Fattah (Migration)

Fattah (Migration) [2017] AATA 2787 (18 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Dr Sharif Mohammad Abdul Fattah
CASE NUMBER:  1730258
DIBP REFERENCE(S):  BCC2017/2097054
MEMBER:Wendy Banfield
DATE:18 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 18 December 2017 at 12:13pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Criminal charges pending against applicant – Risk to the Australian community – Procedural fairness – Reasonableness of detention – Ability to prepare defence to criminal charges - Character references
LEGISLATION
Migration Act 1958, ss 116, 376, 499
Migration Regulations 1994, r 2.43
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 November 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) (BVE) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been charged with an offence against the laws of the state of New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Prior to the hearing, the following documents were submitted:
·     Police Checks for Sharif Fattah from Bangladesh, Iran and New Zealand;
·     Bail Conditions for Sharif Fattah;
·     Summary of Donations and Loans to Sharif Fattah;
·     Statutory Declaration of Syed Ahmad dated 7 December 2017;
·     Statutory Declaration of AKM Shamsuddin dated 7 December 2017;
·     Statutory Declaration of Rajab Ali dated 7 December 2017;
·     Character References of Hon Matthew Robson dated 2 May and 24 July 2017;
·     Section 192 Detention Acknowledgement dated 30 November 2017;
·     Ombudsman Report into Bridging Visa Cancellations due to Criminal Charges or Convictions.
·     Statutory Declaration of Sharif Fattah dated 7 December 2017.
The applicant appeared before the Tribunal on 8 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from witnesses Rajah Ali, Akim Shamsuddin, Akim Nazrul Islam, Syed Saifuddin Ahmad.
Background
The applicant is a citizen of New Zealand who was born in Bangladesh and is currently aged 61. He came to Australia in January 2016 as the holder of a Subclass TY444 visa and worked as a medical practitioner in general practice. On 7 March 2017 the applicant was charged with criminal offences against the laws of New South Wales. In May 2017 he was granted bail with conditions as to his conduct.
On 16 October 2017 the applicant’s Subclass TY444 visa was cancelled and on 8 November 2017 he was granted a BVE. He was advised to report to the Department on 30 November following a court appearance on 29 November. The applicant attended the Department and following an interview process, his BVE was cancelled and he was taken to Villawood Immigration Detention Centre.
Evidence of the visa applicant
The applicant said he came to Australia from New Zealand most recently on 15 January 2016 to practice medicine. He had lived in New Zealand since 14 September 1996 and has been a medical practitioner since 1982. The applicant’s wife, mother-in-law and adult son who is 30 years old are in New Zealand because the applicant’s mother-in-law is very unwell. This has prevented the applicant’s family from moving to Australia. The applicant said his wife is also a doctor but does not practice. According to the applicant he had signed a contract to purchase a house but following the incident in which he has been charged with criminal offences, he has had to cancel the contract.
The applicant advised he was arrested on 7 March 2017 and granted bail on 5 May. He returned to his address in Campbelltown and has been living there under strict bail conditions. The applicant said he is only able to leave the residence between 8am and 8pm accompanied by a chaperone and must report to police daily. He has also surrendered his passport and is not permitted to be near an airport or the medical practice where he worked.
On 8 November 2017 the applicant was granted a BVE with instructions to report to the Department on 30 November which he complied with. The applicant then described the process that led to the cancellation of his visa and his detention, as set out in his Statutory Declaration dated 7 December 2017. The applicant said that upon being summoned to an office, he was presented with a Notice of Cancellation and as a result, he requested contact with his solicitor. The applicant’s solicitor attended and requested a few days to respond to the Notice which was not granted. The applicant claims he was advised that Departmental staff were immediately available to carry out an interview. The applicant also claims he and his solicitor informed a Departmental officer of the requirement for the applicant to report to police as part of his bail conditions, and says he was told he was free to go. He said his solicitor told the officer they would return the next day to complete the process. The applicant states that when he went to leave, he was presented with a form to sign for involuntary detention up to 4 hours. A Departmental officer left the room and then returned with a decision to cancel the applicant’s visa and transport him to Villawood Immigration Detention Centre. The applicant claims the decision was made even though his solicitor had told Departmental officers she had not finished making submissions.
The applicant stated that his visa should not have been cancelled because on 8 November 2017 the visa was granted knowing his charges existed and from 8 November until 30 November nothing new had happened. The applicant confirmed his substantive visa had been cancelled and he has sought a review of that decision. The applicant said he wants to face the charges and clear his name as he is never been convicted of anything. He said he needs to prepare his case, his bail conditions are strict and he has complied. The applicant also stated that since holding a Bridging Visa, he has been compliant and has not done anything.
The Tribunal explained to the applicant that in considering whether to cancel a Bridging E visa in this case, it is necessary for the Tribunal to take into account specified primary and secondary considerations. The applicant was then told what those considerations are and was invited to make any submissions in that regard, in addition to those he had already made. The applicant said cancellation of the visa means he is in custody with limited access to resources which is severely affecting his life and his spotless career. He also referred to his family situation, particularly his mother-in-law who is ill and the difficulty for family members to contact him in detention.
Submission of the representative – Joanne Kinslor
Ms Kinslor referred the Tribunal to the written submission in the matter. Regarding matters to be taken into account, it was claimed deprivation of liberty is very serious, and arbitrary detention is contrary to basic human rights which is a fundamental issue in this case. Ms Kinsor said the government could not detain people at whim regardless of whether a ground arises. She said there is bail, there is no risk raised by the Department, there is a Supreme Court judge who has listened to legal representatives and has made a judgement that there is no unacceptable risk to the community.
Ms Kinsor said to detain a person as a consequence of visa cancellation without established risk is arbitrary detention. The Tribunal pointed out the charges in this case are quite serious. It was submitted they are charges, allegations and that is the sum total which is why there is a criminal justice system with a presumption of innocence. It was claimed the charges themselves say nothing about the risk to the community, the applicant is not free to leave the country and his detention is not for the purposes of removal. Ms Kinsor said the applicant’s detention is contrary to the Supreme Court’s findings that he should be under strict bail conditions in the community awaiting trial. It was claimed detention subverts the criminal justice system, impairs the applicant’s ability to prepare and is not for the purpose of removal which is what makes administrative detention lawful.
On behalf of the applicant it was submitted he has a clear record, no convictions, has lived in different countries and is now in his sixties. Ms Kinsor reiterated the charges were no more than allegations and to presume otherwise was contrary to the presumption of innocence. The Tribunal noted the police had decided to charge the applicant on the basis of the allegations. Ms Kinsor said the Tribunal cannot presume what the outcome of the charges will be. Police bring charges, they may be dropped, and they may be dismissed. She said the police do not have the full story which is the role of the criminal justice system. She said there had been no opportunity for the case to put and the allegations challenged. It was not something for the Tribunal to properly engage in. The Tribunal reiterated that it was only observing that criminal charges are more than allegations. Ms Kinsor asked what was meant by more than allegations and the Tribunal observed that the characterisation of the charges by the representative seemed to suggest there had just been complaints of an informal nature.
Ms Kinsor referred to her written submission regarding administrative power not being exercised for the purpose of punishment. She said the Department had not established a case of appreciable risk to the community which would be the only basis on which a right can be taken away by the executive. There had been no suggestion by the Department that there was a failure to comply with bail conditions which are strict and therefore no risk to society. It was claimed this is supported by the witnesses who will continue to support his comply strictly with his bail conditions. She said this is not something he is required to undertake on his own.
Regarding the grounds for cancellation, Ms Kinsor said there is no dispute there are charges against the applicant but there is a dispute as to whether the ground for cancellation arises. In respect of r.2.43(1)(p), whether there is a temporal limitation in that whether it applies to charges at any point in history or whether it applies to charges that arise during the time the person holds a Bridging E Visa. Ms Kinsor stated this is not explicit in the legislation and as outlined in her written submission the provision is limited to the period in which a person holds a Bridging E visa. The Tribunal asked the representative why that should be the interpretation. Ms Kinsor said the statute is silent on the timeframe and referred to case law included in her written submission dealing with temporal limitation.
Ms Kinsor submitted it was contrary to the purpose of allowing the Department to respond to the behaviour of Bridging E visa holders and contrary to the scheme of the Act to have a cancellation ground that arises upon a person being granted a visa, that the visa would be granted for the purpose of being cancelled. It is not a construction that supports the good order of Australian society in referencing charges that arise at any point in history.
The Bridging Visa E was granted by the Department having regard to the fact of the charges and that the applicant would comply with the conditions including not to engage in criminal conduct and it is not the case that the right is available for removal without good reason and there has been no good reason raised by the Department. There is a key difference in that it is a visa cancellation process, this material that has been claimed to be non-disclosable was not in the notice of cancellation and should not be withheld while depriving a person of their liberty, and then change the case put. The Tribunal should not be upholding a decision of the Department in those circumstances. They said this is about the existence of the charges and are not interested in guilt or innocence or the facts and that was the basis upon which the cancellation was made and the decision should be overturned.
Evidence of the witness – Dr Shamsuddin
The witness said he has known the applicant since 1977 when they studied together. He said the applicant was honest, gentle, polite and straightforward. They were also colleagues until 1982 when the witness left to work in Iran; however, he said they maintained contact. The witness then returned to Bangladesh and worked as a GP for 5 years. They both then moved to New Zealand and lived near each other where their sons and wives were also friends. Dr Ali said the applicant was involved in an Iqra in New Zealand, that is, a study group teaching religion and involving different members of the Islamic community. The applicant was said to be well respected, a man of principle and lawful. The witness said the applicant was instrumental in setting up a medical organisation for overseas doctors in New Zealand.
Dr Shamsuddin said in 2007 he came to Australia and worked in Wodonga and then Mildura. He said he encouraged the applicant to come to Australia as well and in 2016 he did. The witness said he was shocked when he heard the applicant had been charged and has personally provided $40,000 in financial support. He said he believes the applicant will prove himself to be innocent. The witness said the applicant strictly follows his bail conditions and wants to express to the court that he is innocent. Dr Shamsuddin asked that the applicant be given time to build his case and that in 40 years, he never saw anything bad. He also referred to the applicant’s wife and son being overseas and the applicant being alone.
Evidence of the witness - Dr Akm Nazrul Islam
Dr Islam said he studied with the applicant and has known him since 1978. He said the applicant is soft-hearted and a gentleman who knows how to communicate with men and women. The witness said he has known the applicant as a close family friend in New Zealand and Australia and is shocked about his visa cancellation. Dr Islam said he respects the Australian legal system; he expects there to be justice and hopes the applicant will be freed.
Evidence of the witness - Rajah Ali
The witness said he has been a friend of the applicant for 15 years and knew him in New Zealand. The applicant has been living in a flat at the same address as Mr Ali and they socialise together. The witness said he was asked to attend court and sign documents for the applicant’s bond which he did. According to Mr Ali, the applicant’s character does not match his case and lots of friends and doctors have offered their support.
Mr Ali said he always complies with bail conditions and the witness accompanies him as he is named on the bail conditions. He said the applicant is law abiding and they want to face whatever comes. The witness also referred to the applicant having been in the process of buying a house which he had to cancel and also having a sick, elderly mother-in-law. It was claimed the applicant’s family rely on him and he will do what he can to help in future.
Dr Syed Saifuddin Ahmad
The witness told the Tribunal he was a classmate of the applicant in medical school and they knew each other since 1976. He said the applicant is the same now as then in that he is polite and caring irrespective of culture, gender or religion. The witness went to Iran to work before returning to Bangladesh and then going to New Zealand in 1996, where the applicant also went to live a few months later. Dr Ahmad said the applicant was actively involved in an association for overseas doctors who worked with the government regarding a training program. Dr Ahmad said the applicant was also involved in social activities.
The witness migrated to Australia and when the applicant came as well, he lived with Dr Ahmad and is considered as close as a brother. It was claimed the applicant passed exams and a tough vetting program to be able to work here. Then when his issues came up, Dr Ahmad said it broke his heart. The witness said a colleague had asked his wife who had worked with the applicant about him and she said he is very professional.
Representative’s written submission
The applicant’s representative made written submissions regarding the cancellation of the applicant’s BVE as follows:
·     The cancellation process by the Department was unfair and unreasonable as the applicant was denied a fair opportunity to present a response to the Notice of Intention to Consider Cancellation;
· The applicant was told he was free to go after the interview with the Department was suspended but was held for questioning in contravention of s.192(2) of the Migration Act;
·     The applicant disputes the grounds for cancellation arise in his case because the charges were not laid at a time when he was the holder of a BVE;
·     As the legislation does not specify the time within which the charges must be laid, so as not to interfere with individual rights and liberties the preferable construction is that the grounds for cancellation arise where charges arise while a person holds a BVE;
·     There should be a temporal limitation in this case because the purpose of the grounds for cancellation is to respond to the conduct of non-citizens holding BVEs rather than a power to remove properly granted visa entitlements and the detention of visa holders;
·     The construction by the Minister creates harsh and absurd consequences;
·     The text of the cancellation ground refers only to BVE holders and gives rise to a temporal limitation such that only charges arising during the time the non-citizen holds a BVE would give rise to the ground;
·     The exercise of the discretion whether to cancel the applicant’s BVE should be exercised reasonably and according to law;
·     The applicant’s BVE was granted to allow him to remain lawfully in Australia while the decision to cancel his Subclass TY444 visa is reviewed and after consideration was given as to whether he would abide by conditions of the visa including not to engage in criminal conduct;
·     It is not fair or just to remove an entitlement properly given where there has been no change in circumstances, no false basis for the grant and no new information;
·     Where a person has been granted bail it is inappropriate, unjust and unreasonable to deprive them of their liberty on the basis of outstanding charges and to affirm cancellation of the applicant’s BVE would prolong his arbitrary detention contrary to human rights obligations;
·     The Tribunal should be persuaded by the judgement of the NSW judicial system that the applicant does not pose an unacceptable risk to the Australian community;
·     The applicant is not free to leave Australia and has surrendered his passport therefore his detention is not for the purpose of removal; he cannot bring his detention to an end by seeking removal which is critical in distinguishing lawful administrative detention from unlawful imprisonment;
·     The applicant’s charges do not establish that he engaged in criminal conduct and the Department relied only on the existence of charges which did not establish risk to the Australian community;
·     Since the Department allowed the applicant to remain in the community after his Subclass TY444 visa was cancelled on 16 October 2017 they did not consider him a risk to the Australian community;
·     The applicant is subject to onerous bail conditions set by the Supreme Court of New South Wales after an assessment that he would abide by those conditions and the he has the support of a large number of witnesses who have contributed financially to his bail security;
·     In the absence of evidence demonstrating the applicant will not abide by bail conditions it is not open to find that his detention is for the protection of the Australian community;
·     The applicant’s detention impedes his ability to prepare his defence to criminal charges and potentially undermines the ability of the criminal justice system to afford him a fair trial.

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
s.116(1)(g) - prescribed ground
A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(p)(ii) is relevant. The regulation states:
For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(p) in the case of the holder of a Subclass 050 Bridging (General)) visa … that the Minister is satisfied that the holder:
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country…
The Tribunal has considered the evidence in relation to whether the grounds for cancellation arise in this case. The applicant has been charged with offences against the law of the state of New South Wales. Having considered the context and purpose of the regulation, the Tribunal is satisfied the wording is clear and unambiguous.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
In considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
The Tribunal has considered the submissions made regarding the cancellation process carried out by the Department and the applicant’s claims that it was unfair and unreasonable. The Tribunal places some weight on the applicant’s account of the events that took place during the meeting with Departmental officers, however the applicant has been given the opportunity to make submissions and present arguments to the Tribunal as to why he believes his visa should not be cancelled.
Regarding the applicant’s claim that he was held for questioning in contravention of s.192(2) of the Migration Act, the Tribunal is unable to give weight to this claim as it is unable to determine what the officer of the Department reasonably suspected would occur if the applicant was not detained.
The applicant has claimed that the grounds for cancellation do not arise in his case because the charges were laid at a time when he was not the holder of a BVE. It was submitted that there should be a temporal limitation to the cancellation ground so that only charges arising during the time the non-citizen holds a BVE would give rise to the grounds. The Tribunal has considered the representative’s submissions but places no weight on the claim because, as the applicant has acknowledged, s.116 of the Migration Act and r.2.43(1)(p) of the Regulations do not specify the time within which the charges must be laid.
During the hearing the applicant’s representative stated there was no issue of risk raised by the Department, and the Supreme Court has listened to legal representatives and made a judgement that there is no unacceptable risk to the community. A report, Ombudsman Report into Bridging Visa Cancellations due to Criminal Charges or Convictions dated December 2016 was also submitted prior to the hearing. The report investigated Bridging visa cancellations on the basis of a criminal charge, conviction, or the possibility that the person poses a threat to the Australian community. The report was particularly concerned with people who are detained based on allegations that lead to criminal charges and detainees who are not released once the criminal charges against them have been resolved. Based on a case study, the report states that “even where the charges are for a serious matter such as sexual assault, the Department is acting prematurely when deciding to detain that person, who was granted bail by the court, as they remain innocent until proven guilty”. The Tribunal case study referred to a case where charges were dropped against a person in detention. In the Department’s response to the report, also submitted to the Tribunal, it was stated: “Regulation 2.43(1)(p) cancellation grounds are enlivened with the laying of criminal charges. Decisions to cancel visas are made independently of any judicial process, including bail application.” The Tribunal considers the Department’s approach to be reasonable because in granting bail to a defendant, the courts take into account a wide range of matters that may not be relevant in migration matters. Submissions were made regarding the applicant’s strict bail conditions that he has so far complied with and the fact he has the personal and financial support of a large number of witnesses. The Tribunal places some weight on the applicant’s evidence in this regard but also finds the strict bail conditions indicate the serious nature of the charges against him. The Tribunal has considered the evidence presented in the applicant’s case including his particular circumstances, the seriousness of the charges against him and risk to the Australian community in making a decision.
The Tribunal was asked to consider that the applicant is not free to leave Australia, his detention was not for the purpose of removal and he is unable to end his detention by seeking removal. The Tribunal agrees the applicant is not in a position where he can agree to leave Australia and he was not detained for the purpose of removing him. The Tribunal places some weight on this claim in his favour; however, the Tribunal does not consider the detention to be ‘at whim’ or arbitrary. This is because a non-citizen’s period of detention is generally for a limited time pending the occurrence of a particular event. The applicant will have the opportunity to defend himself on the criminal charges and there will be a resolution in his case.
It was claimed the applicant’s charges do not establish that he engaged in criminal conduct and the Department relied on the existence of charges rather than any established risk to the Australian community. The Tribunal has not presumed the outcome of the criminal charges against the applicant in exercising its discretion and has considered the risk to the Australian community in its decision. The Tribunal agrees the Department relied on the applicant’s criminal charges in cancelling his BVE but as already stated, the Tribunal considers the relevant provisions are clear and cancellation of a visa is appropriate once a person has been charged with an offence, in this case, against a law of the State of New South Wales.
The applicant claimed his detention impedes his ability to prepare his defence to criminal charges and potentially undermines the ability of the criminal justice system to afford him a fair trial. The Tribunal places no weight on this claim because the applicant is able to communicate with his legal representatives and has not demonstrated how his detention would undermine his right to a fair trial.
The Tribunal has taken into account the evidence provided by the witnesses who attended the Tribunal hearing and gave statutory declarations in support of the applicant. The Tribunal accepts the witnesses are long term friends and colleagues who hold the applicant in high regard professionally and personally. The Tribunal is only able to give these witness statements limited weight in favour of the applicant because all the witnesses were of the same gender and similar age and background to the applicant and for this reason, they would not have been able to comment on relevant aspects of his character. The Tribunal also considered and gave some weight in the applicant’s favour to the character references from Hon Matthew Robson dated 2 May and 24 July 2017.
The applicant provided International Police Reports from Bangladesh, Iran and New Zealand to demonstrate that there is no disclosable court outcomes recorded against his name in those countries. The Tribunal accepts this is the case and has only relied only the fact the applicant has been charged with offences against the laws of New South Wales.
Assessment
The applicant is a New Zealand citizen of Bangladeshi origin who is 61 years old. He came to Australia in January 2016 as the holder of a Subclass TY444 visa and had been practicing medicine until he was charged with criminal offences. The applicant’s wife and adult son are in New Zealand caring for the applicant’s mother-in-law who is seriously ill. He is no longer able to work and until his BVE was cancelled, had been living in the community under strict bail conditions.
The Tribunal has considered the applicant’s circumstances and the claims made regarding cancellation of his BVE. The applicant does not have any children under the age of 18 in Australia who would be affected by the cancellation. Regarding the impact of a decision to cancel the visa on the family unit, the applicant said his mother-in-law is very ill in New Zealand and his family, who have remained there to provide care face difficulty contacting him in detention. The Tribunal places minimal weight on this claim because the applicant’s wife and son stayed in New Zealand while the applicant had been living in Australia in accommodation rented from a friend. It appears they had not been living as a family unit previously. Although contact may be more difficult than when the applicant was living in the community, the Tribunal is satisfied the applicant would not be prevented from communicating with his family.
The applicant made submissions regarding the degree of hardship that he claims he would experience if the visa is cancelled, also the circumstances in which the ground for cancellation arose, the possible consequences of cancellation and other relevant considerations which the Tribunal has taken into account in its decision. The Tribunal is not satisfied that the applicant’s claims outweigh the primary consideration in deciding whether to cancel a BVE which is the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation. The Tribunal has considered the applicant’s non-compliance and the submissions and arguments made in his case. The Tribunal is satisfied the applicant is a possible risk to Australian community and in weighing all the circumstances concludes that the visa should be cancelled.
Other matters
During the hearing, the Tribunal referred the applicant to a Certificate issued by the Department under s.376 of the Migration Act regarding the Tribunal’s discretion to disclose certain information. The Certificate notified the Tribunal that disclosure of the material to which the document referred would be contrary to the public interest because it may be contrary to the interest of a third party. The applicant’s representative provided a written submission on 8 December 2017 in response to an invitation to comment. The submission states that the Tribunal should not take the information into account because it was not put to the applicant before his visa was cancelled or alternatively, the Tribunal should not give any weight to the material. The Tribunal agrees that the material does not assist the Tribunal in the exercise of its powers and has not considered it in the decision.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Wendy Banfield
Member

[2017] AATA 2787

18 December 2017

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Immigration

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