Cao and Minister for Immigration and Border Protection (Migration)

[2016] AATA 1050

Cao and Minister for Immigration and Border Protection (Migration) [2016] AATA 1050 (20 December 2016)

Division	GENERAL DIVISION
File Number	2016/5301
Re	Ba Cua Cao
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Egon Fice, Senior Member
Date	20 December 2016
Place	Melbourne

The Tribunal affirms the decision to refuse to grant a Bridging E (Class WE) visa.

[sgd]........................................................................

Egon Fice, Senior Member

IMMIGRATION AND BORDER PROTECTION – application for Bridging E (Class WE) visa refused – failure to satisfy character test – applicant pleaded guilty to a sexually based offence – Indecent Act with Child Under 16 – where serious risk to Australian community if applicant re-offended – where Australian community would expect application to be refused – decision affirmed.

Legislation

Migration Act 1958 ss. 116, 338, 499, 500, 501
Crimes Act 1958 (Vic) s 47
Sentencing Act 1991 (Vic)

Cases

Tesic v Minister for Immigration and Border Protection [2016] FCA 1465

Secondary Materials

Ministerial Declaration no 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)

REASONS FOR DECISION

Egon Fice, Senior Member

20 December 2016

1. Mr Cao is a citizen of the Socialist Republic of Vietnam.  He first arrived in Australia on 23 October 2013 as the holder of a Student (Temporary) (Subclass 574) visa which he was granted as the dependant of his wife, who was studying for a PhD at RMIT University.  That visa was granted on 16 August 2013.  It was due to expire in March 2017.

2. In a letter dated 17 June 2015 the Department of Immigration and Border Protection (the Department) notified Mr Cao that it had come to the Minister’s attention that there appeared to be a ground for cancellation of his 574 visa.  According to that letter, Victoria Police had advised the Department that Mr Cao had been charged with serious criminal offences, consisting of 1 count of Stalking and 4 counts of Indecent Act with child under 16.  The Department sought Mr Cao’s written responses as to why his visa should not be cancelled.

3. On 19 June 2015 Mr Cao’s lawyers, Willocks Lawyers, responded to the letter from the Department.  Willocks Lawyers stated that Mr Cao denied the allegations made against him and that he intended to contest the criminal charges.  The matter was listed for Mention at the Magistrates’ Court in Sunshine on 26 June 2015.  Willocks Lawyers claimed that a decision to immediately cancel Mr Cao’s visa foreshadowed a conviction which they claimed was tenuous at that stage and effectively deprived Mr Cao of natural justice.  Mr Cao’s lawyers also argued that the Department was not in a position to determine whether Mr Cao’s presence in Australia could present a risk to the safety of Australian children without proper and due consideration of all the evidence.  That was not currently available.  Mr Cao’s lawyers also pointed out that the police did not consider his presence in Australia presented a risk to the safety of Australian children because he had been granted bail on his own undertaking and he report to the Richmond Police Station three times a week.  Otherwise, he was free to remain in the community on the condition that he maintain a fixed address, not contact any witnesses or attend any international departure points.

4. In a letter dated 8 July 2015 the Department notified Mr Cao that, having taken into account the comments made on his behalf by Willocks Lawyers, it had decided to cancel his 574 Student visa. The Department referred to s. 116(1)(e) of the Migration Act 1958 (the Migration Act). Relevantly, s. 116 of the Migration Act provides:

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (e)the presence of its holder in Australia is or may be, all would be 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

   …

5. Mr Cao lodged an application with the Tribunal, Migration and Refugee Division (the AAT-MRD) (prior to 1 July 2015 known as the Migration Review Tribunal) seeking a merits review of the decision to cancel his 574 Student visa.  On 5 June 2016 a Member of the MRD affirmed the decision to cancel Mr Cao’s 574 Student visa.

6. On 21 October 2015 Mr Cao pleaded guilty at the Melbourne Magistrates’ Court to 2 counts of Indecent Act with Child under 16.  He was fined $3000.

7. I was informed by Mr D Brown, a solicitor from the Australian Government Solicitor representing the Minister, that Mr Cao had sought judicial review of the decision of the AAT-MRD which affirmed the decision to cancel his 574 Student visa; and had lodged an application with the Federal Circuit Court on 27 June 2016.  I was also informed that the Court had adjourned hearing Mr Cao’s application for judicial review for two weeks so that the Tribunal could hand down its decision on this application before that hearing commenced or was determined.

8. Mr Cao did not apply for a Bridging Visa following the Department’s decision to cancel his Student visa.  Therefore, Mr Cao became an unlawful non-citizen on 8 July 2015.  Mr Cao remained in the community until he was apprehended by officers of the Department some eight months later, on 16 March 2016.  I have more to say about that apprehension below.  After being taken into immigration detention at the Maribyrnong Immigration Detention Centre, Mr Cao made two Bridging Visa applications.  The first was made on 18 March 2016 and the second on 8 July 2016.  Both applications were for a Bridging E (Class WE) General (Subclass 050) Visa.

9. On 22 March 2016 a delegate of the Minister determined that Mr Cao did not satisfy the criteria for the grant of a Bridging Visa.  Mr Cao’s Migration Agent at that time, Mr Tung Bao Ngo, was notified of that decision on 1 April 2016 as was Mr Cao.  Mr Cao sought review of that decision by the AAT-MRD.  In a decision made on 1 April 2016, the Member of the AAT-MRD decided to affirm the decision not to grant Mr Cao a Bridging Visa.

10. On 8 July 2016 Mr Cao lodged his second Bridging Visa application.  Having considered the material before him, on 12 July 2016 a delegate of the Minister determined that Mr Cao did not satisfy the criteria for the grant of a Bridging E (Class WE) Visa.  Mr Cao sought review of that decision by the AAT-MRD.  On 21 July 2016 A Member of the AAT-MRD determined that Mr Cao’s application should be remitted to the Department directing that Mr Cao met the criteria for the issue of a Bridging Visa.

11. In response to the remittal, the Department gave notice to Mr Cao on 12 August 2016 that it was considering whether his Bridging Visa should be refused on the grounds set out in s. 501(1) of the Migration Act. In particular, the Department contended that given his criminal history, he may not pass the character test by virtue of s. 501(6)(e) of the Migration Act. Section 501 relevantly provides:

    (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

    Note: Character test is defined by subsection (6).

    …

    (6) For the purposes of this section, a person does not pass the character test if:

    …

    (e)A court in Australia or a foreign country has:

    (i)     convicted the person of one or more sexually based offences involving a child; or

    (ii)    found the person guilty of such an offence, or found a charge against the person approved for such an offence, even if the person was discharged without a conviction; or

12. Mr Cao engaged the services of Victoria Legal Aid which, on 7 September 2016, made lengthy submissions and enclosed a number of documents supporting its contention that Mr Cao’s application for a Bridging Visa should not be refused and that he should be released from detention into the community. Following consideration of all the material provided on Mr Cao’s behalf and the submissions made by the lawyer from Victoria Legal Aid, a delegate of the Minister determined, on 27 September 2016, that Mr Cao did not pass the character test. The delegate decided to exercise their discretion under s. 501(1) of the Migration Act to refuse his application for a Bridging E (Class WE) visa.

13. On 3 October 2016 Mr Cao lodged with this Tribunal an application for review of the delegate’s decision to refuse to grant Mr Cao a Bridging Visa.  By that time, Mr Cao had been moved to Christmas Island Immigration Detention Centre.

14. The only issue before me is whether the Minister’s discretion to refuse to grant Mr Cao a Bridging Visa on the ground that he did not pass the character test was the preferable decision. A decision made by a delegate of the Minister under s. 501 the Migration Act is reviewable by this Tribunal (s. 500(1)(b)).

15. Because Mr Cao pleaded guilty to 2 charges of Indecent Act With Child Under 16, and hence was convicted of those offences by the Melbourne Magistrates’ Court, there can be no question that he does not pass the character test set out in s. 501(6)(e) of the Migration Act. While I cannot go behind that conviction, I may examine the circumstances which gave rise to the offending conduct, particularly in the context of Direction No. 65 (the Ministerial Direction) made pursuant to s. 499 of the Migration Act. Relevantly, s. 499 provides:

    (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)the performance of those functions; or

    (b)the exercise of those powers.

    …

    (2A) A person or body must comply with the direction under subsection (1).

    DISTINCTION BETWEEN PART 5 – REVIEWABLE DECISIONS AND OTHER DECISIONS REVIEWABLE BY AAT

16. For the sake of clarity, I should provide a brief explanation as to why, despite the AAT-MRD’s decision on the second Bridging Visa application made by Mr Cao that he was eligible for the issue of that visa, the Minister’s delegate has nevertheless refused to issue the second Bridging Visa.

17. Prior to the amalgamation of the AAT and the Migration Review Tribunal (MRT) which came into effect on 1 July 2015, Part 5 of the Migration Act provided for review of decisions by the MRT. Those decisions reviewable by the MRT were referred to as MRT-reviewable decisions. Those decisions reviewable by the MRT were set out in s. 338 of the Migration Act. Included amongst the decisions reviewable by the MRT was a decision to cancel a visa held by a non-citizen who was in the migration zone at the time of cancellation unless that decision was made under s. 501 of the Migration Act; and a decision refuse to grant a Bridging Visa to a non-citizen who was in immigration detention because of the refusal. MRT-reviewable decisions did not include decisions made on character grounds, that is, refusals to grant visas where the applicant did not pass the character test. Such decisions of course fall under s. 501(1) of the Migration Act.

18. Following amalgamation of the tribunals commencing on 1 July 2015, the distinction between the decisions reviewable by the MRD of the AAT (AAT-MRD), and the General Division of the AAT (AAT-GD) remained, with some minor amendments.  A Part 5-reviewable decision continued to include a decision to cancel a visa held by a non-citizen who was in the migration zone at the time of cancellation; and a decision to refuse to grant a Bridging Visa to a non-citizen who was in immigration detention because of the refusal. A decision to refuse to grant a visa, including a Bridging Visa, on the ground that the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test is only reviewable by AAT-GD. That power is found under s. 500(1) of the Migration Act.

19. The reason I have offered the above explanation is because, in the written submissions made on behalf of Mr Cao by his current lawyers, Carina Ford Immigration Lawyers, it was contended:

    The Department appears to be seeking to have a ‘second bite at the cherry’ following the AAT decision on 21 July 2016 remitting the initial Bridging Visa Refusal decision.

20. With respect to the lawyer or lawyers who drafted those submissions, that contention is not an accurate account of what happened.  The issues dealt with by the AAT-MRD involved whether, at the time he held his student visa, he had breached any conditions attached to that visa.  In particular, the Tribunal was concerned with whether Mr Cao had in fact been paid for work he was doing at the restaurant where he was located at the time by immigration compliance officers who apprehended him.  It was aware of the charges which were brought against him in relation to indecent conduct with a child under 16 but was only concerned to impose a condition that he not engage in criminal conduct while holding a Bridging Visa.  It had nothing to do with the character test.

21. The AAT-MRD also expressed concern about the fact that Mr Cao attempted to run away when approached by immigration compliance officers, his student visa having been cancelled.  Mr Cao insisted that he was simply attempting to contact his lawyer, whose office was about 100 m from the restaurant.  Mr Cao explained that his daughter now had a visa and was coming to Australia to attend school so there was no reason for him to run away.  He said he would not engage in remunerated work because he had come to Australia to look after his wife and daughter.  His wife was unwell and he was concerned about her safety and well-being, given, he said, there were many drug addicts in the area where she lived.

22. The MRD concluded that it had formed the view that Mr Cao was genuinely remorseful for any breaches he had committed of the migration law and regulations.  He now had a clearer understanding of his obligations and would comply.  The Tribunal also concluded that it could not dismiss Mr Cao’s claim that there had been misunderstandings regarding his employment while not holding a visa.  It accepted his claim that he relied on his migration agent’s advice and believed that he was permitted to work on the terms he was doing so.  The Tribunal also accepted Mr Cao’s explanation of why he sought to run away when approached by immigration compliance officers.  Essentially, the Tribunal was satisfied that Mr Cao would abide by Condition 8101 which prohibits him from working in Australia.  It was also satisfied that he would abide by Condition 8207 which prohibits him from engaging in any studies or training in Australia.  The Tribunal concluded that Mr Cao would reside at the address he had provided previously and that he would report at a time or place specified by the Minister for that purpose as required by Condition 8401.  Finally, regarding his convictions, the Tribunal was satisfied that he would abide by condition 8564 which prohibits the applicant from engaging in criminal activity.

23. It should be readily apparent that the decision made by the AAT-MRD was not based on character grounds which, although there may be some overlap, particularly regarding the risk of reoffending, are significantly different to those matters which must be considered when examining a refusal to grant a visa on character grounds.  A refusal to grant a visa, including a Bridging Visa, on character grounds is a very different matter.

    THE NATURE OF MR CAO’S OFFENDING

24. Initially, Mr Cao was charged with five sexual offences involving a child under 16 years of age.  Those five charges were stated as:

    1 The accused at Sunshine on 24/03/2015 did wilfully commit an indecent act namely kissing with a child under the age of 16 years to whom he was not married.

    2The accused at Sunshine on 24/03/2015 did wilfully commit an indecent act namely taking hold of the victim’s breasts with a child under the age of 16 years to whom he was not married.

    3The accused at Sunshine on 24/03/2015 did wilfully commit an indecent act namely putting his hand up the victim’s skirt with a child under the age of 16 years to whom he was not married.

    4The accused at Sunshine on 24/03/2015 did wilfully commit an indecent act namely rubbing his penis against the victim’s body with a child under the age of 16 years to whom he was not married.

    5The accused at Sunshine on 24/03/2015 did stalk another person namely [redacted] in that the accused did act in any other way that could reasonably be expected to arouse apprehension or fear in the victim for their own safety or that of any other person.

25. Mr Cao pleaded guilty to 2 charges of Indecent Act with Child Under 16 and he was fined $3000. At the time of offending Mr Cao was 33 years of age. This conviction was recorded by the Melbourne Magistrates’ Court but there are no sentencing remarks from the Magistrate who dealt with this matter. Section 47 of the Crimes Act 1958 (Vic) provides the following:

    (1)   A person must not wilfully commit, or wilfully be in any way a party to the commission of, an indecent act with or in the presence of a child under the age of 16.

    Penalty: Level 5 imprisonment (10 years maximum).

    …

26. Following completion of the hearing, solicitors for Mr Cao emailed to the Tribunal the Charge-Sheet regarding the five charges which were brought against him.  Also included with those documents were details of the order made by the Magistrates’ Court in respect of each of those charges.  According to Mr D Nikolic, the solicitor who appeared on behalf Mr Cao, those documents should be accepted into evidence particularly given that Mr Cao had, throughout his oral evidence, referred to the offending as kissing and hugging.  In fact Mr Nikolic referred to Mr Cao’s description of the evidence as kissing and touching/hugging.  With respect to Mr Nikolic, my notes indicate that the only expression used by Mr Cao throughout his evidence was kissing and hugging. There was no reference to touching.

27. I have accepted those documents into evidence as supplementary G-documents.

28. The documents from the Magistrates’ Court refer only to the offending on each charge as Indecent Act With Child Under 16.  The particulars of the offending are not stated as they are described on the Charge-Sheet.  Those documents referred to charges 3, 4 and 5 as having been struckout-withdrawn.  As I understood Mr Nikolic’s submission, he contended that because the three charges were withdrawn and as a consequence, were dealt with as having been struck out, I should not have regard to the particulars of the offending given in respect of those charges.  He referred me to the decision of Collier J in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465.

29. Mr Tesic was convicted of trafficking in dangerous drugs and sentenced to 7 years in prison. While in prison the Minister informed him that his visa was cancelled pursuant to s. 501(3A) of the Migration Act. That decision was taken by the Minister himself, and not a delegate. Section 501(3A) of the Migration Act provides that the Minister must cancel a visa in circumstances where the person does not pass the character test because they have, amongst other things, a substantial criminal record. Mr Tesic provided written representations as to why the Minister should revoke his cancellation decision. The Minister determined that the cancellation decision should not be revoked. In giving reasons for arriving at that decision, the Minister said that he took into account Mr Tesic’s 20 year history of illicit drug use and his lengthy history of relatively frequent offending between 1993 and 2010, which was not limited to drug-related offending. Apparently, the Minister also took into account evidence that Mr Tesic continued to traffick in drugs after ceasing his personal use of drugs in February 2010 despite his denial and there being no evidence that he did so.

1. Collier J concluded that the sentencing comments of the trial judge did not unequivocally support the proposition that Mr Tesic had continued to traffic drugs after February 2010 and that Mr Tesic was charged with, and pleaded guilty to, multiple counts over a period of time ending at March 2010 [84]. Her Honour agreed with the following submission from counsel acting for Mr Tesic:

   In a plea of guilty, a person is not going to quibble with things like dates when one is seeking to have the favourable matter of a plea in cooperation with the system of justice.  So it can’t be at law that a plea of guilty to a charge, with those broad dates, is an admission of proof that he was trading after that date.  It either has to be alleged that he was-through multiple counts that he was doing that, and which there wasn’t, and so that’s essentially what it comes down to, that – and there was an error as you obviously see where a submission was made that it was thought that he might have continued, but that turned out not to be the case.

2. While the Minister submitted that if there was an error in respect of when Mr Tesic ceased drug-trafficking, it was nevertheless open to the Minister to reach that view, the error was potentially of fact and not of law.  Her Honour disagreed, stating at [87]:

   In my view the time at which Mr Tesic ceased drug-trafficking, referable to his cessation of personal drug use, was an aspect of his criminal history, and a relevant factor potentially influencing the Minister as to his character, the likelihood of his rehabilitation, the risk of his re-offending, and the overall risky pose to the Australian community.

3. The Tesic case was of course an application for judicial review, quite different to a merits review by the Tribunal.  Nevertheless, I accept it may have implications for a decision made by the Tribunal as it is understood that, on a merits review which is in effect a de novo hearing, the Tribunal stands in the shoes of the Minister or his or her delegate when making that decision.  However, unlike Mr Tesic’s case, I had in evidence the closed circuit television (CCTV) footage which shows the entire incident in question as well as a statement made by the victim to the police immediately after the offending took place.  While I readily accept that the Tribunal cannot go behind a judgement handed down by the Court, it certainly can examine the circumstances in which the offences, of which Mr Cao was convicted, occurred, particularly as the seriousness of the offending is a factor which the Tribunal must consider in coming to the preferable decision.  The sentence handed down by the Court is of course an indicator of the seriousness of the offending, and adverse circumstances giving rise to the offending are usually taken into account.

4. Mr Nikolic submitted that Mr Cao’s offending, while serious, was very much at the lower end of the spectrum given that no term of imprisonment was imposed on Mr Cao but rather, he was fined $3000.  While it is not my role to question the sentence imposed, I simply note that the penalty stated for the offence of an indecent act with or in the presence of a child under the age of 16 is said to be Level 5 imprisonment (10 years maximum).  However, the Sentencing Act 1991 (Vic) makes it clear that there are many factors which are taken into account when sentencing, including the circumstances of the case, entering a plea of guilty or the presence of any other mitigating or aggravating factors.

5. In the course of the hearing, I queried the parties about why three of the five charges brought against Mr Cao had been withdrawn.  Mr Brown told me that the victim had again gone missing.  I had in evidence a report from Channel 9 News describing the victim as having been last seen on 6 March 2015.  She was described as a missing person.  Mr Cao had given a copy of that report which included a photograph of the victim to the Minister.  That report is in fact dated 10 March 2015 although that does not appear on the copy of the document provided by Mr Cao.  However, given that the offending took place on 24 March 2015 and the victim was plainly in a school uniform, I accept Mr Brown’s statement that she had again gone missing.  That of course explains the withdrawal of the charges given that the police were unable to locate the victim for the purposes of Mr Cao’s trial in the Magistrates’ Court.  Without her evidence regarding the incident, a conviction would have been extraordinarily difficult.  That is despite the fact that there was a statement from the victim which was recorded shortly after the incident took place.

6. In a written statement made on 7 September 2016 Mr Cao described the incident in the following way:

   One day in March 2015 [24 March 2015] I was going to the bus stop to go home.  I saw from the schedule that it would depart in 30 minutes.  During this wait, I met a girl.

   She smiled at me and I wanted to improve English so I talked to her.  I asked her: “how old are you?”  She said: “I am 18 years old”.  She had a lot of make up on. While we were waiting she met four people and she hugged and kissed all of them.

   I asked her what she was doing there and she said she was waiting for someone.  She asked me what I did and we talked for a while.

   She was friendly to me.  I only hugged her because she hugged me first, she was a friend and she even gave me her number.

   I think the Australian people are friendly and open minded.  When girls are friends with boys they kiss each other and say good bye and leave.  I was accused of kissing and hugging the girl, but I did not know she was under 16 years, because she said she was 18.

   She lied to me about being over 18 so that I felt comfortable to continue chatting and behave in a mature way towards her.  I kissed her and she voluntarily kissed me.  I did not force her to kiss me.  It was a minor mistake without intention to break the law on my part.

7. I had in evidence CCTV footage which discloses the course of events quite clearly.  They took place after 9 p.m. on 24 March 2015.  Initially, the victim together with a male person appears, walking past the bus stop shelters where the offence eventually took place.  The victim is clearly small in stature and although wearing a jacket with a hood, her dress is readily identifiable as part of a school uniform.  There are two other young male persons standing near the bus shelter, one of which is plainly known to her.  She goes up to that person and greets the person with a kiss on the cheek.  Those four persons then stand around apparently waiting for a bus to arrive. 

8. Shortly thereafter, another group of young people arrive and she greets one of those young persons with a kiss on the cheek and a hug.  She then gives another one of those young persons a brief hug.  The group then walks out of camera shot, disappearing behind the bus shelter.  At this stage, Mr Cao is not in view and not obviously present around the bus shelters in question.

9. Between 5 and 10 minutes later, Mr Cao first appears walking towards a crosswalk area at right angles while talking on a mobile telephone.  The victim is not in view at that time.  As Mr Cao is about to cross into the crosswalk area at right angles, the victim appears on the other side of the road walking towards the crosswalk.  Mr Cao appears to end his telephone conversation while walking across the crosswalk at right angles while the victim commences to cross the road on the crosswalk a short distance behind him.  Mr Cao does not appear to have seen the victim at this stage.  As the victim walks across the crosswalk Mr Cao turns his head to the left, noticing her come towards him but behind.  Mr Cao is watching the victim as she walks across the crosswalk, having himself slowed down to look at her.  As the victim passes behind him, Mr Cao turns to the right and changes direction moving in the same direction as the victim.  There is no obvious verbal exchange between the two as the victim walks past Mr Cao on his right side but Mr Cao continues to turn to his right and watches her pass by going to where toilets are located.  Mr Cao then walks behind her off to her left also heading for the toilets.  The victim does not look back at him or acknowledge his presence.  Mr Cao watches her go into the toilet and he appears to go to the male toilets which are situated to the left.

10. A short time later the victim reappears from the toilet and commences crossing the road back towards the bus shelters.  As the victim reaches the other side of the road heading towards a bus shelter Mr Cao reappears from the toilet entrance and appears, at first, to turn towards the right away from the bus shelter.  He then turns his head towards the left and notices the victim about to enter the bus shelter.  Mr Cao watches her apparently reading a bus timetable and although looking away from her to his right side, he begins to cross the road on the crosswalk heading towards the bus shelter.  The victim, by this time, has taken a seat on the bus shelter.  Mr Cao looks both left and right, as if to see who else is around and as he walks up to the bus shelter he appears to make verbal contact with the victim.  Mr Cao again appears to look in the direction of the camera as if looking to see if other persons might be about before walking up to the bus shelter and sitting down beside the victim.

11. A short time afterwards, it is obvious that Mr Cao has physical contact with the victim but there is no obvious sign of the victim being a wilful participant in that contact.  After a short time Mr Cao stands up, turning towards the victim and leaning towards her.  There is plainly physical contact between the two, and when he stands up again it is clear that his right hand was down at the lower part of the victim’s body.  Mr Cao gets up again standing in front of the victim but then sits down again.  He then gets up again and plainly is using his right hand to touch the body of the victim.  He then turns around facing her directly with his left hand on her shoulder and, while standing, leans forward to place his head on the left side of the victim’s head.  Mr Cao appears to have his left arm draped around the back of the victim’s head and appears to be restraining her. 

12. The victim then appears to turn to her left and stand up.  She attempts to move forward out of the bus shelter but is restrained by Mr Cao, who pushes her back, standing in front of her with her back against the back wall of the bus shelter.  With the victim pinned against the back wall of the bus shelter, Mr Cao’s left arm moves down and obviously makes contact with the lower part of her body.  The contact appears clearly to be sexual.  Mr Cao ceases that activity as a bus drives past the bus shelter.  However he commences again when the bus passes.  Throughout this activity, the victim appears motionless.  Eventually she turns away to her left again and attempts to walk out of the bus shelter and it is clear that Mr Cao has both arms around her shoulders and appears to be restraining her.  Although she attempts to walk away he walks in front of her and pushes her back towards the bus shelter again.  In fact he pushes her back into the bus shelter and recommences the activity he was previously engaged in.  Mr Cao’s hands are obviously in the lower region of his own body and her body and the contact can only be described as sexual.  It is sufficiently clear from the video that he is removing part of her clothing.  There is no evidence whatsoever of active participation by the victim.  Eventually, Mr Cao allows the victim to move from the bus shelter out onto the footpath where he can be seen to be readjusting his clothing.  At that point two other persons appear in the picture walking towards Mr Cao and the victim.

13. The victim and Mr Cao then appeared to engage in a discussion on the footpath in front of the bus shelter and the victim appears to point to an oncoming bus, perhaps indicating that was the bus she was waiting for.  As the victim walks towards the bus, Mr Cao places his left arm around the victim and leads her back towards the bus shelter.  In fact they walked behind the bus shelter and disappear from view. 

14. Another CCTV camera records Mr Cao and the victim walking towards the bus which the victim had pointed to.  Mr Cao is following the victim.  On getting into the bus, the victim appears to speak to the driver while Mr Cao stands on the doorstep.  The driver appears to talk to Mr Cao briefly before disembarking from the bus.  Mr Cao proceeds to enter the bus and the CCTV on-board the bus shows him taking a seat in the same row as the victim but on the other side of the aisle.  Shortly thereafter, two Protective Service Officers arrive and have a discussion with the bus driver.  The bus driver re-enters the bus and opens the midsection doors to where the Protective Service Officers have moved.  The victim then alights from the bus followed by Mr Cao.  They are then interrogated individually by those officers.  At one point Mr Cao walks away from the officer interrogating him and attempts to go over to the victim to speak with her.  The Protective Service Officer moves towards him and brings him back away from the victim.  The bus moves off while the Protective Service Officers continue to talk to both Mr Cao and the victim.  Shortly thereafter the police arrive.

15. I had in evidence a number of documents produced by the Minister’s representatives pursuant to s. 501G of the Migration Act (G documents). They included the transcript of an interview with the victim conducted by Victoria Police at 2 minutes past 12 a.m. on 25 March 2015; a statement prepared by one of the police officers who had been notified of the incident and attended the scene at Sunshine railway station; a statement from each of the Protective Service Officers who attended the incident following notification by the bus driver; and a witness statement from the bus driver.

16. The transcript of the interview with the victim accurately describes the conduct of Mr Cao which I observed when viewing the CCTV footage.  While it is not possible to see the express detail described by the victim of the offending sexual contact made by Mr Cao, the actions of Mr Cao, including the positioning of his hands and arms and the obvious interference with clothing of the victim, throughout the incident are entirely consistent with her description of the events.  In the course of the hearing, Mr Cao was shown the CCTV footage but continued to maintain that his conduct was restricted to hugging and kissing the victim.  It plainly was not.

17. Despite the CCTV footage showing that Mr Cao made the contact with the victim rather than her initiating the contact, he continued to maintain that he did not follow her into the bus shelter.  His explanation was that he was looking at the bus timetable and then saw the victim.  That evidence was plainly false.  As I have described above, his conduct was clearly predatory and targeted the young girl.  To begin with, he was walking away from the area where the toilets are situated when he first noticed the victim.  When he saw her go into the toilet he turned and went into the male toilet.  After she came out of the female toilets and had crossed the road towards the bus shelter, he came out of the male toilet and initially turned to the right apparently searching for her.  When he saw her, he turned left and followed her to the bus shelter.

    THE EXERCISE OF DISCRETION

18. Failure to pass the character test as set out in section 501(6) of the Migration Act does not result automatically in a visa refusal or cancellation. I am required to consider the Ministerial Direction and to apply the relevant considerations in determining what should be the preferable decision in each case.

19. Clause 6.1 of the Ministerial Direction sets out the objectives of the Migration Act. Relevantly, it includes:

    (2) Under subsection 501 (1) of the Act, a non-citizen may be refused a visa if the noncitizen does not satisfy the decision-maker that they pass the character test.…  Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

    …

    (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a noncitizen who does not satisfy the decision-maker that the noncitizen passes the character test… Under section 499 (2A) of the Act, such decision-makers must comply with the direction made under section 499.

20. Clause 6.3 of the Ministerial Direction sets out the principles which apply to the exercise of discretion.  Those relevant to Mr Cao’s case include:

    (1)   Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)   The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)   A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.

    …

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time.…

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

21. Clause 7 and 8 of the Ministerial Direction provide guidance when exercising the discretion.  Relevantly, clause 7 provides:

    (1)  Informed by the principles in paragraph 6.3 above, a decision-maker:

    (a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or…

22. Clause 8 relevantly provides:

    (1)  Decision-makers must take into account the primary and other considerations relevant to the individual case.…

    (2)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)  Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.

    (4)  Primary considerations should generally be given greater weight than other considerations.

    (5)  One or more primary considerations may outweigh other primary considerations.

23. Part B of the Ministerial Direction applies to Mr Cao’s case.  It deals with decisions to refuse a non-citizen’s visa.  The primary considerations are set out in clause 11 of the Ministerial Direction which provides:

    (1)In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian Community.

1. Only the primary considerations set out in (a) and (c) are relevant to Mr Cao’s case.  Although Mr Cao’s daughter has been granted a visa to come to Australia and study, she is not in Australia at present, nor was she in Australia at the time the decision was made to refuse to grant a Bridging Visa to Mr Cao. Both parties have agreed that this is not a primary consideration in this case.  However, it may be a relevant other consideration which I will consider presently.

   PROTECTION OF THE AUSTRALIAN COMMUNITY

2. Clause 11.1 of the Ministerial Direction refers to the principles to which I have referred above regarding the protection of the Australian community from harm as result of criminal activity or serious conduct by non-citizens.  It also states that there is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.  I should also give consideration to:

   (a)the nature and seriousness of the non-citizen’s conduct to date; and

   (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   The nature and seriousness of the conduct

3. The relevant matters to which I must have regard in this case are the following set out in clause 11.1.1 of the Ministerial Direction:

   (a)… violent and/or sexual crimes are viewed seriously;

   (b)… Crimes committed against vulnerable members of the community (such as minors…)… are serious; or the

   …

   (e) The sentence imposed by the courts for a crime or crime;

   (f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   …

4. I have serious concerns about the way in which Mr Cao described this event.  He continually referred to his actions as “hugging and kissing”.  Plainly, from the description I have given which was taken from the CCTV footage, the incident involved significantly more than mere hugging and kissing.  There was plainly sexual contact initiated by Mr Cao.  Furthermore, despite what Mr Cao said about the victim’s response, throughout the incident, there was no sign whatsoever of the victim either initiating or responding to his advances.

5. Although Mr Cao said that the victim smiled at him and, because he wanted to improve his English skills, he talked to her, the CCTV shows something quite different.  Arguably, it shows clear predatory conduct on behalf of Mr Cao in establishing contact with the victim.  On discovering her walking into the bus shelter by herself, and checking to see that there were very few people within the near vicinity of the bus shelter, it was he who initiated the first contact with the victim.

6. There is also another serious anomaly in Mr Cao’s statement regarding the event.  Mr Cao said that while he and the victim were waiting (for what is not explained), the victim met four people and hugged and kissed all of them.  Her meeting with young people, who were obviously acquainted with her, occurred a considerable time before Mr Cao made contact with the victim.  The CCTV footage which I had in evidence does not disclose Mr Cao appearing in the area where all of these events took place until after the group of persons known to the victim had left.  Therefore, the only conclusion I can draw is that Mr Cao has observed the CCTV footage before making his statement.  Otherwise, there is no logical way in which he could have observed the victim’s behaviour before he appears to arrive at the scene where the incident took place.  In any event, his explanation that kissing and hugging was a perfectly normal way that persons express themselves with friends, takes the contact with other people completely out of context.  He was 33 years of age, she was 12 years of age and they were complete strangers.

7. Mr Cao gave no explanation for why he said he asked the girl how old she was.  He also described her as having a lot of make up on.  Her diminutive size and the fact that she was wearing a dress which appeared to be part of the school uniform should have given him a very clear indication that she was a young schoolgirl and not an adult.

8. Mr Cao also said that he only hugged the victim because she hugged him first, she was a friend and she even gave him her (telephone) number.  The CCTV footage does not disclose any evidence of the victim actively participating in the contact with Mr Cao.  He had never met her before so his description of her as a friend is plainly fictitious.  He then described the event as a talk and a kiss goodbye.  Once again, that description is plainly false.  In his written statement, Mr Cao also said that if he had known the victim’s age, he would never have done what he did.  The obvious problem with that statement is that his conduct, even with a person over the age of 18, could have constituted a criminal act.  There was no evidence of the victim consenting to the contact.  Mr Cao also described touching the victim on the outside of her shirt.  That is not what the CCTV footage discloses.

9. One of the police officers who attended the Sunshine railway station following the incident made a witness statement which was taken into evidence.  The police officer referred to the Senior Constable who was with her on Crime Response duties that day and who had later interviewed Mr Cao.  He had given his address to that police officer as a particular street in Richmond as his current place of residence.  However, when enquiries were made by the police to verify the address, it was revealed that the address given by Mr Cao was the address at which he had lived at some months prior to his arrest but he no longer resided there.  After enquiries were made with Mr Cao’s wife, the address was confirmed as different to that given by Mr Cao to the police.  Plainly, as is evident from a number of statements made by Mr Cao, he is prone to being untruthful and deliberately so.

   Risk to the Australian community should Mr Cao reoffend

10. There are a number of matters which give me grave concern should Mr Cao be allowed to remain in Australia.  I am very concerned that Mr Cao appears almost incapable of telling the truth.  His account of the incident on the night of 24 March 2015 is plainly a dishonest account of what in fact occurred.  The CCTV footage bears testimony to that.  In fact, the footage reveals that Mr Cao deliberately targeted the victim before making contact.  That is highly disturbing evidence which gives me no confidence at all that Mr Cao will not re-offend.  The contact with the victim was plainly not consensual nor did she initiate the contact.  Relying on the fact that he pleaded guilty to only the first two charges and that the remaining three charges were withdrawn, Mr Cao has made every attempt to minimise the seriousness of his conduct.  While I accept that the conviction refers only to the first two charges, nevertheless, they involved an indecent act with a minor under the age of 16 years.  Furthermore, the circumstances in which the conduct occurred and of which he was convicted were far more serious than he described, that is, hugging and kissing the girl.

11. Even more disturbing were Mr Cao’s numerous statements which sought to lay blame squarely on the victim.  Mr Cao had obviously obtained information from the victim’s Facebook site and the Channel 9 News article regarding her being a missing person.  In the course of his oral examination, Mr Cao attempted to make out that he recognised the victim as the missing girl prior to initiating contact. There was nothing in the immediate statements made by either the victim or Mr Cao which so much suggested that to be the case.  This also appears to be a fabrication made after the event.  In addition to that, in his evidence to the AAT–MRD regarding the decision to cancel his student visa), Mr Cao told the Tribunal that the victim was a bad person.  That claim was repeated by Mr Cao in his evidence at the hearing of this matter.  He also said that the victim was involved in a drug cartel and referred to the victim as having red eyes and therefore plainly using drugs.  Not only was there no evidence of that allegation before the AAT–MRD or on the hearing of this matter, Mr Cao persisted with that statement at the hearing before this Tribunal.  He also told the AAT–MRD that there were sexual images on the victim’s Facebook page and that she had checked into the Crown Hotel.  He then told that Tribunal that to have the money for that, she must be involved in a criminal organisation.

12. According to the AAT–MRD, Mr Cao’s evidence was that he did not do the wrong thing because he believed the victim was 18 years of age.  He apparently denied that he did acts that he was subsequently found guilty of by the Magistrate’s Court.  In one statement he apparently said he was just talking to the victim and then in a later statement he said that the victim told him she was over 18 years of age and that he kissed her and touched her breasts.  He then said this was a minor offence and a minor mistake, evidenced by the penalty which was a fine of $3000.

13. In my opinion, the offending by Mr Cao is very serious in nature, particularly as the victim was a 12-year-old girl.  I cannot say that there is no real risk that Mr Cao will not, if allowed to remain in Australia, offend again.  In fact, I find that the risk of Mr Cao reoffending is reasonably high, particularly given the way in which he has attempted to justify his conduct in this case.  To him, the entire event was simply about kissing and hugging and not knowing that the person was under 18 years of age.  Plainly, the conduct to which he pleaded guilty was a serious sexual offence.  His attempts to blame the victim as being a bad person and involved with drugs were unfounded and simply attempts to minimise the seriousness of his offending.  There was no evidence that Mr Cao was at all remorseful.  I find that the risk of Mr Cao reoffending, particularly against a minor, remains real and is not insignificant.

14. I should also consider the fact that after Mr Cao’s student visa was cancelled on 8 July 2015, he did not report to the Department but remained in the community for a period of some eight months as an unlawful non-citizen before he was located by compliance officers in March 2016.  While I have noted that the letter dated 8 July 2015 informing Mr Cao of his visa cancellation was sent to his former address in Richmond, that letter also states that on 17 June 2015 Mr Cao was notified of the intention to consider cancellation of his student visa and that his representative (I believe a migration agent) replied on his behalf and that the comments made were taken into account in making the decision.  That letter also notified Mr Cao that he may be eligible for the grant of a further Bridging Visa and should contact the Department to discuss his circumstances.

15. The AAT-MRD reasons for decision given on 5 June 2016 regarding the decision to cancel Mr Cao’s student visa state that when he was located by compliance officers, he attempted to run away and had to be restrained.  In response to this allegation, Mr Cao provided a written submission stating that his lawyer had asked for a Bridging Visa and he believed it would be automatically granted when he lodged his application with the tribunal.  Mr Cao is said to have stated that he did not know he was in Australia illegally and did not hide his details, such as his residential address, when he made an application for a visa for his daughter.  Mr Cao apparently said that he ran away from the compliance officers because they did not let him call his lawyer and insisted he was not intending to escape those officers, but merely to go to his lawyer’s office which was in the same street where he was apprehended, possibly 100 metres away.  When questioned again on the hearing of this matter by Mr Nikolic, Mr Cao essentially repeated what he had said previously to the AAT-MRD.  He said it was a misunderstanding by the compliance officers.  If he had wanted to escape he could have done so given that his discussion with the compliance officers lasted about 30 minutes.

16. Concern was also expressed about the fact that Mr Cao was working in a restaurant while on his student visa.  In response to that issue, Mr Cao said that he trusted his migration lawyer and did not know about the legal system in Australia.

17. However, on review of the delegate’s decision refusing to grant a Bridging Visa by the AAT-MRD, Mr Cao provided a different answer as to why he attempted to run away from the compliance officers.  Mr Cao also blamed the person he described as his lawyer for becoming an unlawful non-citizen in Australia.  The lawyer was working as a migration agent.  The Minister’s delegate found that Mr Cao had been working at the restaurant and was paid $16 an hour.  However, as the AAT-MRD tribunal member said, at the hearing Mr Cao claimed he was not being paid and that his work was voluntary.  When asked to explain that inconsistency, Mr Cao apparently responded by saying that the department had misunderstood what he had said.  When he referred to the payment of $16 per hour, he was referring to what Australians would have earned doing this work.  Frankly, I find that explanation implausible.

18. As for attempting to run away from the compliance officers, Mr Cao said he told the officer that he wanted to contact his lawyer who lived across the road from his house.  The Tribunal also recorded that Mr Cao said that his lawyer’s office was across the road and approximately 100 metres from the restaurant where he was working.  Apparently Mr Cao then said he had been previously arrested and denied a lawyer.  Once again, this explanation is highly improbable.  In fact, he was legally represented after being charged with the criminal offences.   

19. I find it highly unlikely that Mr Cao was not aware of his obligations to report to the Department after his student visa had been cancelled.  Not only did he have legal representation, Mr Cao is married to a PhD student.  Although his English is somewhat limited, no explanation was given why he could not have asked his wife about the need to obtain a Bridging Visa.  His wife’s English is very good.  Furthermore, I do not accept his explanation that he wished to go and see his lawyer when confronted by the immigration compliance officers.  There can be little doubt that if he asked to contact his lawyer by telephone when speaking with the compliance officers, there would have been no problem with such a request being granted.

20. There is a very clear pattern which emerges from the evidence given by Mr Cao at the three tribunal hearings which he has attended.  That is, he is prone to blaming others for his unlawful conduct.  Furthermore, the explanations for his conduct appear to change on every occasion he is required to offer an explanation, each time further embellished so as to give the impression that someone else was responsible.  I find that Mr Cao’s evidence in relation to all of his offending simply cannot be relied upon.  I have no reason to believe that circumstances would change were Mr Cao be permitted to remain in Australia.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

21. As is stated at clause 11.3 of the Ministerial Direction, the Australian community expects non-citizens to obey Australian law while in Australia.  Sexual offences against minors are viewed as being particularly serious by the Australian community.

22. Mr Cao’s behaviour is compounded by his attempts to deflect blame to the victim and his lack of remorse for the offending.  No consideration has been given to the effect his conduct had on the victim.  It appears she has once again become a missing person.  It is not clear whether the offending conduct was responsible or has contributed toward this happening although it is not difficult to foresee that a 12-year-old girl could have been seriously affected mentally by the incident.  It was not a minor mistake as Mr Cao attempt to describe it.  Such actions perpetrated on children are likely to have lasting psychological effects.

23. I have no hesitation in finding that the Australian community would expect Mr Cao’s application for a Bridging Visa to be refused given the circumstances and his reaction to the offending.

    OTHER CONSIDERATIONS

24. Clause 12 of the Ministerial Direction sets out the other considerations which may be relevant to visa applicants.  Although subclause (1) commences with the expression: In deciding whether to cancel a visa, the heading to clause 12 makes it clear that it is dealing with visa applicants and not visa holders.  Furthermore, clause 12 falls under Part B of the Ministerial Direction which plainly deals with visa applicants.  I believe I should take that first sentence to read: In deciding whether to refuse an application for a visa.  It would be helpful if this were corrected by the Minister.

25. Clause 12(1) sets out the following considerations which must be taken into account where relevant:

    (c)International non-refoulement obligations;

    (d)Impact on family members;

    (e)Impact on victims;

    (f)Impact on Australian business interests.

26. It appears that the only relevant other consideration which I must take into account is the impact on family members.  While the impact on the victim is of course a relevant consideration, because she is now a missing person, I did not have any evidence from her or her family regarding the impact of Mr Cao’s offending on her.

    Impact on family members

27. The two family members who will undoubtedly be affected by this decision are Mr Cao’s wife and their daughter.  Mr Cao’s daughter, who is presently residing in Vietnam with other family members, was to come to Australia to study early next year.  According to Mr Cao, a place has been arranged for her to commence studies in a primary school in Kew.  Furthermore, she had been granted a visa to come to Australia to study.

28. If I were to affirm the decision of the delegate of the Minister regarding refusal to grant Mr Cao a Bridging Visa, there is no obvious reason why Mr Cao’s daughter could not come to Australia on the visa which she has been granted.  The only issue which arises is whether Mr Cao’s wife is capable of looking after her while at the same time completing her PhD studies.  Mr Cao’s wife’s visa is valid until 3 March 2017 and there is no apparent reason to refuse her application for an extension of that study visa.  In a witness statement made on 21 November 2016 which was taken into evidence, Mr Cao’s wife said that she hoped to join a research project at RMIT University for three years after graduation.  She indicated she intended to apply for a temporary graduate visa (485) so that she could remain in Australia until 2021.

29. However Mr Cao’s wife also said she had been suffering from poor health as a consequence of the problems created by her husband.  She said in her statement that having her husband back and able to support and care for her would make a significant difference.

30. In many respects, Mr Cao’s wife and daughter are also victims of his offending.  Whether the daughter will be able to come to Australia to study if Mr Cao is not able to remain in Australia is not clear.  There seems to be no reason why Mr Cao’s wife will not be able to complete her studies and have her PhD conferred.  There may be a question about whether she would want to remain in Australia to conduct the research project to which she referred.  No doubt that depends on whether she has sufficient support facilities in Australia to take that course.

    CONCLUSION

31. There can be no question about the fact that Mr Cao’s criminal offending, being offences committed against a vulnerable member of the Australian community, that is a minor, and being sexual in nature, constitutes very serious criminal offending.  Furthermore, Mr Cao’s attempts to shift blame to the victim by maintaining that she initiated the contact with him and that his conduct consisted merely of kissing and hugging is seriously disturbing.  Mr Cao maintained this position despite CCTV footage indicating far more serious sexual contact.  It plainly indicates Mr Cao is not a person of good character.

1. In addition, previous decisions of this Tribunal also disclose a very disturbing pattern of fabricating evidence in order to enhance the position taken by Mr Cao.  Those decisions plainly reveal Mr Cao’s propensity for blame shifting.

2. Given the above, I find that the primary considerations strongly weigh in favour of refusing Mr Cao’s application for a Bridging Visa.  I can have no confidence whatsoever that Mr Cao will not reoffend.  He has shown no remorse regarding his conduct and has wrongly blamed the victim with preposterous and unsubstantiated statements about her character.  The fact that the victim was a missing person prior to the incident which occurred at the Sunshine railway station has no bearing whatsoever on the victim’s character.  The circumstances of her leaving home were not in evidence.

3. I have also found that the expectations of the Australian community would be that a Bridging Visa should not be given to Mr Cao.  He simply cannot be trusted to be a law-abiding person in the future.  Blaming a 12-year-old girl for his predatory sexual contact with her is plainly intolerable.

4. As for the other considerations in the Ministerial Direction, I accept that the impact on Mr Cao’s wife and daughter tend to weigh in favour of the Bridging Visa being granted.  It is, I believe, correct to say that they are also victims of Mr Cao’s offending.  However, in the event that Mr Cao is refused a Bridging Visa, his wife will be able to complete her PhD research.  On the evidence it appears to be true that she may have some difficulties without assistance, however she may need to examine other possible options.  While it is unfortunate that Mr Cao’s daughter may also be affected by his conduct, he has no one to blame but himself.  In any event, it is not entirely certain that his daughter will not be able to come to Australia to study if Mr Cao’s wife is well enough or able to get other assistance.

5. Overall, I find the weight of evidence is against Mr Cao being granted a Bridging Visa. The consequences of refusal to grant a visa are set out in s. 501F of the Migration Act. Where there has been a decision under s. 501 of the Migration Act to refuse to grant a visa to a person, if that person has made another visa application which has neither been granted or refused; and the visa applied for is neither a protection visa nor a visa specified in the Regulations, the Minister is taken to have decided to refuse that other application. I am aware that this will have consequences for Mr Cao’s appeal to the Federal Circuit Court.

6. I find that the decision made by a delegate of the Minister dated 27 September 2016 refusing to grant Mr Cao a Bridging E (Class WE) visa was the preferable decision.  I affirm that decision.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

...........................[sgd]...........................

Associate

Dated             20 December 2016

Date of hearing	7 December 2016
Advocate for the Applicant	Mr Dushan Nikolic
Solicitors for the Applicant	Carina Ford Immigration Lawyers
Advocate for the Respondent	Mr David Brown
Solicitors for the Respondent	Australian Government Solicitor