Chaurasiya (Migration)

Chaurasiya (Migration) [2022] AATA 3145 (23 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vesh Chaurasiya
CASE NUMBER:  2204773
HOME AFFAIRS REFERENCE(S):          BCC2021/2217026
MEMBER:Nathan Goetz
DATE:23 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 23 August 2022 at 5:34pm
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) – Subclass 020 (Bridging B) – granted in conjunction with application for review of refusal of student visa – incorrect answer given in visa application – criminal charge not declared – claim of misunderstanding question after advice from lawyers – application made after applicant charged but while on bail – bail later revoked and applicant taken into custody – bridging visa needed to apply for bail, in order to prepare defence and complete course of study – submission of presumption of innocence – discretion to cancel visa – assistance in completing form also not declared – refusal of student visa affirmed – bridging visa would have ceased in any case – bail conditions included surrender of passport but bridging visa application made partly for travel plans – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 109(1), 114, 359(2), 360(1), 376
Migration Regulation 1994 (Cth), r 2.41, Schedule 2, cls 020.212(2)(c), 020.511(1)(b)(iii)
Criminal Code Act (NSW), s 134.2(1)
CASE
MIAC v Khadgi (2010) 190 FCR 248
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant identifies as 30-year-old male citizen of Nepal presently located in Australia.
The applicant was represented in relation to the review by an Australian legal practitioner, Mr Abu Siddique.
BACKGROUND
On 6 March 2020 the applicant last arrived in Australia holding a student visa that was granted on 24 August 2017. The student visa ceased on 15 March 2020.
On 12 March 2020 the applicant applied for another student visa and on 12 March 2020 the applicant was granted a bridging visa to regularise his migration status. On 6 October 2020 the bridging visa ceased, and the applicant was granted another bridging visa. The applicant departed Australia on 15 October 2020 and returned to Australia on 29 June 2021.
On 25 October 2021 a delegate refused to grant the student visa. On 1 November 2021 the applicant applied to the Tribunal for review of the decision to refuse to grant the student visa. On 17 November 2021 the applicant was granted a bridging visa to regularise his migration status. On 19 November 2021 a delegate commenced the process of cancelling the bridging visa under s 109 of the Act. On 25 March 2022 the delegate cancelled the bridging visa, and the applicant became an unlawful non-citizen which he remains to date.
On 31 March 2022 the applicant applied to the Tribunal for review of the decision to cancel the bridging visa. It is this decision that is the subject of the review application.
On 25 May 2022 the Tribunal affirmed the decision to refuse to grant the student visa in AAT case 2115529.
On 1 July 2022 the Tribunal wrote to the applicant to request under s 359(2) that the applicant provide the Tribunal with information. The information requested and the applicant’s response is detailed later in this decision record.
On 5 July 2022 the Tribunal wrote to the applicant under s 360(1) of the Act to appear at a Tribunal hearing scheduled for 10:00am on 28 July 2022 so he could give evidence and present arguments in relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a decision favourable to the applicant on the basis of the material it had.
On 28 July 2022 the applicant appeared at the Tribunal hearing by telephone from prison. The Tribunal determined that a telephone hearing was appropriate in all the circumstances. The applicant’s migration agent also attended the Tribunal hearing by telephone.
THE STATUTORY REQUIREMENTS FOR CANCELLATION OF THE VISA
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
CONSIDERATION
Certificate and notification regarding Administrative Appeals Tribunal’s discretion to disclose certain information under s 376 of the Act.
The delegate placed a s 376 certificate dated 10 November 2021 to cover TRIM reference number CLD2021/26462064.
MIGRATION ACT 1958 - SECT 376
Tribunal's discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister:
(i) has certified, in writing, that the disclosure of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; and
(ii) has not included a statement in the certificate that the document or information must only be disclosed to the Tribunal; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence and section 375A does not apply to the document or information.
(2) Where, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) shall notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) Where the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary pursuant to subsection (2), disclose any matter contained in the document, or the information, to the applicant or to any other person who has given oral or written evidence to the Tribunal.
It was claimed that disclosed of the material would be contrary to the public interest because the material would disclose lawful method for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal does not accept that the document is capable of being covered by s 376 of the Act. The certificate should not have been placed on the department file.
The documents purportedly covered by the certificate include an email from a police officer to an officer of the Department attaching the Court Attendance Notice detailing the charge against the applicant, the Facts Sheet outlining the prosecution case against the applicant, and the applicant’s bail documents. How the disclosure of that material would disclose methods for preventing, detecting and investigating breaches or evasions of the law is not apparent to the Tribunal. The certificate is invalid and the documents (which the Tribunal believes that the applicant would already have a copy of, as well as those documents forming the basis of the delegate decision) are disclosable to the applicant.
At the Tribunal hearing, the Tribunal told the applicant about the certificate and the documents it purportedly covered and informed the applicant the nature of those documents and its view that the certificate was invalid and that the documents were disclosable to the applicant.
The Notice of Intention to Consider Cancellation
According to the delegate decision record, on 16 December 2021 the delegate issued a Notice of Intention to Consider Cancellation (NOICC) but this was not received by the applicant until 22 December 2021.
The delegate considered that the applicant had not completed with s 101 of the Act which requires that ‘a non-citizen must fill in or complete his or her application firm in such a way that (b) no incorrect answers are given or provided.’
In the NOICC, the delegate detailed that on 15 November 2021 the applicant lodged an application for a bridging visa in connection with the applicant’s application for review at the Tribunal concerning the decision to refuse to grant him the student visa. In that form, the applicant was asked:
Question 17 – Have you, or any other person included in this application, ever been charged with any offence that is currently awaiting legal action?
The applicant wrote ‘No.’
The delegate wrote that based on this answer, as well as other answers in the bridging visa application form, the delegate accessed that the applicant met the requirements for the bridging visa which allowed the applicant to travel overseas and return to Australia, as well as lawfully remain in Australia pending the outcome of the review application to the Tribunal concerning his student visa refusal.
The NOICC went on to detail that the delegate received information to demonstrate that the applicant’s answer to question 17 was incorrect. The delegate detailed the information as follows:
On 21 September 2021 the applicant was charged by New South Wales Police with the offence of ‘obtain financial advantage by deception’ under s 134.2(1) of the Criminal Code Act 1995.
The charge was in relation to allegedly dishonestly obtaining financial advantage from the National Disability Insurance Scheme during the period of 26 March to 20 August 2020 totalling $123,188.54.
The delegate noted that the applicant was granted bail by New South Wales Police on 21 September 2021 to appear at Fairfield Local Court on 20 October 2021 concerning that charge, and that the applicant was given a copy of the bail certificate and that the applicant signed the bail acknowledgment.
The delegate reasoned that the applicant did not comply with his obligations under s 101(b) of the Act because at the time he lodged the bridging visa application form on 15 November 2021, the applicant had been charged with the offence of obtaining financial advantage by deception on 21 September 2021, meaning that the applicant’s response of ‘No’ to Question 17 was incorrect. As a result, the delegate as considering cancellation of the applicant’s visa under s 109 of the Act.
The NOICC invited the applicant to comment on the possible non-compliance and to provide written reasons why the bridging visa should not be cancelled within 14 days after the applicant was taken to have received the NOICC.
Record of Decision to Cancel
On 25 March 2022 the delegate cancelled the applicant’s bridging visa. The decision record indicates that the applicant did not respond to the invitation to provide written reasons why the bridging visa should not be cancelled.
The basis of the delegate’s reasoning that there had been non-compliance with the applicant’s obligations under s 101(b) of the Act was the same as that contained in the NOICC and is unnecessary to repeat.
Review application to Tribunal
On 1 July 2022 the Tribunal wrote to the applicant under s 359(2) of the Act and requested information. The Tribunal detailed that on 22 December 2021 the delegate wrote to the applicant with a NOICC which invited the applicant to provide reasons why the bridging visa should not be cancelled, and that the applicant did not respond to this notice. The Tribunal invited the applicant to provide the Tribunal with information about why the bridging visa should not be cancelled.
On 12 and 15 July 2022 the applicant provided the following information:
A copy of the NOICC with a handwritten annotation where the applicant wrote “I was unable to respond to the NOICC because it was lock down in John Moroney (the prison) and also, I had no email access nor had access to post,” “I had asked the lawyer to respond but he did not respond,” and “I was unable to be in contact with student corner consultancy so missed the chance to respond.” He also attached a document from Australian Border Force relating to his detention and pending removal, as well as the delegate decision to cancel his bridging visa.
A letter titled ‘Reasons why my bridging visa should not be cancelled’ where the applicant:
Repeated why he was unable to respond to the NOICC.
Claimed that he misunderstood Question 17 because he was advised by two lawyers that he had not been charged yet because it was only ‘an allegation’ and because the applicant had English as a second language. Further, his understanding about ‘currently awaiting legal action’ was that this phrase meant that the applicant was ‘waiting for legal action.’ The applicant submitted that was the understanding of Mr Niranjan Prasaid who was also from Nepal.
The applicant also sought to either draw a distinction or similarity to what he described as a ‘sentence in the AAT form’ which apparently read ‘this visa allows him to continue to lawfully remain in Australia pending the outcome of his AAT appeal.’ The applicant wrote that ‘this sentence gives clear meaning that result/outcome is pending’ and that ‘awaiting legal action’ created a ‘different meaning.’
The applicant detailed his ‘contribution to the community’ as providing care to disabled people since 2018 as a ‘disability support worker.’ He wrote that he worked as a director (from 2019 to 2021) of an NDIS provider ‘Silexperts’ that delivers 24/7 care to disabled people. He detailed his work as a ‘student nurse’ and care for people in aged care, nursing homes and hospitals. He claimed to have ‘dedicated his life to people during the COVID-19 outbreak and staff shortages.
Regarding his current circumstances, the applicant wrote that the criminal charges were currently before the court and he was entitled to the presumption of innocence. He claimed that it was important for him to have a valid visa so he could apply for bail and be out in the community to defend himself against the criminal charges.
The applicant also detailed that his ‘Masters of Nursing’ was an important factor to consider when deciding whether or not to cancel the bridging visa. The applicant wrote that he completed all his semester subjects except the final semester. He wrote that he needed a visa in order to complete his studies and that his ‘dream will fade away’ if he cannot complete his studies and that his study to date would be meaningless.
He summarised the reasons for not cancelling the bridging visa as his desire to return back to Australia pending the AAT appeal of his student visa and that the non-compliance happened due to poor English and a misunderstanding about the technical words of Question 17.
The applicant attached statutory declarations from Christopher Jeffries dated 22 March 2021, Luke Woods dated 21 March 2021, Mehmet Turhanlar dated 21 March 2021, Gary Buchanan dated 21 March 2021, Eroni Dawai dated 22 March 2021, Shirvidhya Asheeta dated 21 March 2021, Grace Kamla Naidu dated 22 March 2021, Elizabeth Cupic dated 22 March 2021, Jomavelle Baggs dated 22 March 2021, and Shiro Vindra Ravinshed dated 22 March 2021. All of these statutory declarations appear to be from people who are either clients of Silexperts or relatives of those clients. All of those statutory declarations, which the Tribunal notes predate the NOICC, are directed at the applicant being granted an exemption to allow him to return to Australia.
The applicant also provided the Tribunal with a letter (undated) from Khen Huynh, who was identified as a director of Better Living Solutions. The letter detailed that the author knew the applicant as a director of SILexperts which was registered as an NDIS provider. The author claimed that over the last 2 years the applicant and his staff have provided care and assistance to countless clients within the author’s properties.
The applicant also provided the Tribunal with a statutory declaration from a person who identified himself as MD Shazedul Islam who is a director of operations at GreenLife Care Australia which was identified as an NDIS provider. The statutory declaration was dated 23 March 2021. He wrote that he knew the applicant as they share mutual business in serving disabled Australians. The author wrote that Silexperts is known to deliver best quality services and the author feels confident working with the applicant. He wrote that due to the absence o the applicant, the operation of Greenlife has been hampered. He detailed that Greenlife delivers disability accommodation and Silexperts provides the care at the property. Due to the applicant’s absence, the properties are vacant as the organisation is not able to connect with disabled participants. The author wrote that he was asking the authorities to allow the applicant to come back to Australia soon.
A letter was also provided from Sumintra Wati Ramlu which was dated 21 March 2021. The letter was titled ‘Exemption to be uplifted for travel to Australia.’ The author detailed that her daughter was a person taken care of by Silexpert staff. She detailed her satisfaction with the organisation and claimed that many families were waiting for the applicant to return to Australia so the families could sign agreements for Silexperts staff could provide them with services.
Discussion at Tribunal hearing
Family and travel
The applicant confirmed that he was a citizen of Nepal and that his wife and parents are presently located in Nepal. He said they live together in the applicant’s home in Birgunj, Nepal. He has no family in Australia.
In response to the Tribunal’s question about his future intentions in Australia, the applicant said that he planned to complete his studies and then return to Nepal or go and live in the United States where two elder brothers live. He noted that he had a deceased sister and that his parents were in the process of applying for United States citizenship. The applicant said that he nor his family had ever experienced harm in Nepal. He has no fear of returning to Nepal.
The Tribunal noted that the applicant had travelled out of Australia several times. The applicant said that he always travelled to Nepal but noted that he had also travelled to Dubai and the Maldives with his wife.
Criminal case against the applicant and completion of the Bridging B visa application form
The applicant conceded (after some time) at the Tribunal hearing that he was charged by police on 21 September 2021 with a criminal charge and admitted that he had provided incorrect information when he declared in the Bridging B visa application form on 15 November 2021 that he had not been charged with any offence that is currently awaiting legal action.
The applicant was at pains to explain to the Tribunal that he did not intentionally provide an incorrect answer about this when he completed the Bridging B visa application form. The applicant may have misunderstood the Tribunal’s questioning about this issue and may have thought that the Tribunal was asking whether he deliberately wrote ‘No’ about whether he had been charged and that he knew he had in fact been charged. The applicant repeated on several occasions that he thought he was being suspected or investigated for the charge but did not believe he had, in fact, been charged. Noting that the applicant initially told the Tribunal that, as of 15 November 2021 when he completed the Bridging B visa application he had not been charged, the Tribunal asked the applicant to tell the Tribunal when had had been charged. The applicant said that this was on 18 November 2021 when the applicant’s bail was revoked, and the applicant was taken into custody. The applicant then said that it was later that he realised that he was charged in September 2021.

After the matter was stood down for the applicant to speak to his representative, the applicant conceded that, as a matter of fact, the applicant had been charged in September 2021 but repeated the basis upon which he believed that, at the time he completed the Bridging B visa application, he was not charged.
The Tribunal became aware that subsequent to the delegate decision which detailed that the applicant had been charged with one offence on 21 September 2021, the applicant now faces multiple charges. Records indicated that the applicant faces a committal mention hearing at the Parramatta Local Court on 2 September 2022. At the Tribunal hearing the applicant described this as a hearing where he will need to enter a plea of guilty or not guilty to the charges. In response to a written request from the Tribunal the applicant indicated that he is pleading not guilty to the charges and reaffirmed this at the Tribunal hearing.
The Tribunal had been provided an Amended Court Attendance Notice which showed that the applicant faced an additional 10 charges with an Amended Facts Sheet. The Tribunal asked the applicant whether he faced one charge. The applicant readily conceded that he now faced a total of 11 charges. The Tribunal accepts that the applicant did not attempt to hide the fact that he had been charged with additional offences from the Tribunal.
The Tribunal notes that the applicant was initially released on police bail on 21 September 2021 but by the time the applicant appeared at the Tribunal hearing on 28 July 2022, he was in prison on remand. The Tribunal advised the Tribunal in writing that on 17 November 2021 the applicant had his bail revoked and he was placed into criminal detention.
At the Tribunal hearing, the applicant conceded that the application to revoke his bail was based on the fact that he faced additional allegations of offending related to allegations that documents he provided in support of a bail variation that the prosecution alleged were fraudulent. The Tribunal accepts that the applicant did not attempt to hide from the Tribunal what he was alleged to have done which led to his bail being revoked. The applicant’s explanation about what he was alleged to have done was consistent with the Facts Sheet.
The Tribunal noted to the applicant its acceptance of the fact that the applicant has no proven criminal history, and that the charges against him were allegations, but also noted the fact that the charges were ongoing, meaning that there was sufficient evidence to prosecute the case, prima facie evidence of the elements of the offence, and there was a reasonable prospect of conviction[1] may be a reason that the Tribunal would affirm the delegate decision. The applicant accepted that the fact he had ongoing charges demonstrated that the prosecution was satisfied that they had the evidence to demonstrate the applicant’s guilt, but that he is to be presumed innocent of the charges against him and considering the outstanding criminal charges as a reason to uphold the cancellation decision undermined that presumption.
[1] See Prosecution Policy, Commonwealth Director of Public Prosecutions, online, and Prosecution Guidelines, New South Wales Director of Public Prosecutions, online, >
The applicant told the Tribunal hearing that another reason to not uphold the Bridging B visa cancellation was because his detention hindered his ability to adequately defend himself against the outstanding criminal charges, including his lack of ability to access his own documents that would assist in his defence. He mentioned a desire to attend on his office with police to show documentation. The applicant confirmed to the Tribunal that he currently has a private lawyer acting pursuant to a grant of legal aid assistance to assist him with his charges.
Given what the applicant wrote about his reason for declaration ‘No’ to the question about whether he had been charged with any criminal offence awaiting legal action, the Tribunal explored this further at the Tribunal hearing. The Tribunal asked the applicant about the circumstances of the completion of that application form.
The applicant told the Tribunal hearing that the handwriting on the form was that of his previous migration agent, but that Question 17 was blank, and the agent asked the applicant those questions and the applicant provided the answers. The applicant said he paid money for this assistance. The Tribunal asked the applicant why no assistance was declared in the Bridging B visa application form. The applicant said that this was because there was no assistance, but only advice from the previous migration agent. The Tribunal noted to the applicant that it may form a view that the failure to declare the assistance in the Bridging B visa application may be another reason to affirm the decision under review because it appeared that he had failed to provide a correct answer by not declaring this assistance. The applicant responded that he should not be responsible for the agent failing to declare that assistance. He told the Tribunal that if he was seeking to hide anything, he would not have told the Tribunal about the fact that the previous migration agent filled in the form except for Question 17.
The applicant’s current migration situation in Australia
The Tribunal noted that the Bridging B visa was granted on an indefinite basis until a final decision was made on his application for a student visa. When the applicant applied for the Bridging B visa on 15 November 2021, his student visa application had been refused by a delegate on 25 October 2021 and he applied to the Tribunal for review of the refusal decision on 14 November 2021.
The applicant told the Tribunal that the purpose of applying for the Bridging B visa was to allow him to remain in Australia in pursuit of his studies. He noted that the delegate in the decision record indicated that ‘there was no information, other than his study, to indicate he has established significant ties in Australia’ and the applicant wondered how he could demonstrate anything more, as that was his purpose being in Australia.
The Tribunal noted to the applicant that on 25 May 2022, the Tribunal affirmed the decision to refuse to grant the student visa, meaning that, even if the Tribunal was to set aside the decision to cancel the applicant’s Bridging B visa, the Bridging B visa would be taken to ceased 35 days after 25 May 2022. This was because Section 114 of the Migration Act provides that if the Administrative Appeals Tribunal sets aside a decision under section 109 to cancel a person's visa, the visa is taken never to have been cancelled.
Clause 020.511(1)(b)(iii) of Schedule 2 to the Migration Regulations provides that in the case of a Bridging B visa granted to a non-citizen who has applied for a substantive visa, if the substantive visa application is refused and the Tribunal makes a decision on the holder's application for merits review of that refusal (other than a decision to remit the application to the Minister for reconsideration), the Bridging B visa permits the holder to remain in Australia until 35 days after the Tribunal makes the decision.
If the Tribunal were to set aside the Bridging visa cancellation decision, it will be taken never to have been cancelled. This would mean that the Bridging B visa would continue to be in effect until one of the events specified in cl 020.511(1)(b) takes place.
As a previously constituted Tribunal affirmed the decision to refuse the Student visa, it would appear that the Bridging B visa that was granted to the applicant on the basis of his Student visa application would be in effect until 35 days after the date of the Tribunal’s decision to affirm the Student visa refusal decision (see cl 020.511(1)(b)(iii)). On this basis, the Bridging B visa would have expired on 29 June 2022.
The applicant said that he was not aware that the Tribunal had affirmed the decision to refuse to grant the student visa. The Tribunal discussed with the applicant that it may take into account the fact that his migration matter had been concluded as a reason to affirm the decision to cancel the Bridging B visa.
The applicant’s role in providing care to people through the NDIS
The as noted previously, the applicant provided several statutory declarations to the Tribunal from people who were provided services through the applicant and/or Silexperts. The applicant conceded at the Tribunal hearing that those statutory declarations were provided for the purpose of the applicant applying to lift the travel restriction which was in place to prevent people from returning to Australia during the COVID-19 pandemic but told the Tribunal hearing that they were provided to the Tribunal to show the support he provided to people.
The Tribunal noted to the applicant that he had been in criminal detention since November 2017 and queried this was still relevant. The Tribunal reasoned that the support was no longer provided in light of the applicant’s absence. The applicant responded that he developed a relationship with his clients and that many of them had asked his colleagues about when the applicant would be able to return and look after them, but also noted that the National Disability Insurance Agency had banned the applicant from providing services to people.
A search by the Tribunal of the relevant online database demonstrates that the applicant was prohibited from being involved in the provision of supports and services, directly or indirectly, to people with disability for a period of two years effective from 5:00pm on 17 December 2021[2].
[2] AND REASONS
The issue in this case is whether the applicant’s bridging visa should be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Was there non-compliance as described in the s 107 notice?
The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with the obligation imposed by s 101(b) of the Act that no incorrect answers are to be given or provided.
In the present case, the applicant did provide incorrect information when answering ‘No’ to the question about whether the applicant has ever been charged with any offence that is currently waiting legal action per question 17 of the bridging visa application form. The form was signed on 15 November 2021, which was just over two months after the applicant had been charged with the offence of obtaining financial advantage by deception and bailed for the charge on 21 September 2021.
The applicant agreed at the Tribunal hearing that the information was incorrect.
Whether the applicant thought he was providing incorrect information when he answered ‘No’ does not affect whether he had, in fact, provided incorrect information. His explanations will be considered by the Tribunal in the exercise of the discretion to cancel or not cancel the visa.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:
·     the correct information
·     the content of the genuine document (if any)
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·     the circumstances in which the non-compliance occurred
·     the present circumstances of the visa holder
·     the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·     any other instances of non-compliance by the visa holder known to the Minister
·     the time that has elapsed since the non-compliance
·     any breaches of the law since the non-compliance and the seriousness of those breaches
·     any contribution made by the holder to the community.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
What is the correct information?
The correct information is that the applicant was charged with a criminal offence at the time he made the declaration that he had not been charged in the Bridging B visa application on 15 November 2021.
What was the content of the genuine document (if any)?
The cancellation decision is based on the fact that the applicant answered ‘No’ to the question about whether he had been charged with an offence that was awaiting legal action, not on the basis that any bogus/fraudulent documents were produced. Therefore, this consideration is irrelevant.
Was the decision to grant the Bridging B visa was based, wholly or partly, on incorrect information?
The applicant was granted the Bridging B visa on the basis the applicant met various criteria. While there is not criteria for the grant of the Bridging B visa that requires the applicant to not have been charged with a criminal offence, the Bridging B visa application form clearly asks that question because whether the applicant had been charged with a criminal offence that was awaiting legal action because it may affect the decision-maker’s assessment about whether the applicant met certain criteria.
The Tribunal notes that delegate decision record details that the answer of ‘Yes’ concerning the criminal charges would have led to the delegate requesting more information, which would have revealed that the applicant was subject to bail conditions that included surrendering his passport, not applying for another passport and not going within 500 metres of any international airport or another point of departure from Australia. The delegate reasoned that this would have been relevant about whether the applicant wished to leave and re-enter Australia pending review of the decision to refuse to grant the student visa and that the applicant’s reasons for doing so were substantial. The delegate reasoned that if the delegate was aware that the applicant was not actually allowed to depart Australia, this may have affected the assessment about whether the applicant met cl 020.212(2) for the grant of the Bridging B visa.
The Tribunal’s view is slightly different to that of the delegate who decided to cancel the applicant’s Bridging B visa but agrees that the relevant criteria that would have been affected is cl 020.212(2). It is detailed below:
020.212
(2) An applicant meets the requirements of this subclause if:
(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b) that application has not been finally determined; and
(c) the applicant wishes to leave and re-enter Australia during the processing of that application; and
(d) the Minister is satisfied that the applicant's reasons for wishing to do so are substantial.
In the applicant’s Bridging B visa application form he declared on 15 November 2021 that he expected to depart Australia on 20 November 2021 and return on 12 December 2021 and that the purpose of the intended travel was a ‘medical emergency.’ Had the applicant declared that he had been charged with an offence that was currently awaiting legal action, the delegate may have reasoned that the applicant wished to leave Australia but did not wish to re-enter Australia as required by cl 020.212(c). In other words, the delegate may have formed a view that the applicant applied for the Bridging B visa so he could escape Australia and not face the criminal charges, meaning that the applicant would fail to satisfy cl 020.212 in its entirety and would therefore fail to meet the criteria for the grant of the visa.
The Tribunal is satisfied that the absence of the applicant providing the correct information led to the Bridging B visa being granted. Had the applicant provided the correct information, the Tribunal is satisfied that the decision to grant the Bridging B visa was based partly on the incorrect information provided by the applicant.
What were the circumstances in which the non-compliance occurred?
In both his written material to the Tribunal and again in his oral evidence at the Tribunal hearing, the applicant was consistent that he did not think at the time he made the declaration on 15 November 2021 he had in fact been charged with an offence that was awaiting legal action. As best the Tribunal can understand the basis of the applicant’s belief that he had not been charged as of 15 November 2021 was based on the fact that:
·     The applicant speaking English as a second language contributed to him providing incorrect information
·     He was ‘advised by two lawyers that I had not been charged yet and it was only an allegation’ and that those two lawyers ‘advised me that it will take 6 months to get a brief of evidence from the police and then 2 to 4 weeks to get a charge certificate from the police or prosecution.’
·     The phrase ‘currently awaiting legal action’ was misconstrued by the applicant. He thought that this question asked whether the applicant was ‘waiting for any legal action’ which he thought did not apply to him because ‘legal action was already going on.’
Taking a favourable view of the applicant’s evidence concerning why he answered ‘No’ to the question about whether he had been charged with any offence that is currently awaiting legal action, it appears that the applicant is suggesting that he was being investigated by police concerning an allegation and had been bailed to appear at court but had not been charged. The allegation was not ‘awaiting legal action’ because the investigation by police had commenced.
In considering whether this explanation is reasonable, the Tribunal had regard to the ‘Court Attendance Notice’ and the Bail Acknowledgement on the Department file. The copy of the Court Attendance Notice is the ‘Informant Copy’ and the Tribunal is satisfied that there would also be an ‘Accused Copy.’ That Notice indicates that the matter is listed at the Fairfield Local Court on 20 October 2021 and details the details of the single offence (at the time), namely obtaining a financial advantage by deception of $123,188.54 from the NDIA. The Tribunal accepts that the Court Attendance Notice
The Tribunal has reflected on whether to accept this explanation as a consideration for whether to cancel or not cancel the Bridging B visa. The Tribunal accepts that there are cases where a person can be placed onto bail without being charged for the purpose of investigation, such pre-charge bail in England.
Ultimately, the Tribunal does not accept the applicant’s explanations for the following reasons:

First, the Court Attendance Notice indicates that the single charge is listed at the Fairfield Local Court on 20 October 2021 and details the offence. The Tribunal does not accept that the applicant would believe he was not charged and only under investigation if he had to appear at court.
Second, the Bail Acknowledgement which was signed by the applicant details a ‘Charge Ref Number’ demonstrates that the applicant was in fact charged with an offence
Third, despite the applicant saying that he had received advice from two lawyers who said that he had not been charged and the matter was only an ‘allegation’ the applicant did not provide corroborative evidence from those two lawyers to support the advice he claimed to receive from them, Further, the applicant declared in the Bridging B visa application form that he received no assistance completing that form, meaning the claimed discussion about what to answer to Question 17 did not take place, as a declaration of assistance would have been made if the applicant had in fact had a migration agent or lawyer complete the majority of the form and been paid for that assistance.
The Tribunal does not accept that any language barriers experienced by the applicant overcome the above concerns.
Having rejected the applicant’s explanation about the circumstance in which the non-compliance occurred, the Tribunal concludes that there are no mitigating circumstances in which the non-compliance occurred.
What are the present circumstances of the applicant?
The Tribunal understands that the applicant is presently remanded in criminal detention in Australia, that he has no family in Australia, no ongoing visa application, that he is an unlawful non-citizen in Australia liable to removal, and that he is facing criminal charges next listed on 2 September 2022 at Parramatta Local Court. The Tribunal accepts that the applicant’s circumstances have resulted in the applicant presently being held in criminal detention.
The Tribunal also accepts that the applicant described the purpose of his being in Australia is only for the purpose of study.
What was the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act?

100. Subdivision C covers ss 97 to 115 of the Act and deals with cancellation of visas based on incorrect information. Section 104 of the Act provides that if circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them. Section 105 of the Act provides that if a non-citizen becomes aware that an answer given or provided in his or her application form was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
101. The evidence is that the applicant did not take any steps under ss 104 or 105 of the Act to correct the incorrect information prior to the NOICC being issued for the Bridging B visa.
Are there other instances of non-compliance by the applicant known to the Minister?
102. Prior to the Tribunal hearing, the Tribunal was unaware that the applicant had received assistance to complete the Bridging B visa application form because the completed form declares no assistance per Question 18. At the Tribunal hearing, the applicant maintained that he had not received assistance to complete the form, but also said that a migration agent / lawyer had completed all the questions for him except Question 17, and that the applicant had paid the migration agent / lawyer to lodge the Bridging B visa application.
103. Accepting what the applicant said about the completion of the Bridging B visa application form and payment, the Tribunal is satisfied that the applicant did have assistance completing the form and that he therefore provided incorrect information under s 101(b) of the Act when he declared that he had no assistance completing the form. This would constitute another instance of non-compliance with obligations by the applicant.
104. Apart from the instance of non-compliance discovered during the Tribunal hearing, there is no other instance of non-compliance by the applicant known to the Tribunal.
What time has elapsed since the non-compliance?
105. The non-compliance occurred when the applicant made the declaration on 15 November 2021 that he had not been charged with an offence that was awaiting legal action. That is 9 months ago. The Tribunal does not accept that this period of time should be viewed in the applicant’s favour, as there is no evidence that the delegate became aware of the non-compliance and delayed making a decision.
Are there any breaches of the law by the applicant since the non-compliance and what is the seriousness of those breaches?
106. There is no evidence that the applicant has a proven criminal record either prior to our subsequent to the non-compliance.
107. The applicant now faces eleven charges which are next listed on 2 September 2022. The applicant told the Tribunal he is pleading not guilty. These are unproven charges and do not constitute a breach of the law.
What is the contribution made by the applicant to the community?
108. The Tribunal accepts that the applicant has previously been involved in the provision of disability services through the NDIA, but also notes that there are charges against the applicant in relation to the provision of those services. This puts the Tribunal in an impossible situation because it may be that any claimed contribution made by the applicant concerning those services would be undermined if the case against the applicant is proven.
109. Conversely, if the case against the applicant is not proven, it may be that the applicant has made a significant contribution to the community by providing disability services to people who are in receipt of NDIA funding.
110. Given the uncertainty about whether the applicant has been involved in dishonest conduct concerning provision of services through the NDIA, the Tribunal cannot attach any weight to contributions made to the community through this work.
Will there be any consequential cancellations of another person’s visa under s 140 of the Act in the event that the applicant’s Bridging B visa was cancelled?
111. There is no evidence that any person holds a visa on the basis that the applicant holds a Bridging B visa. Therefore, this consideration is irrelevant.
Does Australia have obligations under relevant international agreements that would or may be breached as a result of cancelling the applicant’s Bridging B visa?
112. The applicant is a citizen of Nepal and indicated to the Tribunal hearing that his reason for being in Australia was for study. At the Tribunal hearing, he claimed to not fear return to Nepal, has returned to that country several times since his initial arrival in Australia and told the Tribunal that no harm in that country had been directed towards him or his family. He has not lodged any visa application that would enliven consideration of Australia’s protection obligations under the Refugee Convention and the Refugee Protocol, the Convention Against Torture or the International Covenant on Civil and Political Rights. Therefore, this consideration is irrelevant.
113. Concerning the Convention on the Rights of a Child, the applicant has no children as confirmed at the Tribunal hearing. Therefore, this consideration is irrelevant.
Are there mandatory legal consequences of the decision to cancel the Bridging B visa?
114. The Tribunal accepts that as a result of the decision to cancel the Bridging B visa, the applicant has become an unlawful non-citizen and is liable to removal from Australia under s 198 of the Act because the student visa application connected with the Bridging B visa grant has now been finally determined with the Tribunal affirming the decision to refuse to grant the student visa.
115. The Tribunal also accepts that because of cancelling the Bridging B visa, the applicant would be subject to s 48 of the Act, which acts to prevent the applicant from lodging certain visa applications while in Australia. The Tribunal notes that the applicant would be subject to this restriction in any event because of the student visa refusal.
116. The Tribunal also accepts that if the applicant were to apply for certain visas, he may be subject to PIC 4013 or PIC 4020 which, broadly speaking, means that the applicant cannot be granted certain visas in the three years after the cancellation decision.
Are there any other relevant matters?
The fact that the applicant did not respond to the NOICC
117. In the material provided to the Tribunal, the applicant suggested that because he had not been able to provide a response to the NOICC, the visa should not be cancelled.
118. The Tribunal does not accept that this is a factor that should be taken into account about whether to not cancel the visa. If the Tribunal were to take this into account, it would create a situation where a person who does not respond to the NOICC (for whatever reason) would receive a benefit over someone who engages with the cancellation process by responding to the NOICC.
The fact that the applicant has ongoing criminal charges
119. The Tribunal has taken into account the fact that although the applicant does not have a proven criminal history in Australia, he faces serious criminal charges. The Tribunal has taken the fact that the applicant has outstanding criminal charges into account because they remain ongoing and, as evidenced by the fact that they are ongoing, there are reasonable prospects for conviction.
The fact that the cancellation decision concerns a visa that was granted for a purpose that is no longer present
120. The Tribunal has also had regard to the fact that the bridging visa was granted on the basis that the applicant had a student visa application that had not been finally determined. The evidence is that the applicant applied for a student visa on 12 March 2020 and that the Tribunal made a decision on that application on 25 May 2022 to affirm the delegate’s earlier decision to refuse to grant the student visa.
121. At the Tribunal hearing, the Tribunal discussed the fact that the purpose of the bridging visa was no longer in existence and that this may be a reason to uphold the decision to cancel the bridging visa. The applicant told the Tribunal that he was unaware that the Tribunal had made a decision in respect of his student visa application. Given the applicant was, as the Tribunal understands it, in criminal detention at the time the Tribunal decided regarding the student visa application, the Tribunal accepts that the applicant may not have been aware that the Tribunal review had been concluded. During the present Tribunal hearing, the Tribunal provided the applicant a copy of the decision for his reference.
122. As the Tribunal understands the operation of the visa grants, in the event that the Tribunal decided to not uphold the cancellation of the bridging visa, then the bridging visa will be taken to expire 35 days from the date the Tribunal made a decision concerning the student visa on 25 May 2022. This means that the applicant would find himself in the exact same position as his present position, namely, an unlawful non-citizen not holding a bridging visa.
123. The Tribunal gave the applicant time to reflect on this factor as something that it would consider in the exercise of the discretion to cancel the visa. The applicant did not make any argument that this was a factor that the Tribunal should not take into account. The Tribunal has done so.
CONCLUSION
124. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled for the following reasons.
125. The Tribunal is not satisfied that the applicant’s declaration ‘No’ was inadvertent or due to a misunderstanding. The Tribunal is satisfied that the applicant has demonstrated a dishonest approach to his migration obligations. Further, there was additional non-compliance by the applicant failing to declare the assistance he claimed to have received in completing the bridging visa form.
126. The Tribunal does not accept that the applicant would not be able to adequately defend himself concerning the criminal case against him in either criminal detention or immigration detention. Many people defend themselves from detention.
127. The Tribunal does not accept that any hardship will flow to people who were previously in receipt of services provided by the applicant. As he has been banned from providing NDIA services, it would make no difference to the recipients who previously were served by the applicant. In terms of looking at that service as a ‘contribution to the community,’ the Tribunal gives that no weight for the reasons previously discussed.
128. The Tribunal reflects on the applicant’s personal circumstances and is not satisfied that those circumstances warrant the bridging visa not being cancelled.
129. Further, the Tribunal considers that the fact the bridging visa would have expired (in the event it was not cancelled) as a factor that means that the decision to cancel the visa should be upheld. That bridging visa no longer has any purpose.
130. The Tribunal accepts that some consequences may flow from the applicant’s bridging visa being cancelled, however, those consequences are already present due to the fact that the applicant already has a refusal of a student visa on his migration record.
131. The factors that support upholding the decision to cancel the visa outweigh the factors in support of not cancelling the visa.
decision
132. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.
Nathan Goetz
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c) having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2022] AATA 3145

23 August 2022

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