Bhinder (Migration) - [2025] ARTA 2249

BHINDER (MIGRATION) [2025] ARTA 2249 (24 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Jashan Jot Singh Bhinder
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2501527
Tribunal:Kira Raif
Place:Sydney
Date:24 July 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 24 July 2025 at 8:55am
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – risk to the safety of the Australian community – applicant charged with offences – bail granted – family financial hardship – visa expired – contribution to the community – making a further visa application – decision under review set aside
LEGISLATION
Bail Act 2013 (NSW), s 17
Migration Act 1958 (Cth), ss 48, 116, 140
CASES
Bethell v MHA [2019] FCCA 1740
Djokovic v MICMSMA (2022) 289 FCR 21
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration and Anor [2017] FCCA 448
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of India, born in August 1995. He was most recently granted the Temporary Graduate visa in June 2023. In December 2024 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling the visa under s.116(1)(e) of the Act. The delegate recorded that the applicant did not respond to the NOICC and his visa was cancelled. (In his July 2025 submission the applicant states that his then representative prepared a response to the NOICC which was not received by the delegate and which was not taken into account. He provided to the Tribunal a copy of that document.) The applicant seeks review of the delegate’s decision.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 11 March 2025 the Tribunal wrote to the applicant inviting him to attend the hearing on 29 April 2025. The applicant requested that the hearing be postponed as he had appointed a new representative and required more time to consider the file. The Tribunal granted the adjournment and invited the applicant to attend the hearing on 24 June 2025. Between 18 June and 24 June 2024 the applicant made several requests to postpone the hearing until early 2026, on the basis that he was due to appear in court in March 2026 in relation to the criminal proceedings. The applicant referred to his ‘right to silence’ and not to provide self-incriminatory evidence, stating that he would not be able to speak to the offence at the hearing. The applicant stated that it would be procedurally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bhinder (Migration)

Details

AGLC: Bhinder (Migration) [2025] ARTA 2249
Case: [2025] ARTA 2249
Decision Date: 24 July 2025

CaseChat Overview and Summary

The case before the Tribunal involved an application to review the decision to cancel the Subclass 485 (Temporary Graduate) visa of the applicant. The applicant, who had been charged with offences, faced the risk of visa cancellation on the grounds of posing a risk to the safety of the Australian community. The decision to cancel the visa was made in light of the applicant's criminal charges and was set to be reviewed by the Tribunal to determine if the decision was appropriate and in line with the relevant legislative provisions.

The central legal issues before the Tribunal included whether the applicant's visa should be cancelled based on the risk he posed to the community and the extent of any hardship that might result from such a cancellation. The Tribunal was required to weigh the risk to the community against the potential hardship to the applicant and his family, as well as the applicant's contributions to the community and his employment. Additionally, the Tribunal needed to consider the applicant's compliance with visa conditions and whether there were any compelling reasons for him to remain in Australia.

In reaching its decision, the Tribunal noted that while there were grounds to believe that the applicant posed a risk to certain segments of the community, it also acknowledged the applicant's contributions to his employer and the community at large. The Tribunal accepted that the cancellation of the visa would result in significant hardship for the applicant, particularly in terms of his future visa prospects and the ability to gain permanent residence in Australia. The Tribunal found that the applicant was fulfilling the purpose of his stay in Australia, having completed studies and secured relevant employment. The Tribunal concluded that, considering all the circumstances, the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 485 visa. The Tribunal recognised the applicant's contributions and the potential hardship of cancelling the visa, leading to the conclusion that the interests of justice were best served by allowing the applicant to remain in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.Date(s) of hearing: 24 June 2025 Representative for the Applicant: Carina Ford Immigration Lawyers

Ratio Decidendi

Legal Principle Established

As the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to segments of the community, the Tribunal finds that there are grounds for cancelling his visa under s. 116(1)(e) of the Act.Consideration of discretion Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), there are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia In his submission to the Tribunal dated 24 June 2025 the applicant states that he travelled to Australia in November 2019 on a Tourist visa and was granted a Student visa in July 2020 and another one in December 2022. He has completed a number of courses in Australia and in June 2023 he was granted a Subclass 485 visa. The applicant provided to the Tribunal evidence of his course completion. The applicant refers to his employment, in the occupation of cook / chef in regional NSW, stating that his employment is relevant to his study and that he is fulfilling the purpose of the visa. The Tribunal accepts that the applicant is fulfilling the purpose of his stay in Australia as he has completed study in Australia and is engaged in an occupation that is relevant to his study. The Tribunal accepts that the applicant has the support of his employer who has provided written evidence to the Tribunal, and that the employer is willing to sponsor the applicant for a further visa. As for the compelling need to remain in Australia, the applicant told the Tribunal that his niece lives in Melbourne and, traditionally, he has a ‘special status’ with his niece as a maternal uncle. This is addressed more fully below. The applicant also refers to his employment and the contribution he makes to his employer and the community more broadly. However, as the applicant is due to stand trial in early 2026, the Tribunal is of the view that he will not be required to leave Australia before that date, whether or not he has a compelling need to remain in Australia. The extent of compliance with visa conditions There is no evidence of any non-compliance with visa conditions. The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship) The cancellation of the applicant’s visa will have significant repercussions for his ability to seek another visa in the future and to gain permanent residence. (This is discussed more fully under the legal consequences, below). The Tribunal accepts that the limited visa options resulting from the cancellation may cause significant hardship to the applicant.