charges outstanding: two counts of Common assault and one count of Unlawful and indecent assault. While the information before the Tribunal recorded various dates for the prosecution referral of those charges the applicant testified those charges were also laid [in] July 2021 but related to an incident on [a date in] July 2020. The Tribunal accepts the charges were laid [in] July 2021. The applicant confirmed that the alleged victim with respect to this charge was different. He stated he is pleading not guilty and will be contesting the charge. He stated that the matter is not listed for trial but has a next return date [in] October 2023 to be set down for a 2-day hearing.
The applicant maintained he had never been convicted of a criminal offence in any other jurisdiction in Australia, Fiji or in any country he had previously visited. There is no information before the Tribunal to suggest he has been charged or convicted of offences elsewhere.
Does the ground for cancellation exist?
s 116(1)(g) – prescribed ground
As discussed with the applicant at the hearing, 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. This includes the ground set out at s 116(1)(g) of the Act that a prescribed ground for cancelling the visa applies to the visa holder. The prescribed grounds for cancellation are set out in reg 2.43 of the Regulations. In the present case, the ground in reg 2.43(1)(p)(ii) is relevant.
Regulation 2.43(p)(ii) provides a prescribed ground for cancellation in the case of a holder of a Subclass 050 (Bridging (General)) visa where the Minister is satisfied that the holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.
As set out in delegate’s decisions, and discussed with the applicant at the hearing the applicant was charged with two counts of Common assault and one count of Unlawful and indecent assault. These charges are distinct from the charges and convictions which gave rise to the Bridging visa A cancellation decision.
Before the Tribunal, the applicant initially did not concede that a ground to cancel his visa under s 116(1)(g) exists.
In his application for review of the first bridging visa E cancellation decision (which was made on the incorrect Tribunal form but taken to be a valid application) the applicant stated that:
According to my BVE, it clearly states that if I commit a crime, commit a crime or violate the visa condition. They should had considered cancelling.
Also I have stated to them about the hardship and as I have a pending case which I need to attend and given a fair chance to defend my case, as also I need to support myself and work and raise funds to fight my case, as from day one police had been giving me hard time and in immigration centre I was not able to get required time to even lodge proper application.
Also would like to request if the appeal could be heard in court as soon as possible so I could be out of detention centre, your assistance will be highly appreciated, due to network issue, I am not able to upload any document as of now, as per my earlier conversation with the office they said to lodge and send documents later.
When questioned why my visa cancelled they said under section 63, but according to they can’t, but they insisted they can cancel, but when I asked can u show me where it is legislated to have visa cancelled they could not, as they pre made their mind to cancel with out weighing the other side of my situation.
Look forward to your assistance as soon as possible as my cancellation of my visa was unlawful.
At the hearing the applicant submitted that he considered the grounds for cancelling his visa did not exist because he did not hold the via when the charges were laid. He submitted that the act referred to the ‘visa holder’ but that he was not the visa holder when the charges were laid. He stated that the condition of his bridging visa was that he did not commit criminal offences but that he had not committed any offences while he had been on the Bridging visa E. As such he submitted that their power to cancel his visa was not enlivened.
The Tribunal explained to the prescribed ground under section required that the decision maker be satisfied that the person holding the visa which is being considered for cancellation has been charged or convicted of an offence against the law of the Commonwealth, a State or Territory or another country. The Tribunal noted that judicial authority held that it does not matter when the charge occurred; all that matters is whether the visa holder ‘has been charged’ at some time.[12] The Tribunal explained that in such circumstances and where he accepted, he had been charged with offences against the laws of Western Australia, it appeared the grounds for cancellation existed.
[12] see Fattah v Min Home Affairs [2019] FCAFC 31 at [20].
Prior to the lunch break the Tribunal provided the applicant with a copy of the decision of the Full Court of the Federal Court in Fattah v Min Home Affairs [2019] FCAFC 31 directing his attention to the Court’s consideration of the operation of the prescribed ground in reg 2.43(1)(p)(ii) at para [20] where the Full Court stated:
The language of subpara 2.43(1)(p)(ii), read in context, is clear: it does not matter when the charge occurred. All that matters is whether the holder of the visa “has been charged” at some time. This conclusion is consistent with obiter dictum of the Full Court of this Court in Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 at [41]- [42] per Besanko, Flick and McKerracher JJ, and is supported by the distinction between the language “has been” (in subparas (i) and (ii) of reg 2.43(1)(p)) and “is” (in subparas (iii) to (v)).
Following the lunch break, the Tribunal asked if the applicant had an opportunity to consider the decision in Fattah. The applicant confirmed he had read the relevant section and accepted that it was clear that it didn’t matter when the charges were laid. The applicant confirmed before the Tribunal that he accepted that the grounds for the cancellation exist. He accepted that he had been charged with the offences detailed in the delegate’s decision but insisted that he is innocent and will contest those charges.
The applicant has been charged with an offence against the law of the Commonwealth, a State or Territory or another country. Accordingly, the prescribed ground in reg 2.43(1)(p)(ii) 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
Under s.499 of the Act, the Minister may give written directions about the performance of the functions or exercise of powers under the Act. Where written directions are given, they are binding on the Tribunal and the Tribunal is required to comply with it.[13]
[13] Uelese v Minister for Immigration & Border Protection[2015] HCA 15
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act (the Direction).
The Direction includes the following principles which provide a framework within which decision makers should approach the task of deciding whether to cancel a Bridging E visa:
1)Mandatory detention applies to any non-citizen who arrives and/or remains in Australia and who does not hold a visa that is in effect.
2)All non-citizens residing in the community are expected to abide by the law. This is particularly relevant where the Minister for Immigration and Border Protection has used his personal non delegable power to grant a non-citizen in immigration detention a visa in the public interest.
3)The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa. In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.
4)In order to effectively protect the Australian community and to maintain integrity and public confidence in the migration system, the Government has introduced measures that support the education of Bridging E visa holders about community expectations and acceptable behaviour. These measures encourage compliance with reasonable standards of behaviour and support the taking of compliance action, including consideration of visa cancellation, where Bridging E Visa holders do not abide by the law.
5)Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status. Similarly, where Bridging E visa holders are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern, there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing.
6)The person’s individual circumstances, including the seriousness of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.
The Direction further specifies that the grounds for cancellation are r.2.43(1)(p)(i) and (1)(p)(ii) are enlivened when a visa holder is convicted of or charged with any offence, irrespective of the seriousness of the offence. However, the seriousness of the offence may be considered as a secondary consideration in the exercise of the discretion in s 116(1).
The Direction also states that where a Bridging E visa holder has been charged with an offence or offences and the charges are dismissed, cancellation is not appropriate.
The Direction requires the Tribunal take account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
The primary considerations need to be considered and weighed against each other and with the secondary considerations in deciding whether to cancel a visa. [14]
[14] Swan v Minister for Home Affairs [2019] FCCA 702 (Swan) at [77]
The Tribunal has also 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 primary considerations
The Government’s view regarding the prescribed grounds
This primary consideration requires in weighing the Government’s view that the prescribed ground for cancellation in s 116(1)(p) should be applied rigorously, decision makers should have regard to the principle at the Australian Government has a low tolerance for criminal behaviour, of any nature, by non-citizens who are in the community on a temporary basis and who do not hold a substantive visa. This is particularly the case for non-citizens who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention while their immigration status is being resolved.
The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[15] The decision-maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[16]
[15] ACH15 v MIBP [2015] FCCA 1250 at [28]–[31]
[16] ACH15 v MIBP [2015] FCCA 1250 at [33]
In this case, the applicant was in the community on a visitor visa at the time the charges were laid. At the time the Bridging visa E was granted he did not hold a substantive visa. The Directions provide that regard must be had for the Government’s low tolerance for any criminal behaviour in weighing the Government’s view regarding the prescribed grounds for cancellation.
The Tribunal finds that the Government’s view that the prescribed grounds are to be applied rigorously, the low tolerance for criminal behaviour, and the expectation in cl.4.3(5) that Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status result in this primary consideration weighing heavily in favour of cancelling the visa.
Best interests of children
This primary consideration requires the Tribunal to make a determination about whether cancellation is, or is not, in the best interests of any children under 18 who would be affected by the decision. In doing so the Tribunal is directed to have regard to the fact that the cancellation of a Bridging visa E under a prescribed ground in reg 2.43(1)(p) does not necessarily represent final resolution of a person’s immigration status in Australia.
Having regard to the Direction, the Tribunal notes that the applicant’s Bridging visa E is associated with a protection visa application which is the subject of a review by the Tribunal (differently constituted) and which is not yet finalised. As such, cancellation of the Bridging visa E does not represent a final resolution of the applicant’s immigration status in Australia.
The applicant did not identify any children in Australia who would be affected by the decision in his responses to the notices of intention to cancel the visa. In questioning before the Tribunal, the applicant identified that he has a sister in Sydney who has [number] children. However, he testified that he is not in regular contact with her, having last seen her last year. He did not provide any further details regarding his sister’s children. When asked about the impact his visa cancellation would have on his family members, he did not identify that his sister’s children would be affected by the decision.
On the information before the Tribunal, the applicant does not play a parental role in relation to his sister’s children. There is little information before the Tribunal regarding the children or the effect the cancellation of his visa has on these children. The applicant testified that remaining in Australia enables him to financially support his extended family. The also testified that he and his sister are the only family members in Australia. On this basis the Tribunal finds that cancellation is not in the best interests of any of his sister’s children who may be under 18 years of age. However, having regard to the limited contact the applicant has with his sister, the non-parental relationship with the children, and the limited information regarding the impact visa cancellation would have on them, the Tribunal affords only slight weight to the best interests of these children.
There was no information before the Tribunal regarding any other children under the age of 18 in Australia who would be affected by the decision.
The applicant identified that he has one biological child, a [age]-year-old son, who resides in [Country 1] with the applicant’s wife who is the child’s mother. The applicant testified that his son lives with his mother and his grandparents in [Country 1] in a home owned by his brother-in-law. His mother provides him with daily care and has been financially supported by the applicant to do so. The Tribunal notes that while it accepts the applicant’s son’s may be affected by the decision, as he is not in Australia his best interests are not a relevant consideration under this primary consideration. However, the Tribunal is mindful of the need to take account of his best interests, consistent with Australia’s obligations under the United Nations Convention on the Rights of the Child (CROC).
The Tribunal considers the inclusion of the words ‘in Australia’ with respect to this consideration directs that consideration to the interest of children in Australia. However, the Tribunal considers that the best interests of minor children who are outside of Australia is nevertheless a consideration to be weighed in deciding if the discretion to cancel the visa should be exercised. The Tribunal is mindful of art 3(1) of the CROC provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The Tribunal also notes the preamble to the CROC, which provides:
... the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing 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 ...
In this regard the Tribunal notes that while the Direction states that primary considerations should generally be given greater weight than secondary considerations, it does not mandate this to be the case. Accordingly, the Tribunal has considered the best interests of the applicant’s son under other considerations below.
Weighing the primary considerations one against the other, the Tribunal has found the government’s view regarding the prescribed ground for cancellation weigh heavily in favour of cancelling the visa. The best interests of children in Australia weighs slightly against cancelling the visa. Overall, the primary considerations weigh heavily in favour of cancelling the visa.
The secondary considerations
Impact of a decision to cancel on the family unit
As noted above, the applicant has a wife and young son who reside in [Country 1]. His wife is a [Country 1] citizen. They met in 2015 in [Country 1] and married in 2016 in Fiji with a second celebration in [Country 1] in 2017. His wife and son live with his wife’s parents in a home owned by his brother-in-law in [Country 1]. He is financially supporting his wife who is not in paid work and is responsible for the daily care of his son.
The applicant has one sister in Australia who lives with her family in Sydney. The rest of his family are in Fiji including his parents and siblings.
No evidence was offered from the applicant’s wife or other family members.
The applicant submitted that a decision to cancel his visa will affect his wife and son who he would like to bring to Australia to join him. He stated that he had not seen his wife and son since January 2020 when they left Australia where they had been staying with him on a tourist visa. They returned to [Country 1] and due to the subsequent impact of COVID had been unable to return.

100. While the applicant accepted his wife may be able to travel to Australia with their son on her own visa, he submitted he needed to be in the community to work to support them to come to Australia once the charges were resolved and he had appealed his conviction. He did not want her to travel here until the charges and convictions were resolved because he considered his criminal charges were embarrassing to his family.
101. He testified that he believed that if the visa was cancelled and he could not financially support his wife she would seek to divorce him because her family was conservative and believed it was his responsibility to support his wife and child financially. If he was unable to work, he would not be able to support her and he submitted that no one else in the family in [Country 1] would support her and her son. The Tribunal put to him that she was living with her parents in a home owned by her brother which might suggest the family would support her. He said she was currently living off savings and they expected her to contribute to household expenses. She and his son would be significantly impacted if he was unable to work.
102. The applicant also submitted that cancellation of the visa would impact his parents and extended family in Fiji whom he had been supporting financially when he could. He said his father worked as [an occupation 1] and his mother stayed at home in Fiji. He stated that without being in the community on a visa he would be unable to work and this would cause significant financial hardship to his parents who were sick and elderly and only had limited social security support in Fiji. This would also impact his [siblings] and their families in Fiji as he had provided financial assistance to his siblings from time to time, including with school expenses for his nieces and nephews.
103. The Tribunal accepts that a decision to cancel the applicant’s visa will have a significant financial impact on the applicant’s wife and son and that this may contribute to marital stress. It may also cause a delay in the applicant’s wife and child travelling to Australia. This may lead to the applicant’s wife to seek a divorce. However, the Tribunal considers that there would be other factors contributing to such a decision, including extended separation and the applicant’s criminal charges and convictions. Those factors do not, in the Tribunal’s view arise as a result of any decision to cancel the visa. In any event, as there is no information before the Tribunal as to the applicant’s wife’s views the submission that she may seek to divorce the applicant is largely speculative.
104. The Tribunal also accepts the cancellation of the applicant’s visa would cause stress and financial hardship for his parents, though the evidence was that they have some social welfare support in Fiji and there are other siblings in that country who can support them albeit it their capacity to do so financially may be limited.
105. Having regard to the applicant’s circumstances and the information before the Tribunal, the Tribunal places moderate weight on this consideration against cancellation of the visa.
The degree of hardship that may be experience if the visa is cancelled
106. This consideration requires the Tribunal to consider the degree of hardship which may be experienced by the visa holder if the visa is cancelled.
107. The Bridging E visa the applicant holds is associated with his protection visa application which is on review before the Tribunal. If the visa is not cancelled, he would be able to remain in the community until that review is determined. This included being able to work in the community.
108. However, if his visa remains cancelled, he will no longer be able to make a valid application for a further Bridging E Visa, as Schedule 1 item 1305(3)(g) requires that the applicant has not previously held a visa that has been cancelled on a ground in reg 2.43(1)(p) or (q). He would not hold a visa and would be liable to remain in immigration detention.
109. The applicant submitted that if the visa remains cancelled, he would be unable to work and support his family. He would also be unable to save money to fund his appeal against his convictions and to fight his criminal charges.
110. There was no evidence before the Tribunal that the applicant suffered from any medical conditions which would be impacted or exacerbated by being in immigration detention.
111. As noted above, in his application for review the applicant stated that
As I have a pending case which I need to attend and given a fair chance to defend my case, as also I need to support myself and work and raise funds to fight my case, as from day one police had been giving me hard time and in immigration centre I was not able to get required time to even lodge proper application.

112. The Tribunal accepts that the applicant will suffer hardship is his visa is cancelled, including losing the ability to earn an income. The Tribunal also accepts that the applicant will face additional challenges in appealing his conviction and preparing his defence on outstanding charges if he remains in detention. However, the Tribunal does not regard such challenges as insurmountable given the applicant has access to external communications and was afforded Legal Aid representation with respect to his criminal charges.
113. However, in weighing this consideration the Tribunal has had regard to the principle in the Direction that Bridging visa E holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging visa E while they await the resolution of their immigration status or where they are charged with committing a criminal offence there is an expectation that their Bridging visa ought to be cancelled while criminal justice processes or investigations are ongoing. This principle explicitly contemplates the hardship which the applicant submits he will suffer. Accordingly the Tribunal affords less weight to this consideration in the applicant’s circumstances.
114. Having regard to all the circumstances and the principles in the Direction, the Tribunal considers this factor weighs slightly against cancelling the visa.
The circumstances in which the ground for cancellation arose
115. The Direction requires the Tribunal to consider the circumstances in which the ground for cancellation arose, such as whether there are mitigating factors that may be relevant, as well as the seriousness of the offence.
116. The applicant has been charged with two counts of Common assault and one count of Unlawful and indecent assault. As these were pending charges the Tribunal did not question the applicant in detail regarding the circumstances of the offences.
117. The applicant confirmed they relate to a different complainant than the victim of the offences for which he was convicted in November 2022. The statements of material facts indicated that the charges arose from an alleged incident where the applicant was drinking with a female who was undertaking a job trial at the [business 1] where the applicant worked. The applicant allegedly kissed and touched the complainant without her consent, slapped her on the face twice and took her phone from her for a period.
118. The applicant denies the charges. He claimed that the police did not charge him for these offences until the complaint was made by another woman in 2021. He claimed that the police are trying to force him to leave Australia.
119. The material produced on summons also includes statements of material facts and sentencing remarks with respect to the offences for which the applicant was convicted. The nature of those charges was similar though they involved a different victim who had attended the [business 1] where the applicant was working. The victim had been drinking and went with the applicant to his room at the hostel where he was staying. The applicant touched the victim without her consent and when she suffered a panic attack, slapped her on the face.
120. The sentencing judge noted by way of mitigation in a general sense that at the time the applicant was facing some personal difficulty including being separated by distance from his wife. The sentencing judge noted that ‘any assault of a sexual category’ is considered serious and that the slap to the victim’s face aggravated the indecent assault. However, the sentencing judge took into account that it was a ‘small episode’ but that the victim was vulnerable including because she was intoxicated. The sentencing judge considered that the applicant was ‘not at the point’ where imprisonment would be an appropriate penalty. In the Tribunal’s view this reflects an assessment that the offending was at the lower end of the spectrum for such offending.
121. The comments of the sentencing judge with respect to the offences for which the applicant has been convicted reflect the seriousness with which the community regards assaults of a sexual nature. The Tribunal considers the charges to be serious though at the lower end of the spectrum for offences of that nature.
122. The Tribunal also has regard to the fact that while the charges may be regarded at being at the lower end of the spectrum of offences of this type, they are a second instance of alleged offending (albeit preceding in time) to the type of offences for which the applicant was convicted in November 2022. The Tribunal considers that this adds to the seriousness of the charges in the assessment of the overall circumstances in which gave rise to the cancellation.
123. While the applicant complained about a range of issues with the conduct of the charging and prosecution of the offences, his convictions and the quality of his legal representation, the Tribunal does not consider it is appropriate to go behind the fact of his conviction for the other set of offences, or to disregard the findings of the [Judge] with respect to the applicant’s guilt. Further, while the Tribunal accepts the charges are not proven and the applicant is entitled to a presumption of innocence it is not the Tribunal’s role to scrutinise the conduct of the police of prosecution in laying charges and conducting proceedings in the Western Australian Courts. The Tribunal does not consider these issues weigh in the applicant’s favour.

124. Whatever the outcome of the charges, the applicant’s convictions and the events leading to the outstanding charges were a result of the applicant’s own actions. The applicant denies events leading to the charges occurred, including any non-consensual touching of the victim, and challenged the motivation of the police and the complainant in bringing the charges.
125. Having regard to all the circumstances, the Tribunal finds this consideration weighs moderately in favour of cancelling the visa.
The possible consequences of the cancellation
126. This consideration requires the Tribunal to have regard to the consequences of cancellation, including but not limited to whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulment obligations, noting the decision to cancel a Bridging E visa does not necessarily represent a final resolution of the applicant’s immigration status.
127. The consequence of the cancellation is that the applicant will be unable to apply for a further bridging visa and he will remain in immigration detention until his protection visa application is finally determined and he has exhausted his appeal rights or has sought the intervention of the Minister.
128. The applicant has made claims that he faces a risk of harm on return to Fiji in the form of politically motivated charges against him being laid by the former government of Fiji arising from his personal profile in Fiji as [two specified roles], and perceived political opponent of the firer government. The applicant stated that he is not at risk from the current government but that the government may change. He also stated that he wished to clear his criminal record in Australia so that he can return to seek [specified employment] in Fiji, either if the government does not change or ‘once he has an Australian passport’.
129. The Tribunal finds that cancellation of the visa will not result in the applicant’s removal. Removal will only be triggered if the applicant’s protection claims are finally determined with no visa being granted. As such the Tribunal does not place weight on the prospect of removal arising from the cancellation of this visa in the applicant’s circumstances.
130. Further, the Tribunal considers that it is not necessary to make findings as whether a non-refoulement obligation arises with respect to the applicant’s return to Fiji both because the applicant has a protection visa application on foot in the context of which his claims will be considered against the criteria in the Act and because the decision to cancel this visa would not result in the applicant being returned to Fiji prior to his protection claims being finally assessed.
131. In this regard the Tribunal notes that the applicant raised the prospect of departing for [Country 1] voluntarily, however he indicated he cannot leave due to the charges. In this regard the Tribunal notes that he is due to return to court for the charges in October 2023. He also noted that he would be subject to a five-year restriction on his rights to work in [Country 1] as the spouse of a [Country 1] citizen. He did not offer any evidence to support this claim.
132. In any event the applicant stated that he does not wish to leave until he clears himself of the charges and has his conviction overturned. As the applicant is yet to appeal that conviction, the prospect, and timeframes for this remain speculative. The Tribunal notes in this regard that, as detailed in the Bridging visa A cancellation decision, the applicant did not appeal the decision of [Court 1] within the period for lodging an appeal and would require an extension of time to be granted for an appeal to be lodged. At this stage, this is speculative given that he has not sought or been granted an extension of time in which to lodge his appeal.
133. While the Tribunal accepts the applicant would remain in detention and may face additional challenging in defending his charges or appealing his convictions as a result, the Tribunal notes that the possibility that a person will remain in immigration detention pending a resolution of his or her visa status is clearly contemplated by cl.4.3(5).
134. The Tribunal has also considered the prospect of indefinite detention. While the appeals process with respect to his visa may be a lengthy one which could see the applicant remain in detention for a significant period should he be refused a protection visa on review and chose to challenge that decision, the Tribunal finds that it is not this decision that could lead to indefinite detention.
135. The Tribunal notes that as the applicant’s Bridging visa A was cancelled, he is already the subject of a s 48 bar which limits the range of further visas he may apply for from within Australia. Those restrictions do not apply to Partner visa applications. Further, Public Interest Criterion 4013 may also apply to prevent the applicant from being granted certain types of visas for a period of three years form the date of visa cancellation. However, those consequences have arisen as a result of the earlier cancellation and as the Tribunal places limited weight on such similar consequences which flow from the cancellation of this visa.
136. Having regard to the information before the Tribunal and to the applicant’s circumstances, the Tribunal places only slight weight on this consideration against exercising the discretion to cancel the applicant’s visa.
Any other matters
137. As noted above, the applicant has a son in [Country 1] who he stated he hopes to bring to Australia to settle here with his wife. He states he needs the visa to work in the community to support his son, fight his charges and convictions and put himself in a position where he can be reunited with his family.
138. The applicant’s son is living with his grandparents and mother in [Country 1]. He has been in [Country 1] since January 2020 and is now [age] years old. While he has the care and protection of his mother the Tribunal finds his relationship to the applicant is a parental one and to the extent the cancellation of the visa impacts the applicant’s ability to earn an income to support his son and to make arrangements for the eventual reunification of the family the Tribunal finds it is in the best interests of the applicant’s son that the visa is not cancelled. However, given the applicant’s son is not a citizen of permanent resident of Australia, the fact he has been separated from the applicant for some time, including after COVID restrictions prevent the applicant’s travel to [Country 1] or his family’s travel to Australia to visit, the Tribunal places only moderate weight on this factor against exercising the discretion to cancel the visa.
139. The Tribunal notes the applicant also testified he occasionally supports his siblings with school expenses related to their children. He did not offer any evidence to corroborate this claim or any detail to suggest the children would be impacted by the decision to cancel his Bridging visa. Accordingly, the Tribunal does not afford any weight to this consideration above that applied earlier in considering the hardship which may be caused by a decision to cancel the visa.
140. The Tribunal considered the purpose of the applicant’s travel and stay in Australia, and whether he had a compelling need to remain in Australia. The applicant told the Tribunal he travelled to Australia on a visitor visa to settle here with his family as it was difficult for him to work in [Country 1] and his wife did not want to live in Fiji due to language, social and economic challenges for her there. The Tribunal notes that the applicant travelled to Australia to settle here but remained on a visitor visa until applying for protection shortly after the criminal charges were laid against him. He said he did this because after the charges were laid, he was at risk of charges being laid in Fiji. He was unable to say what charges may be brought against him there. The Tribunal does not consider this weighs against cancellation of the visa.
141. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. There is no information before the Tribunal that the applicant has been non-compliant with his current visa conditions. However, there was information that the applicant had been employed for a number of years while on a series of Visitor’s visas, which do not authorise the applicant to work. This was prior to the applicant being granted his Bridging visa A. In this regard the Tribunal notes that information pertaining to the offences for which the applicant was convicted and those for which he is charged suggests he was working at the time of both offences, in July 2020 and July 2021, when he held Visitor visas. The second Bridging visa E cancellation decision notes that the applicant had previously worked for [Employer 1] while on a Visitor visa which was subject to a no work condition (visa condition 8101). According to the decision the breach was previously established and the business was issued with an Illegal Worker Warning Notice (IWWN) and the applicant has stated he had helped in the [specified section] at the business for 7 months. The decision notes his visitor visa was not cancelled at that time as it had ceased prior to a cancellation assessment.
142. In response to this information the applicant said he was not employed at the business but was a ‘volunteer’ which was not in breach of his visa conditions. When the Tribunal asked if he received anything in return for this work, he said his friend paid for his accommodation, mobile phone charges and transport. The Tribunal noted that these might be considered financial compensation for working. The applicant denied this and maintained he was a volunteer. The Tribunal considered the applicant’s claims lacked credibility both in light of his evidence of compensation for his work and in light of his evidence that he came to Australia to settle here and to work to support his family overseas. The Tribunal considers the applicant’s conduct demonstrates a disregard for his previous visa conditions and gives this slight weight in favour of cancelling the visa.
143. The delegate found that the applicant had been generally cooperative and compliant in his dealings with the Department. The Tribunal gives this factor slight weight in favour of not exercising the discretion to cancel the visa.
144. The applicant also submitted against cancellation of the visa his lack of prior criminal history in Australia or elsewhere and his history of positive contributions in Fiji through work and charitable endeavours. The applicant provided a number of newspaper articles from Fiji which document his involvement in Fiji in arts activities, sporting [competitions], awards for community involvement and participation in [a named agency]. The Tribunal accepts these articles evidence the applicant’s prosocial activities in Fiji and his involvement in the Fijian community across a number of years which is to his credit. The Tribunal affords this consideration slight weight in favour of not cancelling the visa.
CONCLUSION
145. The Tribunal has considered the applicant’s circumstances in the context of the guidance provided by Direction No 63. Applying the principles outlined in the Direction the Tribunal has weighed the primary and secondary considerations outlined in the Direction.
146. The Tribunal has found that the government’s view regarding the prescribed grounds weighs heavily in favour of exercising the discretion to cancel the visa. The consideration of the best interests of children in Australia weighs slightly against cancellation in the applicant’s circumstances. Overall, the primary consideration of the government’s view outweighs the best interests of children and the primary considerations weigh heavily favour of cancelling the applicant’s visa.
147. The Tribunal places moderate weight on the impact cancellation would have on the applicant’s family unit against cancelling the visa. The degree of hardship that the applicant may experience is the loss of an opportunity to earn an income to support his family and additional difficulty in managing his defence of the charges and any appeal against his convictions. The Tribunal has found this also weighs moderately against cancelling the visa.
148. The Tribunal accepts that the consequences of cancelling his visa will be that he remains sin immigration detention until his protection visa application is finally determined and that the cancellation will impact the range of other visa options available to him. The Tribunal has found this weighs slightly against cancelling the visa in the applicant’s circumstances.
149. The Tribunal has also had regard to other considerations not specifically identified in Direction 63, in doing so the Tribunal has had regard to matters raised by the applicant, and matters in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
150. The Tribunal considered that the best interests of the applicant’s minor son in [Country 1] weighed slightly against cancelling the visa.
151. The Tribunal considered the evidence of some non-compliance with respect to work arrangements on prior Visitor’s visas weighed slightly in favour of cancelling the visa.
152. The Tribunal considered that the applicant’s prior good conduct, including evidence of his community service and cultural activities in Fiji weighed slightly against cancelling the visa.
153. Overall, the Tribunal considers that those factors weighing in favour of exercising the discretion to cancel the visa outweigh those weighing against cancellation in the applicant’s circumstances.
154. Considering the circumstances as a whole and noting the principles within Direction 63 the Tribunal concludes that the visa should be cancelled. As a result, the Tribunal affirms the first Bridging visa E cancellation decision.
155. With respect to the second visa Bridging visa E decision, the Tribunal considers that this decision purported to cancel a visa which had already been cancelled. As such the decision was a nullity.
156. In any event, in light of the Tribunal’s findings with respect to the first Bridging visa E cancellation decision the Tribunal considers that the second Bridging visa E cancellation decision should be set aside and substituted with a decision that the visa cancellation decision was of no legal effect because of the operative effect of the delegate’s decision on 14 April 2023 to cancel the same visa.
DECISION
157. With respect to case number 2305259 the Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
158. With respect to case number 2305515 the Tribunal sets aside the decision under review and substitutes a decision that the decision by the delegate on 14 April 2023 to cancel the applicant’s Subclass 050 (Bridging (General)) visa was of no legal effect because of the operative effect of the delegate’s decision on 11 April 2023 to cancel the same visa.
Simone Burford
Senior Member