Bui (Migration)

Bui (Migration) [2022] AATA 3134 (4 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Tieu My Bui
REPRESENTATIVE:  Mr Mark Edward Northam (MARN: 1175508)
CASE NUMBER:  2114793
HOME AFFAIRS REFERENCE(S):          BCC2021/1308089
MEMBER:James Silva
DATE:4 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 04 August 2022 at 9:41am
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – applicant convicted of criminal offences – studies ceased – applicant’s financial reliance on her mother – limited family ties in Australia – limited detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 189, 359
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; rr 2.12, 2.43
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 13 October 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Hong Kong, born in November 1997. On 23 June 2017, she was granted a Bridging A visa in association with her mother’s application for a partner visa, which included the applicant as a dependant. On 10 August 2021, a delegate of the Minister issued a Notice of Intention to Consider Cancellation (NOICC) of the bridging visa. The applicant provided a response to the NOICC. On 13 October 2021, the delegate cancelled the visa. The applicant seeks review of the delegate’s decision.
The delegate cancelled the visa under s.116(1)(g), following the applicant’s convictions in June 2021 for four criminal offences in New South Wales.
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 27 July 2022 to give evidence and present arguments. She was represented in relation to the review by Mr Mark Northam of Northam Lawyers.
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
Under s 116 of the Act, the Minister may cancel a visa if they are satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g), which requires that a prescribed ground for cancelling a visa applies to the holder (subject to certain qualifications that are not relevant to this case). In the present case, the prescribed ground is regulation 2.43(1)(oa) which refer to the holder having been convicted of an offence (further details are set out below).
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.
Background
The applicant is a 24 year old Hong Kong national, who nominated Cantonese as her first language. The delegate’s decision record and other documents provide relevant background information:
§ She first arrived in Australia on 15 January 2016 (aged 18) on a student (subclass 571) visa, and has been outside Australia since then for only two weeks in July 2016.
§ The applicant’s student visa ceased on 16 March 2018 although earlier, on 19 June 2017, her studies enrolment had been cancelled due to unsatisfactory attendance.
§ On 22 June 2017, the applicant’s mother lodged a Combined Partner (subclass 820/temporary and subclass 801/residence) visa application, which included the applicant as her dependant. The applicant obtained a Bridging A visa in association with the partner visa application. The Bridging A visa came into effect at the cessation of the student visa (March 2018).
§ On 10 August 2021, the Department sent the applicant an NOICC under s.116, on the basis of her conviction for offences in New South Wales.
§ On 17 August 2021, the applicant responded, with a submission from her (former) representative, with several supporting documents including the following:
   A copy of the applicant’s witness statement to the NSW Police, dated 23 February 2021; and a NSW Police Force (DCI Philip Roche) letter of 23 April 2021 to the Magistrate of the Sutherland Local Court, acknowledging that this statement had assisted them in the prosecution of a defendant.
   Sentencing report dated 18 June 2021 from a senior community corrections officer.
   Letter of support from the applicant’s mother Ms Thi Ngo Bui (17 August 2021),
   Statutory declarations by the mother’s friends, Ms Ai Lien Duong and Ms My Dieu Nguyen and Mr Paul Andrew Stewart (all dated 17 August 2021).
   Copy of Department of Education, Skills and Employment record showing the applicant’s enrolment in Senior Secondary (Years 11 and 12), varied on 19 June 2017 due to unsatisfactory attendance; and her enrolment in a Diploma of Graphic Design, varied on 22 September 2021 due to non-payment of fees.
§ On 13 October 2021, the delegate cancelled the visa.
§ The applicant applied for review of the decision on 22 October 2021.
§ A submission dated 27 July 2022 briefly restates the applicant’s case against the cancellation of the visa.
The applicant appeared before the Tribunal on 27 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The hearing was held during the COVID-19 pandemic, and the Tribunal exercised its discretion to hold the hearing by videoconference. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of this matter, the applicant’s preference for a video hearing and the fact that she currently does not hold any visa. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick.
The Tribunal found much of the applicant’s evidence, including about her activities in Australia and her family situation, piecemeal, vague and somewhat changeable. This applies not only to her oral evidence at hearing, but also the submissions made on her behalf during the cancellation process and on review. The Tribunal accepts, and takes into account, that the applicant may have been nervous at hearing. At one point, she said that she felt unwell and needed a break, although she then said that she wished to continue with the hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments, at hearing and during the course of the review as a whole.
The applicant asked the Tribunal to take oral evidence from her mother, three of her mother’s friends (Ms Duong, Ms Nguyen and Mr Stewart) who had provided statements of support, and two of her own friends, Mr Qingyang Li and Mr Kaihao Shen. She submitted brief statements of support from Mr Li and Mr Shen, and copies of their photo IDs. At hearing, she indicated that the witnesses (apart from her mother) would confirm the contents of their statements, which were basically character references. The Tribunal undertook to note and give due weight to these statements. In relation to her mother, the Tribunal tried several times to contact her on two telephone numbers provided, to discuss her statement of support and seek further information about the applicant’s contribution to the family and similar issues. The Tribunal was unable to reach the applicant’s mother.
Following the hearing, the applicant provided a further statement and a copy of a Certificate of Enrolment for an Advanced Diploma of Business course at Colleges Australia International Pty Ltd (Queens College), with course dates 18 October 2021 to 16 October 2022.
The Department and Tribunal files contain some other documents, such as administrative and internal checks. There is also a copy of an article in The Daily Telegraph online edition of 22 June 2021, concerning the applicant’s convictions.[1] These materials do not provide additional relevant information beyond that provided by the applicant and that contained in the delegate’s decision record.
[1] The Daily Telegraph, 22 June 2021: Tien My Bui: cannabis hydro house rented by student with fake ID: (Paywall)
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. It states:
(oa) in the case of a temporary visa holder other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).
In the present case, the applicant was the holder of a Bridging A visa, which is a temporary visa other than subclass 050, 051 and 444 visas. As noted in the delegate’s decision record[2], the applicant was convicted on 22 June 2021 in the Sutherland Local Court of the following offences:
§ ‘Use false document to obtain financial advantage’ (three counts); and
§ ‘Make false document to obtain property’ (one count).
[2] The applicant provided a copy of this record with his application for review.
The applicant does not dispute these facts (although she has made detailed submissions about the circumstances in which they arose); or that the ground for cancellation exists.
The Tribunal finds that the conviction falls within the prescribed ground set out in s.2.43(1)(oa), as a ground for cancellation. It is therefore satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The purpose of travel and stay: The applicant travelled to Australia in January 2016 on a student visa. As noted in the delegate’s decision record, the applicant’s enrolment was cancelled due to non-attendance, and her student visa ceased in March 2018. In June 2017, her mother applied for a partner visa, including the applicant as her dependant.[3] The applicant was granted a Bridging A visa which came into effect on 16 March 2018, after her student visa had ceased.
[3] The applicant was 19 years old at the time. As noted in the delegate’s decision record, prior to the mother’s last arrival in Australia on 20 April 2020, she was mainly resident in Vietnam.
The stated reasons for the applicant’s travel to and stay in Australia have therefore evolved, from an initial temporary entry as a student in early 2016[4] to her inclusion in her mother’s ongoing partner visa application, which is for a combined application for temporary and permanent visas. As noted at hearing, the Tribunal accepts that non-citizens’ purpose for travel and stay in Australia may change over time, and it draws no adverse inferences from the applicant’s subsequent inclusion in her mother’s partner visa application.
[4] As noted in the delegate’s decision record, for one year as stated on her incoming passenger card
Need to remain in Australia: The Tribunal accepts that the applicant needs to remain in Australia while the partner visa application is being processed. There is no suggestion of her removal during that period. The application was lodged more than five years ago, and the applicant did not have any specific updates. Mr Northam thought that the applicant’s Bridging A visa cancellation may have delayed a decision on whether to grant partner visas. The Tribunal has no further insights into the timeframe within which the application will be decided, or the prospect of the applicant being granted a partner visa as her mother’s dependant.
The applicant underscored her need to remain in Australia, for a combination of personal and family reasons.
Personal circumstances: The applicant pointed out in her written and oral submissions that she arrived in Australia at the age of 18; that she has been outside Australia for only two weeks in the past six years; and that she has become accustomed to the way of life here. She told the Tribunal that she also wishes to remain in Australia to be with her family, to study graphic design, and to eventually marry and settle down here.
The Tribunal found it difficult to obtain detailed information about the applicant’s day-to-day activities and commitments. The pre-hearing submission stated that she is not currently studying, However, at hearing, she said that her mother had encouraged and paid for her to enrol in a diploma of business course. She held up a screen with information about the course, but said she did not know the name of the education provider or other details. After the hearing, she provided a copy of a Confirmation-of-Enrolment (CoE) in an advanced diploma of business course at Queens College, commencing 18 October 2021 for one year.
In the post-hearing submission of 1 August 2022, the applicant wrote she had been nervous and confused at hearing when asked about her study commitments. She added that after the Bridging A visa was cancelled, she was not sure whether she was allowed to study. However, Queens College continued to send her emails with course login information and other details (and, by implication, she took up the opportunity to at least enrol). While she preferred to wait for the visa situation (i.e. the bridging visa cancellation) to be sorted, she is now considering participating in the courses.
The Tribunal has minimal information about the applicant’s actual studies to date. The CoE for the Queens College course was issued just days after the Bridging A visa cancellation, and it appears that her mother initiated the enrolment. Although the course ends in October 2022, there is no evidence of the applicant having actually participated in course activities to date. At several points, the applicant emphasised that she had limited knowledge or agency because she defers to her mother, as part of their cultural tradition. The Tribunal is not satisfied that this adequately explains the applicant’s limited knowledge about the course that she claims to be enrolled in, or other aspects of her vague evidence.
The Tribunal also explored the applicant’s other activities and interests in Australia, but was unable to gain much insight beyond that she helps at home and relies on her mother’s financial support. It is concerned that she was selective and guarded about her activities. In these circumstances, the Tribunal places little weight on the enrolment as evidence that the applicant needs to remain in Australia, and has little else to demonstrate such a need.
Family considerations: Throughout the cancellation process and the review, the applicant stressed her wish to remain in Australia for family reasons.
Above all, she emphasised her close relationship with her mother, with whom she lives in Wiley Park. This is obviously linked with the applicant’s inclusion in her mother’s partner visa application, but is also relevant to this review application:
§ The applicant indicated that, as the oldest child, she is obliged to assist her mother. For instance, the response to the NOICC refers to the applicant helping her mother with household chores and in the family-run grocery shop. At hearing, the applicant said that the grocery shop has since closed. However, she helps her mother at home, particularly when her step-siblings visit.
§ At hearing, the applicant said she relies on her mother financially, and that she follows her mother’s guidance, e.g. it was her mother who arranged for her enrolment in a college course following the visa cancellation. The applicant said that her mother draws some income from Hong Kong, but did not have further details (she intimated it would be disrespectful for her to seek this kind of information from her mother),
§ Other statements refer to the mother’s difficult life bringing up eight children, alone. In the post-hearing submission, the applicant pointed to her mother’s limited English, such that she relies on the applicant to help with correspondence, shopping and other practical tasks.
§ As the Tribunal noted at hearing, some of the materials the applicant submitted raised questions about the dynamics of the relationship. For instance, the delegate’s decision record records that, between January 2014 and April 2020, the applicant and her mother mainly lived apart. Her mother visited Australia several times each year for periods of two to five years, spending most of her time in Vietnam (and, according to the applicant at hearing, also Hong Kong). The Tribunal also put to the applicant that the sentencing assessment report states she ‘attributed her offending behaviour to needing money for living expenses’. This raises questions about the extent of her mother’s influence and support, and potentially the applicant’s claimed reliance on her. In reply, the applicant commented that she was not receiving support at that time, adding obliquely that her ‘bad friends’ told her that the criminal activities were not such a big deal.
The applicant claims that other family ties add to her need to remain in Australia.
§ The response to the NOICC refers to the applicant’s three step-siblings in Australia, now aged between 18 and 21. It states that ‘she has been looking after her siblings and cooking for them every day’. At hearing, the applicant said that she has very good relations with these siblings. She said that they are studying, and live together with her and her mother. She thought that they were included in her mother’s partner visa application, but was not sure. Asked whether she looks after them (as stated in the response to the NOICC), she replied that this was not so important now.
In the post-hearing statement, the applicant gave the names and dates of birth of these siblings. She noted that they are adults, and that she is particularly busy with household chores when they come to stay with her and her mother. This suggests that, contrary to the applicant’s evidence at hearing, they do not in fact live with her and her mother.
§ The applicant told the Tribunal that her step-father is a truck driver. She calls him ‘Dad’; he has a Vietnamese name that she could only approximate (she said that she cannot spell it). She said vaguely that, due to work commitments, he is not currently staying with her and her mother. (The Tribunal did not enquire further whether this meant he was temporarily absent on a work assignment, or whether he and the applicant’s mother live separately.)
§ The applicant said that she has another four siblings, aged between nine and 13, living in Hong Kong. She said that they are young, and living with relatives. She commented that she cannot communicate with them.

The Tribunal accepts that the applicant’s mother and three step-siblings live in Sydney. The information about their relationship with the applicant, their activities and the strength of their ties with Australia is limited and somewhat uncertain. It is therefore unclear whether any such family ties give rise to a genuine need for the applicant to remain in Australia.
In sum, the Tribunal accepts that the applicant has grown accustomed to life in Australia since first arriving more than six years ago, and that she has some family ties here. However, her account of her personal and family circumstances included many gaps, and is largely unsubstantiated. She has been particularly vague about her activities in Australia. On the available material, the Tribunal accepts that the applicant has a strong preference to remain in Australia, but is not satisfied that this amounts to a need, or a compelling need.
The Tribunal gives this factor slight weight against cancelling the visa (while noting, however, that the visa cancellation would not directly affect the applicant’s ability to remain in Australia).
The extent of compliance with visa conditions
The Bridging A visa had no conditions attached. This consideration is therefore not relevant.
Circumstances in which the ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The ground for cancellation arises from the applicant’s conviction on 22 June 2021 on three counts of using false documents to obtain financial advantage, and one count of making a false document to obtain property. She was sentenced to 16 months community correction order, commencing on 22 June 2021.
The applicant provided detailed background information in her response to the NOICC and accompanying papers. An article in The Daily Telegraph article[5] provides a succinct summary that is consistent with these documents: ‘A young international student used a fake ID to rent multiple homes across Sydney so a sophisticated drug syndicate could use them to illegally cultivate cannabis […]. [The applicant] pleaded guilty to four counts of using a false document to obtain either a financial advantage or property belonging to someone else […]. [She] made $2000 for every house she rented on behalf of [DTT].’
[5] The Daily Telegraph, 22 June 2021: Tien My Bui: cannabis hydro house rented by student with fake ID: (Paywall) At hearing, the applicant did not seem to be familiar with this article. The Tribunal sent her a copy of the text after the hearing, for transparency. It is of the view that the article does not contain information that falls within s.359A of the Act, as it merely summarises information already submitted by the applicant, and which is not in dispute.
The response to the NOICC included a submission by the applicant’s (former) solicitor Mr Thanh Le Nguyen, and several attachments. These drew attention to the following circumstances (which, they contended, should weigh against cancelling the visa):
§ She was 22 years old at the time, and had no prior offending or conviction. In the words of her former representative, she was ‘an inexperienced young girl’.
§ She had been studying and working, doing household chores and giving Mandarin lessons.
§ The applicant met her co-accused socially[6], and he groomed and manipulated her into cooperating in his criminal endeavours.
§ The offending did not involve violence or sexual acts and, insofar as they related to drug offences, it should be noted that the applicant does not use illicit drugs or drink alcohol.
§ According to the representative, ‘the subjective seriousness of her offences was very low’, and she did not receive a custodial sentence.
[6] The applicant described meeting DTT at a restaurant, as he was the friend of one of her mother’s friends; Ms Jane Wheatley (Senior Community Corrections Officer, Bankstown Community Corrections Office) records him as a ‘family friend’. Ms Ai Lien Duong, Ms My Die Nguyen and Mr Paul Stewart all declared that the applicant met DTT through tutoring him in Mandarin.
During the review, Mr Northam echoed these comments. He noted that the applicant had been a young, inexperienced person who had a somewhat sheltered upbringing, and got involved with the wrong crowd. He emphasised that she had been remorseful and cooperative with the police and other authorities. He also posited, without further details or evidence that she may have been fearful of her controller and the situation she found herself in. He noted that she has since committed herself to study, and to helping her family.
The Tribunal notes nonetheless that the criminal offences of which the applicant was convicted are serious, both in terms of the use of fraudulent documents and the context of the production of illicit drugs; and that she participated in them for financial gain. It notes the comments in the sentencing assessment report that initially she did not know what the houses she rented were being used for, but she continued her activities after realising this. It also notes that she appeared to have no insight into the impact of the offending, and ‘did not think at the time that it was a bad thing to do’. The Tribunal is satisfied that the court took into account her personal circumstances, her cooperation after the arrest and her prospects of rehabilitation, in giving her a non-custodial sentence of 16 months’ community corrections order.
The applicant’s submissions include comments on her subsequent conduct, relevant insofar as they may shed light on the circumstances of the offending as a whole:
§ She pleaded guilty, cooperated with the police and demonstrated remorse. The materials include, for instance, a letter of assistance from the NSW Police (DCI Philip Roche, NWM Regional Enforcement Squad) to the Magistrate of Sutherland Local Court, dated 23 April 2021, outlining that her evidence had strengthened the case against the man who had recruited her.
§ Since the offending, she has continued to study, and to help with household’s chores and in the family’s grocery shop. As noted elsewhere in this decision, however, the applicant has been notably vague about her activities, as she does not appear to have engaged in her studies, and the grocery shop has since closed
§ The Tribunal received submissions relating to the applicant’s character and her risk of re-offending, including written statements from her mother, the applicant’s friends and some of the mother’s friends. (The Tribunal addresses the relevance of the applicant’s future conduct below, under ‘any other relevant factors’.)
Taking all of this information into account, the Tribunal places moderately strong weight on this consideration in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the department
The Tribunal has no adverse information about the applicant’s behaviour towards the Department.
Whether there would be consequential cancellations under s.140
The applicant’s mother has an ongoing partner visa application (which includes the applicant as her dependant, i.e. a member of the family unit), and currently holds a Bridging B visa granted on . As the applicant’s mother does not hold the bridging visa as a result of being a member of the family unit of the applicant, there would be no consequential cancellation under s.140.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the Bridging A visa is cancelled, the applicant would become unlawful, and liable to detention. The Tribunal is satisfied that she will not be removed while the partner visa application is still ongoing.
§ Since the visa cancellation on 13 October 2021, the applicant has been unlawful. At hearing, neither the applicant nor Mr Northam appeared to have checked or taken steps to regularise her visa status.
§ There is no indication that the applicant has engaged with the Department since the visa application, or that the Department has taken any steps to contact or detain her. Mr Northam referred to a partially completed Bridging E visa application form on file, but was not aware of any lodgement.
§ In her statement of 1 August 2022, the applicant advised that she has now in fact lodged a Bridging E visa application.
Bridging E visa: If the Bridging A visa is cancelled and the applicant is detained, she can apply for a Bridging E visa (as she now claims to have done). It appears likely that she would meet the primary criteria for a Bridging E visa, on the basis of the ongoing partner visa application. The Tribunal is unable to speculate as to what conditions might attach to the Bridging E visa, or the applicant’s prospects of being able to satisfy a delegate as to her compliance with the conditions (with or without a security), or meet the other requirements for the visa grant. It notes the applicant’s and Mr Northam’s concern that it may include condition 8207 (No Study) but, given the scant evidence about the applicant’s study activities to date, it is difficult to gauge what impact this condition would in fact have on her.
Based on the available material, the Tribunal considers it unlikely that the Department will detain the applicant under s.189 and subsequently refuse to grant her a bridging visa. Even if this were to occur, detention is likely to be of limited duration, namely until the applicant resolves her migration status (such as a visa grant, relevant application or her departure).
Section 48 statutory bar: Under s 48(1)(b)(ii) of the Act, applicants who have had their visas cancelled since their last entry into Australia may only make a valid visa application for the classes of visas which have been prescribed by reg 2.12 of the Migration Regulations. These include partner, protection and bridging visas, among others. The applicant is included in her mother’s partner visa application, and there is no evidence that she intends to make any other application.
Public Interest Criterion 4013: PIC 4013(2) states that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 [and other sections of the Act] […] (d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(oa) [and other sub-regulations…] applied to the person. PIC 4013(1) states that a person affected by this risk factor can be granted a visa only if the visa application is made more than three years after the visa cancellation; or the visa grant is justified within three years on the basis that the Minister is satisfied there are compelling circumstances that affect the interests of Australia, or compassionate and compelling circumstances that affect the interest of an Australian citizen […]. However, this does not apply to partner visas. As the applicant has no other ongoing visa applications, this is unlikely to be of any practical consequence.
The Tribunal places small weight on this factor against cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)[7]
[7] The Tribunal has decided to first consider the legal consequences of cancellation, as these will play a key role in determining what other financial, psychological, emotional or other hardships may flow from cancellation.
The submission of 17 August 2021 identifies a number of difficulties that the visa cancellation would cause. It claims that the applicant and her family would suffer hardship if she were removed from Australia. It would disrupt her relations with her mother, who had raised eight children without support from her ex-husbands, causing her ‘undeniable physical and emotional trauma’. It would also disrupt her mother’s running of the household and the grocery store, as well as the applicant’s relationship with her step-father and step-siblings. Significantly, however, the Tribunal finds that the visa cancellation would not result in the applicant’s removal from Australia.
The Tribunal finds that the consequence of the visa cancellation would be that the applicant is unlawful, and is liable to be detained; that she does not have permission to work; and that she also does not have access to Medicare and other government services.
However, for the reasons stated above, she would be able to apply for a Bridging E visa to avoid detention and she would not, in any event, be removed while her partner visa application is being processed.
§ The Tribunal accepts that the visa cancellation could lead to the applicant’s detention, and her separation from her mother (and perhaps also her step-father and step-siblings). This would result in some emotional hardship and practical disruption to their lives although, for the reasons stated above, the Tribunal has limited reliable evidence about the applicant’s day-to-day activities and the family dynamics. As such, it is difficult to gauge the extent of any such hardship.
§ Furthermore, as noted above, any detention is likely to be limited in duration, taking into account: (a) that the Department has not detained her to date; (b) she has family members who may be able to offer assurances as to her compliance with conditions of a Bridging E visa, and/or security to act as a financial incentive; and (c) that any period of detention will be subject to review in light of the partner visa application processing, or other migration milestones.
§ The Tribunal accepts that the visa cancellation could result in the applicant holding a Bridging E visa with certain conditions, such as work or study limitations. This would narrow her future options, such as her stated interest in studying graphic design. However, she has indicated that she does not currently undertake any paid work, and there is little evidence of her active participation in studies in recent years. In these circumstances, the Tribunal considers that the applicant’s reliance on a Bridging E visa with such conditions would result in only limited hardship.
Mr Northam also suggested that the visa cancellation could be a ‘bad precedent’, in the sense that it could be taken as a signal of the Tribunal’s view as to the applicant’s character and whether she should be allowed to remain in Australia. He referred in this context to s.501 and the processing of the partner visa application.
The Tribunal takes this to mean that the visa cancellation, and its assessment of the applicant’s circumstances, could set the tone for or influence other decision-making. It accepts that the visa cancellation may cause the applicant some stress, for instance, if she worries about her future migration options. The Tribunal takes this subjective concern into account. However, it notes that the issues in this case are distinct from the character test under s.501, and that it is the applicant’s past offending and conviction, rather than the visa cancellation per se, that will be determinative of future visa options.
The Tribunal places some small weight on this consideration against cancelling the visa.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The cancellation of the applicant’s Bridging A visa will not lead to her removal from Australia while the partner visa application is ongoing, i.e. until it is finally determined.
§ There is therefore no question of her being returned to Hong Kong, in breach of any non-refoulement obligations. In the context of stating why she wished to remain in Australia, she mentioned, for the first time, that she had been subject to bullying at school in Hong Kong; that she left there to escape bad memories; and that she is not happy with the political situation here. The Tribunal is satisfied that she will have the opportunity to raise any such concerns in due course (eg. in any removals proceedings).
§ Similarly, there is no question of the applicant’s removal having an impact on the principle of family unity (while noting that the family dynamics in Australia remain opaque).
There are no children affected by the visa cancellation.
The Tribunal places neutral weight on this factor in considering whether to cancel the visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
As the Bridging A visa is not a permanent visa, this is not a relevant consideration.
Any other relevant matters
The applicant emphasised that she has parted ways with her former associates. She provided character references from her mother, and her and her mother’s friends; as well as the sentencing assessment report and other materials that address her character and the risk of reoffending. The Tribunal considers that compliance with Australian law and community standards are minimum expectations. As such, it places neutral weight on these factors.
Summary
The Tribunal has considered the totality of the applicant’s circumstances. It finds that there are grounds for cancelling the visa because she has been convicted of offences committed while holding a Bridging A visa. These were serious offences involving fraud, committed over a number of months and associated with illicit drug production. Even after allowing for the applicant’s personal circumstances (including her age and claimed inexperience), her subsequent cooperation with the authorities and her family’s and friend’s favourable view of her character, the Tribunal places moderately strong weight on the circumstances in which the cancellation arose, in favour of cancelling the visa.
The visa cancellation has limited direct consequences. It would result in the applicant being unlawful and liable to detention, although she would be eligible for a Bridging E visa if she meets the requirements. The applicant claims that the visa cancellation will cause hardship, for instance, by affecting her options for study and further stay in Australia, by disrupting her relations with her mother and other relatives, and by undermining her prospects of being granted a partner visa as her mother’s dependant. However, these claims tend to equate the visa cancellation, incorrectly, with the applicant’s removal from Australia, and/or the refusal of the partner visa application on character grounds. Moreover, the evidence to support these claimed consequences is limited, vague and of variable quality. Having regard to all the claims and evidence, the Tribunal considers that the factors in favour of cancelling the visa outweigh those against.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
decision
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
James Silva
Member

[2022] AATA 3134

4 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction