2309285 (Migration)

2309285 (Migration) [2024] AATA 973 (16 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mr KERRY MURPHY
CASE NUMBER: 2309285

MEMBER:Bridget Cullen
DATE:16 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the Applicant’s Subclass 030 (Bridging C) visa.
Statement made on 16 April 2024 at 6.29pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – incorrect information with the visa application – previous criminal convictions – illegal entry – deportation from another country – overstaying a Temporary Transit visa – impact on the applicant’s business – financial hardship – indefinite detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 36, 48, 97-105, 107-109, 140, 189, 198, 359
Migration Regulations 1994, r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of the 26 June 2023 decision made by a Delegate of the Minister for Home Affairs to cancel the Applicant’s Subclass 030 (Bridging C) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The Delegate cancelled the visa on the basis that the Applicant had provided incorrect information in conjunction with his visa application, giving rise to the cancellation power, and the delegate found the grounds supporting for the cancellation outweighed the factors against cancellation. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The Applicant appeared before the Tribunal on 14 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Witness B]. [Witness A] is the part owner (with the Applicant) of [Business 1] and newly established [Business 2], both located in [Suburb 1]. [Witness B] is the [official] of a community organisation with which the Applicant has been involved.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The Applicant was represented in relation to the review. The representative attended the Tribunal hearing, and made submissions. The Tribunal provided an opportunity for the representative to also provide post-hearing submissions.
For the following reasons, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with sections 101(b) and 102(b) of the Act, leading the Delegate to conclude that there were grounds to cancel the Applicant’s Subclass 030 (Bridging C) visa under section 109 of the Act, relying on the provisions of section 107A.
The Department received information from authorities in [Country 1] indicating that the Applicant entered [Country 1] illegally, with no visa or passport, and was then charged and convicted [in] February 2013 of the criminal offence of “Producing a Class B controlled drug – cannabis”. The Applicant was removed from [Country 1] following a prison sentence.
The information was discovered by the Department after the Applicant consented to providing his biometric information in conjunction with his Protection (Subclass 866) visa application, leading to his details being matched.
The Applicant, in his response to the Department’s Notice of Intention to Consider Cancellation, conceded that he provided incorrect information in relation to his 2013 conviction in [Country 1], his removal from [Country 1], and in relation to his residential address and travel histories. In a Statutory Declaration dated 25 March 2023, the Applicant said that:
“…I did not disclose my conviction on the passenger entry card. I also failed to disclose it in my visa application and form 866 for a protection visa. I failed to disclose my removal from [Country 1].
My full address history is attached. My full employment history is attached. My previous travel history is attached. I apologise for failing to provide correct details in the past. In 2018 when I arrived in Australia, I was very fearful of being sent back to Vietnam, given what I had done there during the 2017 protests. I know I should have provided correct details, but due to my fear, I did not give the full history especially back in 2011-2013 when I was smuggled to [Country 1], convicted and removed from [Country 1].
[..]
I did not explain this information previously I was worried that Australia might think I had a bad background and would not accept the application. All the information about my life and what I did in my previous declaration about events from 2016 to date is true and current….”.
The Applicant confirmed the information provided in his 25 March 2023 Statutory Declaration in his subsequent Statutory Declaration dated 6 February 2024.
The Tribunal finds, on the basis of the Applicant’s admissions, that he provided incorrect answers in relation to whether he had any criminal convictions, as he did not disclose his criminal conviction in [Country 1] in his application for a Protection visa on 27 July 2018, and he has therefore not complied with s 101(b) of the Act. Further, the Tribunal finds, also on the basis of the Applicant’s admissions, that he provided incorrect answers in relation to his application for the associated Bridging C (subclass 030) visa that is the subject of this review, in relation to his criminal conviction and removal from [Country 1], and residential address and travel histories and he has therefore not complied with s 101(b) of the Act.
For these reasons, the Tribunal finds that there was non-compliance with s 101(b) and s 102(b) by the Applicant in the way described in the s 107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the Applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the Applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Certificate and notification regarding disclosure of certain information to Tribunal under s 375A of the Act
The Department file contains a s 375A Certificate that prohibits the disclosure of information contained in certain TRIM references in the department file to anyone other than the Tribunal. A copy of the Certificate was provided to the representative at the hearing, and he was invited to make submissions in relation to it.
The TRIM references are detailed in the certificate. It was claimed that disclosure of the information would be contrary to the public interest because disclosure would:
·prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance;
- disclose, or enable a person to ascertain the existence or identity of, a confidential source of information;
- disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods;
- where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant; and
- the information would disclose lawful methods for preventing, detecting and investigation breaches or evasions of the law which would likely prejudice the effectiveness of those methods.
The Certificate is valid, but the information contained in the Certificates relates to information that has been provided in the Applicant’s submissions and Statutory Declarations, namely in relation to his criminal history in [Country 1] and the grounds for cancellation, and in Australia. This information is something that the Applicant is aware of, as is indicated in his own material before the Tribunal, and based upon his admission that a ground for cancellation exists.
Material provided to the Tribunal
The Applicant provided the Tribunal with the following information in conjunction with the review, in advance of the hearing:
·Representative’s Written Submissions, dated 6 February 2024.
Statutory Declarations
·Statutory Declaration of the Applicant, dated 6 February 2024
·Statutory Declaration of [Witness B], dated 5 February 2024
·Statutory Declaration of [Witness A], dated 6 February 2024
oCopy of [Driver’s Licence] for [Witness A], [Birth Certificates] for [Witness A’s] children, copy of [Witness A’s] Australian passport
Documents relevant to criminal matters
·National Police Certificate - Name Check Only – Immigration/Citizenship – Australia, dated [in] November 2023 – disclosing the following Court outcome for the Applicant:
·[Court 1], Court Date [in] September 2023, Offence – Act “Cultivate Trafficable Qty Of Cannabis for Sale” with a Court result of “Convicted and Fined $[amount]”.
·Copy of s616 Criminal Code 2002 (ACT) “Cultivated controlled plant for selling” and copy of s133 Legislation Act 2001 (ACT) “Penalty Units”
·Australian Federal Police Amended Statement of Facts
·Copies of screenshots for Direct Debit payments by the Applicant in relation to the ACT fine
·[Traffic] Record for the Applicant, dated 6 February 2024, revealing the following events:
·[July 2022] Drive Etd-M/V-Over General But Not Over Mid A/Limit [Suburb 2] .060 BAC with a result date [in September 2022] and a result of $600.00 Disqualified and Restricted 2M
·[March 2019] Exceed Speed Limit In Speed Zone By Less Than 13 KM/H 1 PTS with a result date of [June 2019] and a result of $174.00
·[Pathology] results for the Applicant indicated that the Applicant had a “Drug Screen – Urine” test [in] February 2024, which resulted in no drugs being detected
Documents relevant to [Business 1] business
·ASIC Company Extract for [Business 3], dated 6 February 2024, indicating that [Business 3] was first registered [in January] 2021, and that the Applicant and [Witness A] are both Directors appointed on [the same date]
·ASIC Extract dated [in] February 2024 for [Business 1], a Registered Business Name held by [Business 3], registered [in] January 2021
·Information from Workforce Australia in relation to chef position vacancies in the [specified regions]
Documents relevant to new [Business 2] business
·ASIC Extract dated 6 February 2024 for [Business 2], ACN [specified], registered [in] October 2023, indicating that the Applicant was appointed sole Director and Secretary at the time of registration
·Approved Development Application Decision Notice, approving works at [Business 2], dated 10 January 2024
·Approval for Plumbing and Drainage works, issued by the [named] Council in relation to the [Business 2] premises, dated 7 December 2023
·Bank transfer receipt dated 12 January 2024 for payment of [Business 2] Security Cash Bond in the amount of $7,865.00
·Copy of Lease Disclosure Statement between [Business 2] and Lessor, dated 10 January 2024
·Design Plans and 3D concept drawings, including fit-out specifications, for [Business 2] premises
·Business Insurance Certificate of Currency for [Business 2], policy period from 12 January 2024 until 12 January 2025
·Invoice for purchase of Food Equipment from commercial food equipment company, dated 18 January 2024, in the amount of $23,418.40
·Sales quotation from commercial equipment provider, dated 16 January 2024 in the amount of $17,843.48
The Tribunal provided the Applicant with the opportunity following the hearing to provide further information, in particular, in relation to the staffing arrangements for both [Business 1] and [Business 2]. On 21 February 2024, the Applicant requested an extension of time to provide further submissions, which the Tribunal granted.
On 26 February 2024, the Representative filed further submissions in the Tribunal, attaching the following additional information, relevant to the Applicant’s business interests:
·[Business 3] Financial Report 30 June 2023
·BAS July 2022 - September 2022
·BAS October 2022 – December 2022
·BAS January 2023 - March 2023
·BAS April 2023 - June 2023
·BAS July 2023 – September 2023
·Copy of email from [Agency 1] to [Business 1] regarding staff employment and rates in accordance with applicable Hospitality Industry Award
·Staff pay slips from 2023
·Menu of [Business 1]
·Certificates of appreciation to [Business 1] and the Applicant from Community organisations
The correct information
The Applicant concedes that he provided incorrect information in relation to the following matters:
·His 2013 conviction in [Country 1] for the criminal offence of “Producing a Class B controlled drug – cannabis”;
·His 2013 removal from [Country 1];
·His correct residential address history; and
·The full details of his travel history.
It is of vital importance that Applicants provide truthful responses to questions relating to immigration matters, particularly in relation to matters of the variety that the Applicant purposefully did not disclose, irrespective of the Applicant’s reasons for doing so. For this reason, the Tribunal places very significant weight in favour of the Applicant’s visa remaining cancelled.
The content of the genuine document (if any)
This matter involves the provision by the Applicant of incorrect answers on his visa application, not bogus or fraudulently obtained or altered documents. Therefore, this factor is not relevant, and the Tribunal gives it no weight either for or against cancellation.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The representative has outlined the relevant Australian immigration history in his written submissions. The Applicant arrived in Australia [in] May 2018 at a transit passenger, and then made application for a Protection (Class XA) visa on 28 August 2018.
The incorrect answers provided by the Applicant in relation to his Temporary Transit (subclass 771) visa (namely that he did not have any criminal convictions), in the Tribunal’s view very likely led to the Applicant clearing immigration and being permitted to remain in Australia. His Temporary Transit (subclass 771) visa was valid for a 3-day stay.
The representative submits that:
Whether he would have been granted a transit visa at the border or not was a decision of the officer at the airport. The grant of the first bridging visa C was automatic, on the application for a class XA protection visa. The second Class WC bridging visa C was granted following an assessment of compelling need to work.
As the decision is made on the basis of exercise of discretion where a character issue arises, it is not possible to fully address this factor. Also it is relevant to consider the protection claims and the fact they have been accepted.
The purpose of a Temporary Transit Visa (Subclass 771) is to allow Applicants with evidence of a confirmed booking to another country to transit through Australia for no longer than 72 hours.
It is correct, as the representative suggests, that it is not possible to “go back in time” and to definitively determine what would have happened in relation to whether the Applicant would have been allowed to transit in Australia. However, the Tribunal does not think that this weighs in favour of the Applicant. Had the Applicant been truthful, the Tribunal thinks it highly plausible that the Applicant, given his criminal record, would have been refused entry to Australia. In deliberately hiding the existence of his conviction in [Country 1], which led to his deportation there (as well as hiding his true address and travel history), the Applicant managed to avoid any scrutiny by the Australian Border Force.
It is of course possible that the ABF airport officer would have permitted the Applicant entry, despite the existence of the Applicant’s criminal record. The magnitude of the Applicant’s conduct is that he has precluded the ability of the ABF to have even been able to ask the Applicant questions about his criminal conviction and deportation.
Had the Applicant provided correct information, the ABF would have then been able to properly assess the circumstances upon which the Applicant gained entry to Australia. The Tribunal considers that the decision to allow the Applicant to clear immigration was based very significantly on the incorrect information provided by the Applicant.

For this reason, the Tribunal places very significant weight on this factor, in favour of the visa remaining cancelled.
The circumstances in which the non-compliance occurred
The representative submitted the following in relation to this ground:
The details of the non-compliance are explained in the attached declaration. [The applicant] was fearful he could be returned to Vietnam, where he faced a well-founded fear of persecution. That fear was considered in detail by the AAT and due to events in 2017 and his subsequent activities in Australia, [the applicant] was found to meet the protection criteria in s36(2)(a).
This does not justify the non-disclosure, but is his explanation of why he did what he did.
In his 6 February 2024 Statutory Declaration, the Applicant says that:
I did not disclose my [Country 1] conviction on the passenger entry card. I also failed to disclose it in my visa application and form 866 for a protection visa. I failed to disclose my removal from [Country 1].
I confirm my details in my previous statutory declaration of 23 March 2023. I made this new declaration to update my circumstances since March 2023.
The Applicant’s previous Statutory Declaration is dated 25 March 2023, not 23 March 2023. In this declaration, the Applicant traverses the circumstances in [Country 1], and his return to [Country 2]. The Applicant says, “I did not explain this information previously I was worried that Australia might think I had a bad background and would not accept the application”.
The Tribunal acknowledges that another Tribunal (differently comprised) has determined that the Applicant meets the protection criterion in s 36(2)(a) of the Act. Although the Applicant’s claimed fear of returning to Vietnam offers some explanation, in the context of the Applicant having held a Transit Visa (Subclass 771), it is the case that the Applicant could have obtained the Transit Visa, only in circumstances where he held a confirmed booking to travel to another country. In other words, the need for the Applicant to remain in Australia, as opposed to just going on to travel to the country he held a booking for is not clear to the Tribunal.
The Tribunal considers that the evidence before it would also support a finding that the Applicant strategically withheld information from immigration, to facilitate his ability to remain onshore in Australia and claim asylum. The Applicant acted deliberately to conceal not only his criminal history and deportation, but also his residential address history and travel history.
The intentionality of the Applicant’s provision of incorrect information, together with the fact that he overstayed the Temporary Transit visa, strongly suggests to the Tribunal that the Applicant did not ever intend to transit through Australia consistent with the purposes for which the Temporary Transit Visa (Subclass 771) visa was granted, had rather sought to remain in Australia for the purposes of applying for protection. By concealing his criminal record and deportation, the Applicant facilitated his ability to remain in Australia and apply for protection.
Balancing the deliberate nature of the Applicant’s securing a pathway to apply for protection by providing clearly incorrect information, and accounting for the Applicant’s claimed fears as supported by his ultimately being found to meet the criterion in s 36(2)(a) of the Act, the Tribunal considers that the circumstances in which the information was provided weigh neutrally; neither in favour of nor against cancellation.
The present circumstances of the visa holder
The Applicant provided a copy of the AAT protection visa decision to the Tribunal. The Tribunal considers it very significant that the Applicant’s claims to require protection have been accepted. Although the Applicant concedes that the Tribunal assessing his protection claims was not aware of his criminal history and deportation, he submits that these matters were not relevant to the assessment of his claims to require protection. It appears to this Tribunal that the genesis of the Applicant’s claims do relate to matters that transpired following his return to Vietnam, following his deportation from [Country 1]. That the Applicant has been found to be a refugee weighs in the Applicant’s favour.
The Applicant has provided the Tribunal with expansive information about the businesses that he has set up in [his area]. The first of these businesses, [Business 1] (part of [Business 3]) is a “[specified business], geographically located in an area with an established Vietnamese community. The Applicant explained that there is significant competition amongst other [similar businesses] in the area. He said that the method they use to produce [their products] is unique. If the [business model] became known in the area, the Applicant claims it would diminish [Business 1’s] competitive advantage.
The Applicant works as the Chef/Cook. [Witness A], who gave evidence before the Tribunal, is the Applicant’s partner in the business, and works as the Restaurant Manager. [Witness A] is an Australian citizen, and single mother of [number of children]. She does much of her work from home, and would not be able to take over the Applicant’s role as Chef/Cook. She does not have this training, and she would not be able to [handle his duties].
The Applicant says that it would not be possible to acquire another Cook/Chef, without compromising the [specific business model], and also because there is a high level of demand for skilled cooks, and a high level of shortage, making it difficult to fill the position if the Applicant was unable to work in the role. The Tribunal accepts that the Applicant performs a valuable role in the context of this small business, and while the Tribunal thinks it would eventually be possible to acquire another Cook/Chef, recognises that this might come with a lesser commitment to the business, and at a significant cost.
Given the nature of the business, the Tribunal thinks it likely that the Applicant and [Witness A], are significant contributors to the success of the business, and that the devotion they have to making the business an operation success is something that a paid employee would be unlikely to replicate.
The Applicant and [Witness A] had, at the time of hearing, incurred significant costs associated with setting up a new, [specified business] near [Business 1], in the same shopping centre, [named]. The set up is well advanced, with Council approval, fit out plans, and commercial equipment having been purchased. The representative submitted the following in relation to the new business:
Furthermore, they are expanding their business with a new restaurant to open nearby in the same shopping centre, called [Business 2]. Already the two owners have invested significant amounts in setting up the business including insurance, bond, equipment and set up costs. [Witness A] has travelled [overseas] for training, nd is due to travel again soon for further training to [another country].
[Witness A] is an Australian citizen and has [number] children, and she has already made very significant financial investments in the two businesses and has financial commitments. She states that she is extremeley worried that if [the applicant] were not able to work, that she does not know how the business could survive. Finding new and competent staff is not easy
[Witness A] states that she is planning to work more in [Business 2], and [the applicant] will be more in [Business 1], but they will both move between the two businesses as required. If he were not able to work, it is the view of [Witness A], that she would need to totally reconsider the businesses and whether they may need to close.
While the evidence indicates that [Business 1] commenced operations before the Applicant’s visa was cancelled, it appears that [Business 2] was registered in October of 2023. At this point, the Applicant’s visa had been cancelled. The Applicant’s criminal history was also, by this point, established. There are risk factors that any individual takes when engaging in commerce, and the prospect that a visa holding co-director might find themselves unable to work if their visa is cancelled, falls into that pool of risks. In deciding the Applicant was a person with whom she wished to engage in business, it was incumbent upon [Witness A] to make any relevant enquiries of the Applicant about these matters, so as to safeguard her own position. [Witness A] will certainly experience great difficulty if the Applicant cannot work as the Chef at [Business 1] or assist her in the opening and establishment of [Business 2]. The Tribunal accepts that this will cause her significant stress, and quite possibly some financial loss.
Minimally, [Witness A] would need to engage a Chef, as the Tribunal accepts that she would not be able to undertake this role herself, were the Applicant’s visa cancelled. The Tribunal also accepts that engaging a new chef could be challenging in the current employment market. It is also likely that [Witness A] would find herself in a difficult position financially or in terms of her hours of work, given that she is a single mother of [number of children]. The Tribunal accepts that the Applicant is very active in both [Business 1] and [Business 2].
The Tribunal observes that [Witness A] was a straightforward witness, and accepts her evidence about the challenges the business, and she herself would face if the Applicant’s visa remained cancelled. However, the Tribunal does not consider that the criterion being considered – the present circumstances of the visa holder – extends to the Tribunal’s directly considering the inconvenience to [Witness A].
The Tribunal accepts that the Applicant is working hard with [Witness A] in both businesses, and that he will likely suffer financial loss, and possibly even the closure of his businesses, if his visa remains cancelled.
In the case of [Business 2], the Applicant knew that his visa had been cancelled prior to taking steps to register the business and take on some of the related financial and legal obligations associated with business operations. In other words, the Applicant accepted a level of uncertainty and financial risk knowing that his visa had been cancelled.
Still, the Tribunal considers that the Applicant’s entrepreneurship in using his skills to establish two businesses with [Witness A], and thereby support himself financially, is positive. The Tribunal gives the Applicant’s present circumstances significant weight as a factor in his favour, against cancellation.
The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act
The Applicant admitted providing incorrect information to the Department as particularised, above, in his response to the Department’s Notice of Intention to Consider Cancellation. In consequence, the Tribunal accepts that the Applicant subsequently met his Subdivision C obligations, and therefore places only a small amount of weight on this factor in favour of the visa remaining cancelled.
Any other instances of non-compliance by the visa holder known to the Minister
In the Applicant’s Statutory Declaration dated 25 March 2023, he indicates that he is aware that his Temporary Transit visa was valid for 3-days at the time it was granted on his arrival in Australia [in] May 2018, and further indicates that he then applied for protection on 28 August 2018, meaning that he is aware that his Temporary Transit visa had expired by this time. The Tribunal places a small amount of weight on this non-compliance, in not holding a valid visa for a short period, as a factor in favour of the visa remaining cancelled.
The time that has elapsed since the non-compliance
The non-compliance occurred when the visa holder provided incorrect information in 2018, approximately 6 years ago. During this time, the Applicant has demonstrated to the Tribunal that he has integrated into the Australian community, and is an individual who is willing to work hard in the restaurant injury. The evidence before the Tribunal establishes that GST and taxes are being paid. During the past 6 years, the Applicant has had engagement with Australia’s criminal justice system. However, he has also been found to be a person in respect of whom Australia has protection obligations.
Balancing these considerations, the Tribunal places no weight on the time that has elapsed as a factor either in favour of or against cancellation of the Applicant’s visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
The Applicant’s representative submitted the following in relation to the Applicant’s criminal record in Australia:
The only subsequent issues were the conviction [in] September 2023, and a Motor Traffic offence of drink driving in September 2022. It is not clear why the Motor Traffic matter does not appear on the AFP report of [November] 2023. This matter was dealt with by a fine, which was paid. There was also a speeding fine in 2019 of $174 and a 1 point penalty. Whilst the two driving matters are not condoned, they are at the minor end of the scale and the speeding fine was anot even a court appearance.
Arguably the more serious matter was the offence in the ACT. The AFP record for that is attached together with the AFP Police Certificate. The AFP facts sheet was redacted by the AFP, and that was provided to us by the lawyers acting for [the applicant] in his [Court 1] matter.
The AFP facts sheet notes that [the applicant] was only in the property from 6.03pm to 6.37pm. This can be seen on page 2 of the report, third paragraph from the top of that page, in the paragraph commencing:
‘At 6.03pm…’
The matter was dealt with by the [Court 1] on the basis that [the applicant] was only on the premises for 37 minutes, and most of the time outside sweeping and cleaning up. [The applicant] discusses this in his declaration. The Court decided that the appropriate penalty on the facts was a fine of $[amount], and he is paying this off at $[amount] a month in instalments, directly debited form his account. Whilst this is a significant fine, the fact that no custodial sentence was imposed indicates that the Court saw the offence at the lower end of the scale.
This can be seen when the amount of $[amount] is considered against the maximum possible fine of $160,000.
The Tribunal regards the Applicant’s criminal conduct as a breach of the law since the non-compliance as a factor that should be weighed in favour of cancellation. The Tribunal agrees that the Applicant’s representative has accurately characterised the penalty imposed in relation to the more serious matter, involving the ACT Conviction for Cultivate Trafficable Qty Of Cannabis for Sale as being at the lesser end of the scale of possible fines.
The Tribunal has not considered the Applicant’s criminal history in the context of making any determinations about his character as this consideration will be made by the Department’s Character Unit in the context of finalising his Protection Visa application, and is not the role of this Tribunal.
The Tribunal finds that this consideration weighs in favour of cancellation and gives this consideration some weight.
Any contribution made by the holder to the community
The Applicant, [Witness A], and [Witness B] all gave evidence about the significant contributions that the Applicant had made to the Vietnamese Community, both locally in [his local area], and by fundraising and assisting persons living in Vietnam. The Applicant has been involved in organisations that have the objective of assisting Vietnamese people in Australia and abroad.
The Applicant provides employment opportunities for students and persons who are being assisted to find employment through an agency, [Agency 1]. The Applicant, both privately and through his business, sponsors cultural and community events. This has included sponsoring events such as the Lunar New Year Festival.
The Tribunal accepts the Applicant has made a meaningful contribution to his Vietnamese community, which is a strong and vibrant part of the [area] in which his restaurants operate. The Applicant has also contributed to broader community needs, such as assisting refugees and flood victims. Although the Tribunal views the Applicant’s contributions favourably, in the Applicant’s case, would have a flow on benefit of advertising his restaurant to the community.
Nevertheless, the Tribunal thinks that these community contributions are positive, as they are things that the Applicant has done voluntarily. In particular, there has been a benefit to the community flowing on from the Applicant’s festival sponsorship, as facilitating such events allows an expression of culture to be enjoyed and experienced by the entire community. The Tribunal accordingly places some weight on this factor in favour of the visa not remaining cancelled.
Discretionary considerations
The Tribunal has gone on to consider other factors where relevant on the material before it or as raised under policy.
Whether there would be consequential cancellations of other persons’ visas under s140
There are no other persons whose visas may be cancelled as a consequence of the Applicant’s visa being cancelled. The Tribunal places no weight on this factor in favour of the visa not remaining cancelled.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The mandatory legal consequences of the cancellation of the Applicant’s visa are that he would become an unlawful non-citizen and may be detained in immigration detention under s 189 of the Act and may be deported from Australia under s 198 of the Act if he does not voluntarily depart.
Cancellation of the Applicant’s visa will also mean that he is precluded from applying for some visas under s 48 of the Act while he remains in Australia. This consequence has little practical relevance for the Applicant because he already has a Protection visa application that has not been finally determined.
In addition, cancellation of the Applicant’s visa means he will be affected by Public Interest Criterion 4013 which will limit the Applicant’s ability to apply for a temporary visa to return to Australia for a specified period of time.
The Tribunal finds that this consideration weighs against the cancellation of the Applicant’s visa and the Tribunal gives this consideration some weight.
Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation
Australia owes visa applicants a range of obligations under several international agreements that Australia is a signatory to and has ratified including:
·The 1951 Convention relating to the Status of Refugees (the Refugees Convention);
·The 1967 Protocol to the Refugees Convention (the Protocol);
·The 1966 International Covenant on Civil and Political Rights (the ICCPR);
·The 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and
·The 1989 Convention of the Rights of the Child (the CRC).
The Tribunal has considered whether the cancellation of the Applicant’s visa would breach any obligation Australia owes under these international agreements.
The Applicant is not married, does not have a partner, and does not have any children. Therefore, cancellation would not lead to a breach of the CRC.
The Refugees Convention, the Protocol, the ICCPR and the CAT

Collectively, these international agreements establish:
·The rights of refugees who are defined as persons who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are outside their country of nationality and are unable or, owing to such fear, are unwilling to avail themselves of the protection of that country; or who, not having a nationality and being outside the country of their former habitual residence as a result of such events, are unable or, owing to such fear, are unwilling to return to it;
·Create an obligation not to expel or return (the non-refoulment obligation) a refugee if their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion or they would be in danger of being subjected to torture; and
·Enshrine the protection of civic and political rights.
The protection visa decision records that the Applicant fears returning to Vietnam because he participated in the [specified] demonstrations as an organiser and leader of that demonstration, and that he was the subject of an arrest warrant and remains wanted by the Communist Vietnamese government. He also fears returning because of his ongoing involvement in anti-Vietnamese government groups and protests.
The Tribunal observes that the Applicant has applied for a Protection visa, which has not been finally determined. The Tribunal acknowledges that the Applicant may face indefinite detention if the visa remains cancelled.
The Tribunal further observes that cancellation of the Applicant’s visa does not mean the Applicant will be automatically removed from Australia, despite the wording of s 198 of the Act. A decision to deport the applicant from Australia is a separate decision to the decision to cancel the applicant’s visa.
In the absence of information to the contrary, it does not appear that a decision to remove the Applicant from Australia would be made prior to his application for a Protection visa being resolved by the Department. Therefore, the Tribunal is satisfied that cancellation of the Applicant’s visa would not potentially lead to the Applicant being removed from Australia in breach of Australia’s non-refoulement and other obligations under the Refugees Convention, the Protocol, the ICCPR and the CAT.
Given that a decision to cancel the Applicant’s visa could lead to his indefinite detention, the Tribunal gives this consideration some weight as a factor against cancellation of the Applicant’s visa.
Any other relevant matter
The Applicant did not bring any other relevant matter to the attention of the Tribunal.
The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the Applicant’s visa.
Conclusion
The discretionary considerations that weigh in support of the cancellation of the Applicant’s Subclass 030 (Bridging C) visa are:
·The correct information (very significant weight);
·Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document (very significant weight);
·The subsequent behaviour of the visa holder concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act (small amount of weight);
·Any other instances of non-compliance by the visa holder known to the Minister (small amount of weight); and
·Any breaches of the law since the non-compliance and the seriousness of those breaches (some weight).
The discretionary considerations that weigh against the cancellation of the Applicant’s Subclass 030 (Bridging C) visa are:
·The present circumstances of the visa holder (significant weight);
·Any contribution made by the holder to the community (some weight);
·Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention (some weight); and
·Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation (some weight).
The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the Applicant’s Subclass 030 (Bridging C) visa are:
·The circumstances in which the non-compliance occurred;
·The time that has elapsed since the non-compliance;
·Whether there would be consequential cancellations of other persons’ visas under s140; and
·Any other relevant matter.
The Tribunal finds that the discretionary considerations that support the cancellation of the Applicant’s visa outweigh the discretionary considerations that weigh against the cancellation of the Applicant’s visa.
Considering the circumstances as a whole, the Tribunal concludes that the Applicant’s Subclass 030 (Bridging C) visa should be cancelled.
Conclusion
The Tribunal has decided that there was non-compliance by the Applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, 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.
Bridget Cullen
Senior Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2024] AATA 973

16 April 2024

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