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 unfair for him to attend the Tribunal hearing, when he cannot give evidence about the charges.
The Tribunal has considered the requests but decided not to postpone the hearing. This is because the Tribunal has formed the view that a lengthy adjournment is not justified in circumstances where the applicant’s criminal proceeding would not be determinative of the issues that arise on review. In this case, the ground for cancellation would arise if it were determined that the applicant’s presence in Australia is or may be a risk to others, rather than due to a conviction for a criminal offence. That is, the focus of s. 116(1)(e) is on assessment of risk, not on the charges or convictions. Thus, the outcome of the criminal proceedings is not determinative and is not required to enable the Tribunal to consider the issues that arise on review.
The applicant appeared before the Tribunal on 24 June 2025 to give evidence and present arguments. At the applicant’s request, the hearing was conducted through electronic means, as the applicant preferred to participate from the office of his representative. The applicant requested, and was granted more time to provide post-hearing submissions. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
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: i) the health, safety or good order of the Australian community or a segment of the Australian community; or ii) 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[1] at [41].
[1] Gong v MIBP [2016] FCCA 561
The words ‘may’ or ‘might’ do not contain different levels of possibility; they relate to different contexts: ‘may’ if the visa holder is in Australia; ‘might’ if he or she were to come into Australia in the future: Djokovic[2] at [37]. The same can be said for the words ‘is’ and ‘would’.
[2] Djokovic v MICMSMA (2022) 289 FCR 21.
There is no definition of ‘risk’ in the Act or Regulations and as such the plain English meaning applies namely the chance of injury, or loss, or hazard.[3] The expression ‘may’ connotes something ‘to be possible'.[4]
[3] See generally, Macquarie Dictionary, revised 3rd edition, 2001.
[4] Macquarie Dictionary, revised 3rd edition, 2001.
If a visa may be cancelled under s 116(1)(e), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply. If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
Does the ground for cancellation exist?
In his written submissions to the Tribunal of 24 June and 21 July 2025 the applicant confirms that he was granted the Subclass 485 visa on 29 June 2023, having previously held Student visas and having completed some courses in Australia. The applicant states that in December 2023 he was arrested and charged with the offences set out below.
- Aggravated sexual assault offender in company with other person
·Person possesses bestiality material
The applicant states that he entered a plea of not guilty and intends to defend himself, with the hearing scheduled in 2026.
In the primary decision, the delegate referred to the Police reports which set out the circumstances of the offending as follows. alleges that on 5 August 2023 the applicant had sexually assaulted the victim, a 38 year old woman, in her home while in the company of a co-accused. It is alleged that the victim was intoxicated and has no memory of how the applicant arrived at her home. It is alleged that the victim’s next memory was being naked in bed with the applicant and the co-accused. The victim alleged she was sexually assaulted by the applicant and felt threatened and scared and asked the perpetrators to stop multiple times but the sexual assault continued.
The primary decision record states that the applicant was taken to Waratah Police station and charged with aggravated sexual assault. At that time the applicant’s phone was examined and during the examination it is alleged that the police located bestiality material, a video stamped 6 April 2022 of a male sexually penetrating a dog.
In his submission dated 21 July 2025 the applicant provided to the Tribunal a copy of the Police Facts Sheet which set out the information consistently with the summary offered by the delegate. In relation to the sexual assault charge, it is alleged that the victim was intoxicated and found herself at home with two unknown men and felt fearful. The victim reported that she had intercourse with the applicant and the co-accused as she felt it was ‘safer’ for her to do so. The Police Facts Sheet refers to various footage of the victim and notes that the victim’s CCTV footage showed the applicant and the co-accused as entering the front door of the victim’s premises around 3 am and leaving her premises the following morning. It is stated that when interviewed by the police, the applicant admitted to going into the victim’s home but denied having sex with the victim or using drugs. The applicant is reported to have claimed that he was drunk and decided to stay on the victim’s sofa as he did not want to drive. It is recorded that upon examination of the applicant’s phone by the police, a video was found depicting a male penetrating a dog and having penile vagina intercourse with the dog.
The Tribunal issued the applicant with a warning against self-incrimination and gave the applicant the opportunity to provide comments in relation to the information in the Police Facts Sheet.
The applicant told the Tribunal in oral evidence that he considers himself not guilty and had pleaded not guilty. The applicant stated that the victim had provided false information. He told the Tribunal that he has not had contact with the victim and does not know her but the applicant refused to answer further questions on this issue. The applicant states that he did not know his co-accused who was a friend of a friend and, prior to August 2023, he met his co-accused only twice for a few minutes at a time. In his declaration of 21 July 2025 the applicant reiterated these claims, stating that he had only met his co-accused a couple of times. The applicant states that he pleaded not guilty and is cooperating with the legal process.
The applicant told the Tribunal that he was imprisoned between December 2023 and 7 February 2024 when he applied for bail and was granted conditional bail. He had not been refused bail previously. In his written submission and declaration of 21 July 2025 the applicant also states that he has been granted bail at the first request and has complied with the conditions of the bail. The applicant states that he has never been charged or convicted of any other offences and he provided to the Tribunal a copy of the Australian police certificate issued in July 2023.
The applicant repeatedly told the Tribunal that he is not a risk to others. The applicant states he has no prior criminal history and he refers to the grant of bail, stating that he has been in the community since March 2024 and has not breached any of his bail conditions. The applicant also refers to the strict bail conditions, which include a curfew and daily reporting which, he claims, prevent or limit the opportunity for any further offending.
The applicant states that he works as a chef and he works with women and there have been no incidents and he is not considered to be a risk to anyone. The applicant states that he also does a lot of work with the Sikh community in Newcastle and has not had any issues at work or otherwise. The Tribunal finds that submission unpersuasive as there is no suggestion that the applicant is indiscriminately engaged in sexual assaults with respect to his co-workers. The fact that there may not have been any reported incidents at his place of work does not exclude the possibility of such incidents occurring.
The applicant claims that he is yet to attend the trial and there has not been any determination of his guilt. However, as noted above, the case law is clear that a determination of guilt is not a necessary precondition for the Tribunal to find that a visa holder may be a risk to the health, safety or good order of the Australian community when considering cancellation under s. 116(1)(e) – eg Gong and Bethell[5]. The Court confirmed in Bethell that it is for the Tribunal to consider whether, on what has been said to have occurred, in and of itself, gives rise to a risk because of the presence of the visa holder. As noted in MZAJA v MIA[6] at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.
[5] Bethell v MHA [2019] FCCA 1740
[6] MZAJA v Minister for Immigration and Anor [2017] FCCA 448
The applicant denies the offending and the Tribunal accepts that the fact of his offending has not been established. However, in the Tribunal’s view, the existence of charges, and in this case, charges relating to a serious offence, is a relevant consideration in determination whether the applicant’s presence in Australia may pose a risk to the safety of others. The Tribunal gives this consideration some weight in finding that the applicant’s presence in Australia ‘may’ pose a risk to others.
The applicant’s evidence to the Tribunal is that he has been granted bail. Section 17(2) of the Bail Act 2013 (NSW) provides that before making a decision whether to grant bail, the authority must assess any ‘bail concerns’ which include an assessment of whether a person would commit a serious offence or endanger the safety of victim, individuals or the community. The applicant has been granted bail but that assessment involved very different considerations. A bail determination is based on whether the person ‘will’ commit a serious offence while the consideration under s 116(1)(e) imposes a much lower threshold of ‘may’ be a risk to others.
The Tribunal has considered whether bail conditions will ameliorate any risk that may be posed by the applicant. The applicant provided to the Tribunal a copy of the bail conditions which require the applicant to report to the police station daily, surrender his passport, not to approach departure points, reside at the specified address and not be absent from premises from 8 pm to 8 am, not to attend a particular area and not to contact his co-accused or witnesses. The bail bond was set at $10,000. While the Tribunal acknowledges that these bail conditions are quite restrictive, they do not preclude the applicant from moving freely in the community (outside of curfew hours) and interacting with members of the community. Given the nature of the charges (sexual assault), the Tribunal is not convinced that these bail conditions will act as a significant deterrent for future reoffending, given the applicant’s ability to move freely in the community and interact with others.
In considering whether the applicant may pose a risk to others, the Tribunal places weight on the fact that the applicant has been charged with a very serious offence of sexual assault in company. The Police Facts Sheet indicates that the applicant was observed on CCTV entering and spending some time at the victim’s home and he was observed as being in the company of the co-accused, which does not seem to support the applicant’s claims that he hardly knows the co-accused and had only very brief interactions with him previously. The Police Facts sheet indicates that the applicant claims to have stayed at the victim’s home but slept on the couch as he did not want to drive while intoxicated.
While it is not for the Tribunal to determine whether the applicant has committed the offence, the Tribunal has found the applicant’s explanation - that he was simply having a rest at the victim’s home as he did not want to drive while intoxicated – utterly implausible given his claim that he did not know the victim and had no prior contact with her. The Tribunal is not convinced that the applicant has been truthful in that explanation and in his description of events. Neither has the applicant offered any meaningful explanation, nor any denial, about the alleged possession of bestiality material on his phone. That in itself is a serious offence which carries a custodial sentence and may be indicative of the applicant’s disregard for the law.
The Tribunal considers that if there is any risk of the applicant committing similar offending in the future, there could be very significant harm to the victims, including physical and psychological harm due to sexual assault.
Having regard to these concerns, the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to segments of the Australian community (such as women). In particular, the Tribunal is of the view that there is a risk that the applicant may engage in sexual offending, which is a very serious type of offending capable of causing harm to others.
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.
The applicant told the Tribunal that his father is old and does not work and his mother has health issues. He states that since his arrival in Australia he has been financially supporting his family overseas. The applicant states that if his visa is cancelled, his parents will not have any financial support as he is the only one able to support them. The Tribunal does not accept that the cancellation of the applicant’s visa will result in financial hardship for his parents, given that the applicant’s visa was due to expire on 29 June 2025 and has expired at the time of this decision. Irrespective of the outcome of this review, the applicant would be required to seek another visa, with permission to work. Notably, his more recent evidence to the Tribunal is that he does not presently hold a visa and he might therefore not have the permission to work if he is an unlawful non-citizen. It is the applicant’s status as an unlawful non-citizen due to the expiry of the visa, rather than the cancellation of the visa, that can cause financial hardship. The Tribunal cannot speculate as to whether the applicant would be granted another visa with permission to work and how long that process might take.
The applicant states that the cancellation of the visa would emotionally affect his parents as he was thinking of a better future in Australia and he planned to apply for the subclass 482, or another, visa. (In his July 2025 written submission the applicant concedes that he cannot apply for the subclass 482 visa but has outlined other visa options.) The Tribunal is unconvinced by the claim that the applicant’s parents would be emotionally affected if his visa is cancelled primarily because there is little evidence before the Tribunal to indicate that the applicant’s parents have a meaningful understanding of the Australian immigration system and that they appreciate the difference between different visa types. If the applicant’s claim is that the cancellation if his visa will preclude his permanent residence in Australia in the future, the Tribunal has formed the view, as noted above, that the applicant’s ability to gain a permanent visa in the future is, at present, completely speculative. It is notable that the setting aside of the present cancellation will not enable the applicant to remain in Australia due to the expiry of his visa and the applicant will need to seek another visa to be able to remain in Australia. It cannot be assumed that any other visa would be granted.
The applicant told the Tribunal that he has been planning a better future and to have a business with his sister and that is not possible if his visa is cancelled. The Tribunal accepts that the applicant will have limited visa options if his visa is cancelled but his ability to remain in Australia and build a better future and work with his sister are dependent on the applicant being granted another substantive visa.
In his submission of 21 July 2025 the applicant states that his employer is willing to support him to apply for a Subclass 407 visa, given the value that he brings to the employer, and that option would only be available to him if the cancellation is set aside. The applicant provided a letter of support from his employer Mr Huang. The Tribunal is mindful that this evidence contradicts the applicant’s oral evidence that he intends to engage in a business with his sister but the Tribunal accepts the applicant’s and his employer’s evidence that there is another visa option available to the applicant that may not be available if his visa remains cancelled. That is, the Tribunal accepts that the cancellation of the visa could cause considerable hardship to the applicant and potentially to his employer due to the future visa limitations and the exclusion period.
As for the hardship to the employer, the Tribunal notes that the applicant is not permitted to work as an unlawful non-citizen and in his submission of 21 July 2025 he confirms that he has not applied for a visa and is an unlawful non-citizen. Thus, if the applicant and his employer do comply with their obligations under the Migration Act, the applicant would cease his employment. (It is not apparent from the employer’s statement of 21 July 2025 that this has occurred.) The applicant’s own evidence is that he is eligible to apply for a Bridging E visa but that process may take time. In these circumstances, the Tribunal does not consider that, at least in the immediate future, it is the cancellation of the visa, rather than the applicant’s status as an unlawful non-citizen, that may cause hardship to the employer.
The applicant also refers to potentially being unable to travel to other countries but there is no evidence before the Tribunal concerning any migration requirements concerning other countries that would preclude the applicant’s entry as a result of the visa cancellation. The Tribunal does not accept that claim.
The applicant refers to the hardship of being unable to contest and manage his criminal matters in Australia, as he notes he cannot apply for a criminal justice visa that must be initiated by the DPP. The Tribunal is not convinced that the applicant will be removed from Australia prior to the commencement of his trial although the Tribunal acknowledges that there is a possibility that the applicant may be detained as an unlawful non-citizen if his visa remains cancelled and if he is not granted another visa. As noted elsewhere, that possibility exists even if the present cancellation is set aside, noting that the applicant will remain as an unlawful non-citizen.
The applicant refers to the presence in Australia of his sister and niece, who are Australian citizens. The applicant states that he has travelled to Australia to support them, has lived with these relatives for a number of years previously and developed extensive family ties. The applicant refers to the support he has provided to the family and his relationship with his niece and states that the close relationship continues despite his relocation. There are before the Tribunal statements from the applicant’s sister, the applicant’s own statement, as well as other evidence concerning their relationship such as photographs and evidence of contact. There is evidence that the applicant’s sister sought to arrange bail for him and to pay a security. The Tribunal is prepared to accept that the applicant has a close relationship with his sister and niece, although the fact that the applicant is able to maintain a meaningful relationship with his family in Australia despite not living in the same household would suggest that he would equally be able to maintain that relationship if he was living in another country.
The applicant also submits that if his visa is cancelled, he will be precluded by the exclusion period from returning to Australia. The Tribunal accepts that this is so. The applicant refers to the different time zones that may hamper his communication with his family in Australia and the Tribunal accepts that communication may be more difficult (but not impossible) if the applicant resides overseas. The Tribunal is mindful, however, that at present the applicant does not have a visa that would enable him to remain in Australia and must apply for another visa. He may or may not be granted one. It is not necessarily the application of the exclusion period that may prevent the applicant’s ability to remain in Australia and to interact with his family here.
The applicant refers to his romantic relationship and claims that he and his partner live together and may be considered as being in a de facto relationship but in his submission of 21 July 2025 the applicant states he does not wish to rely ‘significantly’ on this relationship. Nevertheless, the applicant refers to supporting his girlfriend and claims that this consideration should be given weight. However, the applicant presented very little evidence of the relationship and no evidence from this ‘girlfriend’ to support his assertions. The Tribunal is unwilling to give weight to the applicant’s evidence in the absence of probative evidence of the relationship and the partner’s circumstances.
Overall, the Tribunal accepts that hardship would be caused to the applicant and others if his visa is cancelled.
The circumstances in which ground of cancellation arose.
The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the safety of a segment of the community. The ground for cancellation does not arise because of relationship breakdown.
The circumstances of the alleged offending are set out above and the Tribunal has had regard to the Police Facts Sheet. The Tribunal acknowledges the applicant’s denial of any wrong-doing.
The past and present behaviour of the visa holder towards the Department
Nothing adverse is known about the applicant’s behaviour towards the Department.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140
There are not persons whose visas would, or may be subject to consequential cancellation.
Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal
If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he will be detained indefinitely. The applicant told the Tribunal that he may be granted a Criminal Justice visa to await his trial in 2026 but it is up to the DPP to initiate this process.
If the applicant’s visa is cancelled, there would be restrictions on the applicant’s future visa applications as he would be subject to the exclusion period in PIC 4013 and restrictions imposed by s. 48 of the Act. The applicant also submits that he may be prevented from travelling to other countries but as noted elsewhere, there is no evidence before the Tribunal to support that assertion.
The applicant told the Tribunal that his visa would have expired on 29 June 2025. That is, the applicant would not be a holder of a substantive visa irrespective of the outcome of this review. The applicant told the Tribunal that if his visa is cancelled, he will not be able to apply for other visas and might not be able to work but if his visa is reinstated, he was planning to apply for a Subclass 482 visa. The applicant subsequently informed the Tribunal that he is not entitled to seek that visa but can apply for a subclass 407 visa and his employer has offered support. The Tribunal notes that due to the expiry of the applicant’s visa, the applicant will be an unlawful non-citizen whether or not the present cancellation is set aside. The applicant’s own evidence to the Tribunal is that while he is eligible to apply for Bridging E visa, that might take a long time, given the character considerations, and he may not be granted that visa and be detained. In the Tribunal’s view, the possibility of the applicant remaining an unlawful non-citizen and being detained is not the consequence of the present decision but a consequence of the expiry of his visa and character issues. The Tribunal notes that even if the cancellation is set aside and the applicant applies for another visa onshore, there is no guarantee that he will be granted a Bridging visa in association with that application.
The Tribunal accepts that if the applicant’s visa is cancelled, a legal consequence of that decision is that the applicant may have very limited ability to seek another substantive visa onshore and, conversely, if the visa is not cancelled, the applicant does have the option of seeking another visa. However, the Tribunal does not consider that the possibility of the applicant being detained as an unlawful non-citizen and any hardship arising from such detention and from the uncertainty of visa status, is necessarily a consequence of the cancellation of his visa.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia’s non-refoulement obligations
There is no evidence to indicate, and the applicant does not claim, that Australia’s protection obligations arise in this case. In terms of family unity, the applicant’s ‘girlfriend’, sister and niece live in Australia while his parents remain overseas. The cancellation of the visa need not result in the applicant having to depart Australia immediately while the setting aside of the cancellation does not result in the applicant being able to remain in Australia as a lawful non-citizen. The applicant will have the option of seeking other visas in the future. The Tribunal does not consider that principles of family unity will be breached as a result of the cancellation.
The applicant told the Tribunal that his niece lives in Melbourne and he has a special status as a maternal uncle as they had lived together in the past and they are close. The applicant states that he was invited to come to Australia by his sister to help raise the child, he used to live in the same household and take the child to school and pick her up. The applicant’s evidence is that he lives in Newcastle and when the sister lived in Newcastle, they were very close but his sister’s family have now moved to Melbourne. The applicant states that since his sister moved to Melbourne, they call each other frequently and his sister had visited him many times. The applicant submits that such visits and such a relationship would not be possible if he was to leave Australia as a result of his visa being cancelled.
The applicant provided a number of statements and other material in his submission of 21 July 2025. The Tribunal is prepared to accept that the applicant has a close relationship with his Australian sister and her family, but the Tribunal does not consider that the decision on the present visa would affect the applicant’s ability to interact with his niece. The applicant can continue to speak with his sister and niece whatever visa he holds or if he does not hold a visa at all (even if the present cancellation is set aside). The cancellation of the present visa is unlikely to result in the applicant having to depart Australia as he is likely to remain in Australia to await the trial. The Tribunal is also mindful that the applicant’s parole conditions would prevent him from travelling interstate to visit his sister and niece. Thus, the Tribunal does not accept that the cancellation of the present visa would affect the applicant’s ability to interact with his niece or his relationship with her and it is his own evidence that despite living in different states, they have been able to maintain a close relationship.
In terms of the applicant’s longer term ability to remain in Australia, this will be determined by the applicant’s eligibility to be granted another substantive visa rather than the cancellation of the present visa, which has expired. In the circumstances, the Tribunal does not consider that the cancellation of the visa would adversely affect the best interests of the child.
Any other relevant matters.
The applicant told the Tribunal that his visa would have expired on 29 June 2025. There is nothing in s.116(1)(e) that confines the question of risk to the period of the visa which is the subject of the cancellation. The applicant’s evidence is that irrespective of the outcome of this review, he would remain in Australia to await the outcome of the trial and he may be granted a Criminal Justice visa. Whether or not his visa is reinstated, the applicant will remain in Australia for some time either as a holder of some visa or as an unlawful non-citizen if he is not granted another visa. The assessment of future risk must therefore be based on the fact that the applicant will be able to live in Australia for some time. The Tribunal is mindful that if the applicant is not granted another visa, he is liable to be detained as an unlawful non-citizen and it is possible that the applicant’s immigration detention would reduce the risk to the community.
In his submission to the Tribunal of 24 June 2025 the applicant provided a number of character references. The Tribunal accepts that those who provided these character references believe the applicant to be a good person, although these do not mention the charges laid against the applicant and it is not apparent that the referees are aware of the charges.
The applicant refers to his community work in Australia and states that this work would be affected if his visa is cancelled. The applicant states that if his visa is cancelled, he cannot apply for another visa. The Tribunal accepts that the applicant will not be able to apply for another visa if his visa is cancelled, but also notes that it cannot be assumed he would be granted another visa even if the present visa is reinstated. Thus, the Tribunal does not accept the applicant’s ability to engage in community work would be affected by the cancellation of the present visa, rather than by his ability to meet the requirements for the grant of another visa.
The applicant states that he has a good relationship with a female friend, they have been together for three years and may be thinking of a future together. This friend holds a subclass 485 visa and is able to remain in Australia until 2030. The Tribunal is mindful that the applicant has presented no documentary evidence of that relationship and no evidence from that friend. The Tribunal notes that if the applicant does have a de facto relationship with this person and if she were to gain permanent residence in the future, she could sponsor the applicant for a Partner visa. In the meantime, the applicant’s interactions with that person can continue as the applicant would remain in Australia at least to await the outcome of his trial, irrespective of the outcome of the review.
The applicant provided to the Tribunal a copy of his 2024 Income Tax assessment. The Tribunal accepts that the applicant has paid taxes and the Tribunal accepts evidence of his employment (while noting that the applicant has been an unlawful non-citizen since the cancellation of his visa and does not appear to have held permission to work since that time).
The applicant also refers to his conduct at work, his voluntary activities and his contribution to the community, stating that his activities demonstrate he is not a risk to the community. In the Tribunal’s view, a risk to the community can exist whether or not a person undertakes voluntary activities and contributes to the community.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to others (in particular, women in the community) and that there are grounds for cancelling his visa.
The Tribunal has formed the view that the alleged offending was of very serious nature capable of causing significant harm to others. The circumstances in which the ground for cancellation arose weigh very heavily in favour of the cancellation.

The Tribunal has decided that the cancellation of the applicant’s visa would not be in breach of Australia’s international obligations. These factors are neutral. There is no evidence of any non-compliance with visa conditions and the Tribunal has determined that the applicant is fulfilling the purpose of his stay in Australia. The Tribunal has accepted the applicant’s evidence that he contributes to the community, including through his voluntary activities and employment, and that he has a strong relationship with his family in Australia. These factors weigh against the cancellation.
The Tribunal accepts that the cancellation of the visa could cause considerable hardship to the applicant, particularly as it would effectively preclude him from seeking most other visas in Australia and because of the potentially significantly adverse legal consequences to the decision to cancel. The Tribunal also acknowledges that there is a possibility of the applicant being detained, although that would seem to be a consequence of the applicant no longer having a visa (his visa having expired) rather than of the cancellation of the visa. These factors weigh against the cancellation.
Ultimately, the Tribunal has decided that in the circumstances of this case, the correct and preferable decision is to set aside the cancellation of the applicant’s visa to enable him to make a further visa application in Australia. As the applicant no longer holds a valid visa, the setting aside of the cancellation will not enable the applicant to remain in Australia. Rather, it will enable him to pursue other visa options. Importantly, any future visa application would necessarily involve an assessment of the applicant’s character. Should the applicant commit any further offences, or should he be found guilty of the offences set out above, this will no doubt be relevant to the assessment of the applicant’s character in relation to any future application.
The Tribunal also places some weight on the fact that the cancellation of the applicant’s visa, in present circumstances, is unlikely to result in the applicant having to leave Australia and, as such, will not enhance the aim of protecting the Australian community. This is because the applicant will remain in Australia while awaiting the trial and he has been granted bail. Despite the cancelation of his visa some six months ago, the applicant remains in the community and not in immigration detention, so there is a real likelihood that he will continue to remain in the community even if his visa remains cancelled. In the circumstances where the applicant will be able to remain in Australia and may remain in the community irrespective of the outcome of this review (i.e. where the protection of the community is not enhanced by the cancellation), the Tribunal has decided that the applicant should retain an opportunity of seeking further visas in the future and that the assessment of his conduct should be considered in the context of character considerations in relation to a future visa application.
In the circumstances of this case, the Tribunal has decided to give the greatest weight to the hardship that would be caused to the applicant by the cancellation and the legal consequences of the decision to cancel, which would effectively preclude future visa options onshore. The Tribunal determines that in the circumstances of this case, these considerations outweigh others.
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