Babar (Migration)

[2019] AATA 4540

Babar (Migration) [2019] AATA 4540 (15 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hafiz Muhammad Farid Babar
Mrs Muazzma Riaz

CASE NUMBER:  1906375

HOME AFFAIRS REFERENCE(S):           BCC2019/558427

MEMBER:Antonio Dronjic

DATE:15 August 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 15 August 2019 at 2:32pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – ground for cancellation – risk to safety of Australian community or individual – charged with serious criminal offences – committed to stand trial – rape – sexual assault – obtaining property by deception – use of false documents – consideration of discretion – purpose of visa grant no longer exists – seriousness of the alleged offending behaviour – ability to prepare for upcoming trial – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348

CASES
Gong v MIBP [2016] FCCA 561
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 March 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the applicant’s presence in Australia may pose a risk to the safety of a segment of the Australian community, namely female members, and that the proper exercise of her discretion favored cancelling the applicant's visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act, which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1) of the Act, the Tribunal has no jurisdiction with respect to the second named applicant.

   Background to the cancellation of the applicant’s visa

4. The primary decision record of 13 March 2019 provided by the applicant to the Tribunal with the review application sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:

   ·On 24 July 2018, the applicant was granted a Subclass 485 visa that was, but for the cancellation, to remain valid until 24 July 2020;

   ·The Department of Immigration and Border Protection (the Department) was informed by Victoria Police that the applicant was charged with the following criminal offences:

   oRape;

   oSexual assault;

   oObtaining property by deception;

   oUse of false documents; and

   oUnlawful assault.

   ·The primary decision record states that on 15 September 2018, while working as an Uber driver, the applicant allegedly picked up the female passenger in his vehicle. During the ride, the applicant allegedly pulled over and offered to make the fare cheaper if the female passenger consented to a sexual act with him, which she refused. At some point, the applicant allegedly got into the back seat next to the passenger and sexually assaulted her. This caused the female passenger to open the door to get away. She then knocked on a random house door for help and the person who answered the door took the alleged victim to the nearest police station to report the incident. On 17 September 2018, the applicant was interviewed by Victoria Police. The applicant denied sexual contact with the female victim and stated that he had participated in consensual touching and kissing with her. He stated to the police that the alleged victim in fact propositioned him to make the fare cheaper. The applicant agreed to provide DNA sample to the police and the forensic analysis of that DNA sample indicated that the applicant had sexual contact with the alleged victim.

   ·At paragraph five of the primary decision record, it is described why the applicant was charged with obtaining property by deception and use of false documents. It was alleged by the police that the applicant provided Uber Corporation with a false driving licence to regain his Uber accreditation. This deception allegedly resulted in the applicant receiving a new account and paid work between 17 December 2018 and 20 December 2018 when the deception was discovered at which point the Uber account was permanently banned.

   ·At paragraph six of the primary decision record, it is stated that the investigation into the applicant’s Uber account revealed that he has been subject to previous complaints from Uber customers, one of which involved an allegation of touching a female victim while driving her home on 22 January 2018. This alleged incident resulted in the charge of unlawful assault being brought against the applicant.

   ·On 4 January 2019, the applicant was arrested and charged with the above listed offences. He appeared before the Melbourne Magistrates’ Court on 1 February 2019 and was granted bail.

   ·A Notice of Intention to Consider Cancellation (NOICC) was issued on 7 February 2019;

   ·On 12 and 20 February 2019, the applicant responded in writing to the NOICC by disputing all the charges and denying any wrongdoing. He stated that allegations which led to the charges are untrue, baseless and not proven. He stated that, in relation to the incident from January 2018, he had been confused with another person because the complainant was drunk and unsure whether she was in a taxi or an Uber.

   ·He further stated that he is not a risk to the Australian community, that he has lived in Australia since 2015 and has never breached any visa conditions. Nor has he had any criminal convictions in Australia or Pakistan in the past three years. He provided a National Police Certificate dated 11 April 2018 which shows nil criminal convictions in Australia. He submitted several character reference letters from members of the Australian community and copies of his Uber ratings indicating that he provided excellent customer services. He stated that during his incarceration, he completed several courses.

   ·He stated that he is suffering from depression as is now separated from his wife and family and that, if the visa is cancelled, he will suffer financial and emotional hardship.

   ·On 13 March 2019, the delegate proceeded to cancel the applicant’s visa.

5. The applicant applied to the Tribunal on 18 March 2019 for review of the visa cancellation and with the application submitted a copy of the primary decision record.

6. On 31 May 2019, the Tribunal wrote to the applicant informing him that the Department file related to the review contains a Certificate and Notification Regarding Disclosure of Certain Information to the Administrative Appeals Tribunal Under s.375A of the Act  enclosing the copy of the Certificate. The Tribunal has taken the view that this is a valid certificate and accordingly the release of information is prevented. The information contains information shared between internal sections of the Department and external agencies and the disclosure of this information would be contrary to the public interest. The Tribunal notes that the primary decision record, which the applicant submitted with his review application, contains the information protected by the Certificate. The applicant was invited to make submissions on the validity of the certificate and state why the material should be released.

7. The applicant did not respond to the Tribunal’s invitation.

8. On 3 June 2019, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 6 August 2019.

9. The applicant appeared before the Tribunal on 6 August 2019 to give evidence and present arguments. At the commencement of the hearing, the applicant submitted:

   ·A copy of Undertaking of Bail dated 1 August 2019 as evidence that the applicant had a committal hearing before Melbourne Magistrates’ Court and was committed to stand trial for the following offences:

   oRape;

   oSexual assault;

   oObtaining property by deception; and

   oTwo counts of use of false document to prejudice other.

   ·The applicant was granted bail for attendance at the Trial and the document set out the conditions of his bail.

   ·A copy of a National Police Certificate issued by the Australian Federal Police on 11 April 2019 as evidence that there are no disclosable court outcomes recorded against the applicant;

   ·Character reference letters (previously submitted to the Department); and

   ·Copies of the applicant’s Uber ratings indicating that he provided excellent customer services (previously submitted to the Department).

10. The Tribunal began the hearing by explaining the role of the Tribunal and the purpose of the hearing. The Tribunal explained why it does not have jurisdiction in respect of the secondary applicant. The Tribunal informed the applicant that his visa was cancelled under s.116 (1)(e) of the Act. The Tribunal further explained to the applicant that, if satisfied that a ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.

11. In his evidence, the applicant stated that he holds a Pakistani passport. He is married and has no children. His mother and five sisters live in Pakistan. His younger brother is currently in Australia as a holder of a student visa. His mother is operating a property business in Pakistan. His five sisters are married. In Australia, he has three first cousins, two of them living in Melbourne and one in Sydney.

12. In Pakistan, he had completed a Bachelor of Commerce, a Masters of Business Administration and a Masters of Philosophy. For a period of 18 months prior to arriving to Australia he was employed as an accountant. His wife completed a Masters of Philosophy and worked as a manager at a farm. Neither he nor his wife own property in Pakistan. His wife returned to Pakistan after her visa was cancelled and is currently living with his mother. He claims to have regular telephone contact with his family from Pakistan and that both his wife and his mother are aware of the charges brought against him by the police.

13. He first arrived in Australia in 2015 as a holder of a student visa. By March 2018, he had completed a Masters of Professional Accounting. He was granted a Subclass 485 visa on 24 July 2018.

14. He confirmed in his evidence that he wrote to the Tribunal on 28 March 2019 stating that he was charged with several criminal offences in January 2019. He was subsequently arrested and remanded in custody until 1 February 2019 when he was granted bail by a Magistrate. He further confirmed that on 14 February 2019, the Australian Federal Police arrested him and sent him to a detention centre where he remains to date.

15. He stated that he was initially charged with the following offences:

    a.Rape;

    b.Sexual assault;

    c.Obtaining property by deception;

    d.Use of false documents; and

    e.Unlawful assault.

16. He stated in his evidence that he received a copy of the charges and the police brief even before the Department commenced the cancellation procedure and issued a NOICC. He stated that he is aware of the allegations these documents contain. He confirmed that he responded to the NOICC, which essentially contained a summary of the police brief.

17. I noted that these documents were also covered by s.375A Certificate issued by the Department and are sufficiently summarised in the primary decision record provided to the Tribunal by the applicant. The Tribunal explained that it would not be relying on documents covered by the s.375A Certificate in making its decision but will instead rely on information contained in the primary decision record and the applicant’s oral evidence. In addition, the gist or the particulars of the information covered by the Certificate were contained in the delegate’s decision record, a copy of which was provided by the applicant for the purpose of review, and therefore the exemption in s.359A(4)(b) applies in this case.

18. The applicant stated that he appeared before the Melbourne Magistrates’ Court at the committal hearing on 1 August 2019 and was committed by the Court to stand trial on 25 May 2020. He gave evidence that the police dropped the charge of unlawful assault related to the alleged incident from 22 January 2018 as the alleged victim decided not to pursue the case. He confirmed that he is committed to stand trial for the five remaining offences, namely rape, sexual assault, obtaining property by deception and two counts of use of false document to prejudice other.

19. The Tribunal informed the applicant that he does not have to answer any of its questions related to the circumstances surrounding the commitment of the alleged offences. The Tribunal explained the meaning of the privilege against self-incrimination and warned the applicant that anything he stated in his evidence before this Tribunal may be used at the upcoming criminal trial.

20. Whilst acknowledging that, according to the primary decision record, on 20 February 2019, the applicant responded in writing to the NOICC by denying any wrongdoing and stating that allegations which led to the charges are untrue, baseless and not proven, the Tribunal explained to the applicant that it is not the Tribunal’s role to determine whether he is, or is not, guilty of the charges that remain. The Tribunal further explained that pursuant to s.116(1)(e) of the Act the Tribunal is required to determine whether his presence in Australia is or 'may' be a 'risk', or would or 'might be', a 'risk' to the the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

21. The applicant stated that, during the interview with Victoria Police held on 17 September 2018, he explained what happened on 15 September 2018 when the alleged rape and sexual assault took place. He confirmed that DNA testing was conducted by the police and the forensic analysis of that DNA sample indicated only 7% presence of the applicant’s DNA on the alleged victim, which indicates that the alleged victim was mostly touching herself. He stated that according to his barrister’s advice, the police case against him is not strong. He reiterated his innocence in respect of all remaining charges and stated that he has no prior criminal history either from Pakistan or Australia.

22. The Tribunal noted that, according to his oral evidence and documents submitted at the commencement of the hearing, a committal hearing was held before the Melbourne Magistrates’ Court on 1 August 2019 and that the Magistrate decided to commit the applicant to stand a trial on 25 May 2020 in respect of five charges including rape and sexual assault.

23. The Tribunal observed that, according to the primary decision record, he stated that he has been living in Australia since 2015 and has never breached any visa conditions, that he has no criminal convictions in Australia or Pakistan in the past three years, that he submitted several character reference letters from members of the Australian community, that he submitted copies of his Uber ratings indicating that he provided excellent customer service and that during his incarceration, he completed several courses. He further stated that he is suffering from depression as is now separated from his wife and family and that, if the visa is cancelled, he will suffer financial and emotional hardship. The Tribunal asked the applicant if there was anything else that he wanted to raise with the Tribunal.

24. The applicant stated that he was previously granted bail by the Melbourne Magistrates’ Court on $30,000 security and daily reporting to police station. He was also prevented from contacting witnesses and obliged to inform the police of any change of address. He stated that granting of the bail indicates that is not a risk to Australian community. 

25. He further stated that wants to fight the criminal case, that he has not been found guilty yet, that staying in detention breaks him down and makes it difficult to prepare for the criminal trial, that he does not want to go back to Pakistan labelled as rapist and that he has many friends in Australia. He reiterated that he wants to stay strong and fight his case.

26. He stated that he made an ethical mistake but he never tried to harm anybody, that his cousins in Australia have five daughters and that they never felt threatened by him and that he has many female friends in Australia.

27. 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

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

    Does the ground for cancellation exist?

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

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

31. The Tribunal has confined its consideration to whether, on what has been recorded in the primary decision record and the applicant’s oral evidence, what has occurred, of itself, gives rise to a risk to the safety of a segment of the Australian community because of the mere presence of the applicant in Australia.

1. Based on the evidence before it, the Tribunal finds that the applicant was not only charged with several serious criminal offences but was also committed to stand trial after the Magistrate considered the applicant’s case. This finding is sufficient for the Tribunal to conclude that the applicant's presence in Australia is or may be, or would or might be, a 'risk' to the the health, safety or good order of the Australian community or a segment of the Australian community – namely female members of the Australian community.

2. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised, having regard to all the relevant circumstances.

   Consideration of discretion

3. There are no matters specified in the Act or the Migration Regulations 1994 (the Regulations) that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

4. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it.[1] Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and the Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.[2]

   [1]     See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634

   [2]     See Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1429, Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 168; Visnumolakala v Minister for Immigration [2006] FMCA 1209; Alimi v Minister for Immigration & Anor [2007] FMCA 1520; Durzi v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1767 at [49]; Moller v Minister for Immigration and Citizenship [2007] FMCA 168 at [14]; and Sakhno v Minister for Immigration and Citizenship[2007] FMCA 1492 at [55]

5. Nevertheless, the Tribunal considers that the policy guidelines in PAM3 provide a useful starting point in respect of the exercise of its discretion. In considering this matter, the Tribunal has also taken into account the submissions and evidence it received from the applicant.

   The purpose of the visa holder’s travel to and stay in Australia

6. The Subclass 485 visa is a temporary visa of limited duration. The applicant’s visa would, but for the cancellation, have ceased on 24 July 2020. The purpose of granting a Subclass 485 visa is for the international students who have recently graduated with skills and qualifications that Australia needs to enable them to stay in Australia for the period of 18 months to work in an occupation that is on the skill occupation list.

7. The applicant has been in immigration detention since 14 February 2019. Prior to this, he was incarcerated from January to February 2019. As a consequence, he has been unable to fulfill the purpose of his stay in Australia. The applicant is no longer working in a skilled occupation. The Tribunal finds that this purpose no longer exists. I give significant weight to this consideration.

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

8. There is no information before the Tribunal indicating that the applicant has breached any conditions attached to his visa, or that he has been uncooperative in his dealings with the Department.  The Tribunal places some weight on these matters as factors in the applicant’s favour.

   Circumstances in which the ground for cancellation arose

9. The cancellation power under s.116(1)(e) of the Act was enlivened when Victoria Police charged the applicant with various offences, including rape and sexual assault. Despite being committed to stand trial by a Magistrate, the applicant maintains his innocence.

10. I have considered the seriousness of the alleged offending behaviour that led to the circumstances in which the ground for cancellation arose. I am particularly concerned that the applicant was charged and committed to stand trial for rape and sexual assault. However, in this review, the Tribunal is not tasked with deciding whether the applicant is guilty or innocent of the charges. Accordingly, it is not able to assess whether the applicant will or will not be convicted on the charges that remain against him.

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

11. The applicant claims that the visa cancellation will cause emotional and financial hardship to him and his wife. He claims that he is suffering from depression as he is now separated from his wife, who returned to Pakistan.

12. He stated his intention to ‘fight the criminal case’ reiterating that he has not been found guilty yet. He claims that staying in detention breaks him down and makes it difficult to prepare for the criminal trial. He gave evidence that he does not want to go back to Pakistan labelled as a rapist and that he has many female friends in Australia. He stated that his cousins in Australia have five daughters and that they never felt threatened by him.

13. I have taken into consideration the applicant’s evidence that in Pakistan he completed a Bachelor of Commerce, a Masters of Business Administration and a Masters of Philosophy and that he was employed as an accountant. His wife completed a Masters of Philosophy and worked as manager at a farm. His mother, who is operating a property business, and five sisters are living in Pakistan. I have taken into consideration the applicant’s evidence that his younger brother is currently in Australia as a holder of a student visa and that he has three first cousins living in Australia.

14. I accept that the applicant established some ties with the Australian community. I accept that the applicant will suffer hardship if required to depart Australia. I have taken into consideration character reference letters and the applicant’s Uber ratings provided in support of the review application.

15. I accept that the applicant, having been held in immigration detention, may be affected by emotional stress. Despite claiming that he is suffering from depression, no medical evidence to support this claim was presented to the Tribunal.

16. Balanced against any potential hardship to the applicant and his family that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa, which created no expectation of remaining in Australia permanently. The purpose of a Subclass 485 visa is not to enable settlement in Australia on an indefinite basis.

    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

17. The applicant is currently in immigration detention. It is open for the applicant to apply to the Department for a bridging visa “E”. If successful, he will be released from immigration detention. In the absence of another successful visa application being made by the applicant, or granted by the Minister, ultimately the applicant will not have a visa status which will allow him to remain in Australia.

18. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa that was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas for which the applicant may apply. They are not subject to the s. 48 restriction.

19. Consequently, s. 48 of the Act limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant's future application actions into account.

20. Public interest criterion (PIC) 4013(3) in the Regulations provides that a person is affected by a risk factor if a visa previously held by the person is cancelled because the Minister was satisfied that a ground mentioned in s.116(1)(e) of the Act applied to the person. In that event, PIC 4013 operates by mandating that a visa application made within three years of that person's visa being cancelled under s.116(1)(e) will be refused unless one of the stated exceptions apply.

21. The Tribunal has taken into account that potential restriction on the applicant's future Australian visa applications and weighed the issue in his favor. The Tribunal does not have sufficient evidence before it to assess whether the applicant is likely to avail himself of an exception to the PIC's operation such as compelling or compassionate circumstances justifying a further visa grant. Conversely, the Tribunal has taken into account the possibility that the applicant will not be able to make out an exception to the PIC and also weighed that in his favor.

22. However, to be balanced against that is the plain intent of PIC 4013 to restrict future entry into Australia by people affected with the stated risk factors. That must also be considered in this review.

    Whether there would be consequential cancellations under s.140

23. The applicant’s wife’s visa was automatically cancelled as a consequence of this cancellation, by the operation of s.140 (1) of the Act. 

    Whether any international obligations would be breached as a result of the cancellation

24. In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).  

25. There is no evidence before the Tribunal that would suggest that Australia would be in breach of its international obligations pursuant to any of these international agreements. The Tribunal finds that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR is not affected by the cancellation of the applicant’s visa.

    The impact on any victims of family violence

26. There is no evidence before the Tribunal regarding this matter.

    Any other relevant matters

27. The applicant claims that staying in detention breaks him down and makes it difficult to prepare for the criminal trial. The applicant provided no corroborating evidence to his claimed depression in detention and gave evidence that he has access to his phone with which he could contact his criminal lawyer or others for support. Accordingly, the Tribunal does not consider that the applicant’s current detention prejudices his ability to prepare for the criminal trial. As previously stated, it is open for the applicant to apply to the Department for a bridging visa “E”.

    Conclusion on discretion

28. Having regard to the findings above and the circumstances of the case as a whole, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

    DECISION

29. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa.

30. The Tribunal has no jurisdiction with respect to the second named applicant.

    Antonio Dronjic
    Member