Ganehi Arachchilage (Migration) - [2018] AATA 2519

Ganehi Arachchilage (Migration) [2018] AATA 2519 (7 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muditha Lankathilaka Ganehiarchchi Ganehi Arachchilage
CASE NUMBER:  1724383
HOME AFFAIRS REFERENCE(S):         BCC2017/2957311
MEMBER:L. Hawas
DATE:7 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 07 June 2018 at 3:34pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the presence of the applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community – Where the applicant has been charged with knowingly possess child abuse material – Consideration of risk - Serious nature of charge – Laying of charge infers a sufficient degree of risk – Whether the discretion to cancel should be exercised – Degree of hardship if visa were to be cancelled – Degree of risk outweighs degree of hardship – Decision affirmed
LEGISLATION
Crimes Act 1958 (Vic), ss 51G, 51T
Crimes Amendment (Sexual Offences) Act 2016 (Vic), s 70
Migration Act 1958 (Cth), ss 48, 116, 349
Migration Regulations 1994 (Cth), r 2.12, Schedule 4, PIC 4013(3)
CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
DPP v Kear [2006] NSWSC 1145
Gong v Minister for Immigration & Anor (2016) 309 FLR 151
He Kaw Teh v R (1985) 157 CLR 523
McCalla v R (1988) 87 Cr App R 372
Minister for Multicultural Affairs v Rajalingam [1999] FCA 719
MZAJA v Minister for Immigration & Anor [2017] FCCA 448
Police v Kennedy (1998) 71 SASR 175
R v Atkins [2000] 2 Cr App R 248
R v Bowden [2000] 2 All ER 418
R v Smith [2003] 1 Cr App R 13
R v Wescott Vic CC 26/5/2005
Re Drake (No. 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Singh (Migration) [2017] AATA 850
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
Summary

The applicant is a 23-year-old single man from Sri Lanka. He arrived in Australia on 23 February 2016.[1] He came to Australia on a TU 573 Higher Education Sector student visa, which the department had granted to him on 17 February 2016.[2] He came to Australia on the grounds that he would study for the Foundation Course in Engineering at La Trobe University. He commenced that course upon arriving in Australia but he did not complete the course. He transferred to other study.[3] But for its cancellation, the applicant’s visa would have expired on 15 March 2021.[4]
[1] Delegate’s decision dated 3 October 2017 at page 1. The applicant gave the Tribunal a copy of the delegate’s decision in this review.
[2] Delegate’s decision at page 1.
[3] Delegate’s decision at page 1 and the applicant’s evidence at the hearing.
[4] Delegate’s decision at page 1.
On 16 August 2017, the department was notified that the Victorian Police had charged the applicant with knowingly possessing child abuse material. The relevant material was located on the applicant’s mobile phone. The material included images of children under eighteen years of age engaged in sexual activity and depicted in an indecent and sexual manner and context.[5]
[5] Delegate’s decision page 2.
By a written decision dated 3 October 2017, the delegate cancelled the applicant’s visa under s. 116(1)(e)(i) of the Migration Act 1958 (Act). The delegate was satisfied that the charge enlivened the power to cancel the applicant’s visa under that section, and the delegate concluded that the proper exercise of his discretion favoured cancelling the visa.
On 9 October 2017, the applicant applied to this Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 8 February 2018 to give evidence and present arguments. The hearing proceeded with the assistance of a Sinhala and English interpreter. The applicant’s solicitor represented him throughout this review including at the hearing. After the hearing, the applicant sent the Tribunal further documents for it to consider.
In this review, the Tribunal must decide whether the ground for cancellation under s. 116(1)(e)(i) has been made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled.
For the following reasons, the Tribunal:
(a)Finds the ground for cancelling the applicant’s visa under s. 116(1)(e)(i) has been made out;
(b)Considers the proper exercise of its discretion favours cancelling the applicant’s visa; and
(c)Affirms the delegate’s decision to cancel.
The charge against the applicant and the evidence before the Tribunal about the charge
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The applicant’s defence to the charge and arguments on risk
The applicant’s solicitor sent the Tribunal detailed written submissions dated February 2018 that addressed the applicant’s defence to the charge and the bearing that has on this review. Those submissions repeated, and in places supplemented, the solicitor’s written response dated 27 September 2017 (given on the applicant’s behalf) to the department’s notice dated 6 September 2017 of intention to cancel his visa. The Tribunal has considered the substance of both those documents.
Section 51G(1) of the CA, under which the applicant has been charged, provides that a person commits an offence if he/she knowingly possesses child abuse material. Section 51(g)(2) provides that the offence carries a maximum sentence of 10 years in prison.
The applicant submitted to the Tribunal the judge’s bench notes published by the Judicial College of Victoria, which were said to be relevant to the operation of s. 51G of the CA. The bench notes are published on the Judicial College’s website.[15] The bench notes refer to the old s. 70 of the CA. Section 51G is one of a series of sections that succeeded the old s. 70.[16] The bench notes summarise the law relevant to the old s. 70 and the new s. 51G. The bench notes provide that:
(a)Intention is an element of the offence that the prosecution must prove beyond reasonable doubt. A person will generally not have an intention to possess material that is automatically downloaded from the internet onto his or her computer;[17]
(b)This may occur due to the way in which the internet works. When a computer user views an image on the internet, that image will automatically be copied to a "temporary Internet cache", where it will remain until the user deletes it, or until the computer overwrites the image after a certain period of time. If a particular user is unaware of the existence and operation of this cache, he or she cannot be said to intentionally possess the images stored there;[18]
(c)A person will therefore generally not be guilty of possession of child pornography if s/he simply browses internet sites which contain pornographic images. S/he must intend to possess those images;[19]
(d)It has not yet been determined in Victoria precisely what the accused must have known about the material in his or her custody or control;
(e)It appears likely that the accused will have to have known, or been aware that it was likely, that s/he possessed pornographic images of a minor;[20] and
(f)It will be sufficient for the prosecution to prove that the accused once knew that s/he had the relevant material in his or her possession, even if s/he had forgotten about it. This is because a person continues to possess an object s/he has taken possession of, until s/he does something to rid him/herself of it.[21]
[15] Section 18 of the Crimes Amendment (Sexual Offences) Act 2016 repealed section 70. Under that act, a series of sections replaced the old s. 70 including s. 51G.
[17] R v Wescott Vic CC 26/5/2005; R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145)
[18] (R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145)
[19] R v Wescott Vic CC 26/5/2005
[20] He Kaw Teh v R (1985) 157 CLR 523
[21] Police v Kennedy (1998) 71 SASR 175; McCalla v R (1988) 87 Cr App R 372
Further, in his defence at trial, the applicant will rely on s. 51T of the CA. That section provides a defence to a charge under s. 51G(1) if the accused proves on the balance of probabilities that he did not intentionally come into possession of child abuse material, and on becoming aware of having possession of such material, the accused took all reasonable steps to cease possessing the material as soon as practicable. The accused need only prove this defence on the lower civil standard of proof: the balance of probabilities.
Although not articulated precisely in the solicitor’s submissions, the applicant’s defence at trial appears to have several factual planks, which focus on the knowledge and intent elements of the offence under s. 51G and the positive defence under s. 51T.
[Information removed].
In this review, the applicant argues that at trial, the prosecution will not, or will struggle to, prove beyond reasonable doubt that the applicant intended to, and knowingly, possessed the relevant images and videos, and that he committed an offence under s. 51G of the CA. The applicant also has a good defence under s. 51T. Those matters are said to be relevant to whether the applicant constitutes a potential or actual risk under s. 116(1)(e)(i) of the Act. The applicant argues that it would not be fair to cancel his visa under s. 116(1)(e)(i) on the grounds of a single charge that the prosecution will struggle to prove.
The relevant law in this review
Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those include the ground set out in s.116(1)(e)(i). 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.
Section 116(1)(e)(i) of the Act provides that, subject to subsections (2) and (3) (which for present purposes are not relevant), the Minister may cancel a visa if satisfied that the presence of the holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
The Act does not define ‘risk’ in s. 116(1)(e) so it must be given its ordinary English meaning. The Shorter Oxford Dictionary defines risk as ‘endanger, put at risk, expose to chance of injury or loss’.[22] That entails an element of what might occur in the future or futurity.[23]
[22] Shorter Oxford Dictionary, 6^th ed, 2007.
[23] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [41] per Judge Smith.
The futurity element in s. 116(1)(e) is reinforced by the section’s reference to whether the person’s presence ‘may’ or ‘might’ be a risk. Again, those words are not defined in the Act. They have their ordinary English meaning, which is the same for both words: ‘An instance of what is expressed by the auxiliary verb may/might: a possibility’.[24]
[24] Shorter Oxford Dictionary, 6^th ed, 2007.
Section 116(1)(e) distinguishes between a potential or possible risk (‘may’ or ‘might’), and an actual risk (‘is’ or ‘would’).[25] The section has two limbs: ‘is or may be’ a risk and ‘would or might be’ a risk. The first limb (‘is or may be’) is addressed to circumstances where the applicant is present in Australia and the second limb (‘would or might be’) is addressed to the circumstances where the applicant is outside of Australia.[26]
[25] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [41] per Judge Smith.
[26] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [41] per Judge Smith.
Whether a person ‘may’ or ‘might’ be a risk within the meaning of those terms in s.116(1)(e)(i) does not require any direct, solid, or certain foundation before the cancellation power can arise. It can arise on the possibility that some event occurred in the past.[27] Where s.116(1)(e)(i) asks whether there ‘may be a risk’, the possibility that the relevant event occurred in the past may have some logical bearing on whether it might happen in the future, and whether the person may be a risk.[28] Where the risk is said to follow from the laying of a charge or charges, it is open to the Tribunal to infer (depending on the evidence before it) that in laying charges, the police considered there to be a case for the accused to answer. [29] Such an inference informs whether the events alleged to give rise to the risk – being the substance of the charges – may have occurred, and whether if follows that the applicant is or may now be a risk within the meaning of s.116(1)(e)(i).[30]
[27] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [41] per Judge Smith.
[28] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [51] per Judge Smith.
[29] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [54] per Judge Smith.
[30] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [51] per Judge Smith. Also, Singh (Migration) [2017] AATA 850 at [60] and [61] per Logan J.
Where the risk is said to arise from charges that yet to be tested at trial, the Tribunal faces a difficult task in assessing the weight to give the charges in a review. The seriousness of the charges and the conduct alleged will often inform the weight to be given. Generally, the more serious the charge and the conduct alleged, the more weight they ought to be given in a review such as this one.[31]
[31] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [51] per Judge Smith and his Honour’s reference to the ‘what if I am wrong test’. The court explained the logic of the test in Minister for Multicultural Affairs v Rajalingam [1999] FCA 719 at [62]. There Sackville, North, and Kenny JJ stated ‘depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a ‘real and substantial basis’ for the applicant’s claimed fear of persecution’. Also, Singh (Migration) [2017] AATA 850 at [60] and [61] per Logan J.
Where an applicant’s visa is cancelled on criminal charges that are yet to be determined, the risk to the Australian community within the meaning in s.116(1)(e)(i) should not be confused with guilt or innocence. In that instance, the Tribunal’s task is not to determine guilt or innocence but to assess the risk the visa holder presents to the community based on the evidence before it. Risk does not necessarily equate to guilt or innocence.[32]
[32] MZAJA v Minister for Immigration & Anor [2017] FCCA 448 at 15 per Judge Riethmuller.
When reviewing ministerial or administrative cancellation decisions, the Tribunal should analyse the substance of the decision under review and whether the relevant legislative power under which the cancellation decision was grounded contains a temporal element. The analysis is necessary to identify whether the Tribunal is to consider the circumstances prevailing before it at the time of the review, or whether it is to consider the circumstances prevailing at some earlier time.[33]
[33] See Shi v Migration Agents Registration Authority [2008] HCA 31.
Section 349 of the Act regulates this review. Section 349(2) sets out the Tribunal’s powers. That sub-section gives the Tribunal wide powers including powers to vary the delegate’s decision or set aside the decision and substitute a fresh one. Given those powers to vary or make a fresh decision, the Tribunal considers the section to contemplate it taking into account the circumstances before it at the time of the review. The Tribunal is not limited to the circumstances before the delegate at the time of his decision.[34]
[34] In Shi v Migration Agents Registration Authority [2008] HCA 31 the High Court considered s.43(1) of the Administrative Appeal Tribunal Act 1975 and concluded that the Tribunal had to take into account the circumstances prevailing at the time of its decision. Section 349(2) of the Act is in similar terms to s.43(1) of the AAT Act. The High Court’s findings apply to s. 349(2) by parity of reasoning.
The terms of s. 116(1)(e) of the Act reinforce that finding. The section provides that the cancellation power is enlivened if the decision maker is satisfied the visa holder may be, would, or might be a risk. Those words contemplate that circumstances could be altered by intervening events and invites consideration of the factual matters at the time of the Tribunal’s decision.[35] The wording of the section does not contain a temporal element that confines the Tribunal’s consideration to the circumstances that existed at the time of the delegate’s decision.
[35] Compare Shi v Migration Agents Registration Authority [2008] HCA 31 at [49] per Kirby J.
Accordingly, in determining whether the cancellation power has been enlivened under s. 116(1)(e)(i), the Tribunal must assess the circumstances existing before it at the time of its decision. That is also the time at which it must assess the proper exercise of its discretion.
Does the ground for cancellation exist?
The Victorian Police have charged the applicant with knowingly possessing child abuse material under s. 51G of the CA. The applicant is alleged to have had on his phone 38 images, and four videos, of children engaged in sexual activity, including one video of a man engaged in sexual intercourse with a girl aged about three.
The evidence before the Tribunal about the contents of the applicant’s phone is somewhat uncertain. It is plain enough what the police allege was contained on the phone. But it is not clear to the Tribunal whether the images and videos were stored on the applicant’s phone such that they could be viewed quickly by opening the relevant application (such as a photographs application), or whether the images and videos had been deleted and the police had to retrieve them. If the former, the prosecution’s prospects of proving the offence at trial are probably enhanced. If the latter, given the matters set out in paragraphs 25 to 28 above, when and how the images and videos were downloaded or transferred to the phone and when they were deleted would seem to be relevant to the knowledge and intent elements of the offence under s. 51G of the CA. The Tribunal accepts that, given the matters set out in paragraphs 25 to 28 above, the prosecution might not prove the necessary knowledge and intent elements at trial, and it might not prove the applicant committed the alleged offence under s. 51G. The Tribunal also accepts that the applicant might avail himself of the defence under s. 51G. The Tribunal notes the potential evidentiary issues the prosecution might encounter at trial.
But the Tribunal’s task in this review is not to determine the applicant’s guilt or innocence. It is not required to assess in detail the prosecution’s chance of proving the offence at trial. The Tribunal must determine whether, on the evidence before it, the applicant constitutes the relevant risk under s. 116(1)(e)(i) of the Act and, if so, whether his visa should be cancelled as a matter of discretion. That the prosecution might encounter difficulty proving at trial that the applicant committed an offence under s. 51G of the CA, or that the applicant might establish a defence to the charge under s. 51T, does not result in the cancellation ground under s. 116(1)(e)(i) being avoided. Those matters are more relevant to the Tribunal’s discretion, which is considered below.

The Tribunal notes that the Victorian Police examined and investigated the contents of the applicant’s phone before charging him. They went to the trouble of having a forensic digital analyst examine the applicant’s phone and prepare a report on its contents. They have charged the applicant with knowing possession under s. 51G of the CA, and as things stand now they a pressing the charge.
The Tribunal infers from those matters that the Victorian Police consider the evidence against the applicant to be sufficiently probative to have justified charging him with the offence, and to justify proceeding on the charge. The Tribunal also infers that the police consider the applicant to have a case to answer on the charge. Further, the Tribunal infers that the police (or the relevant prosecuting authority) consider that on the evidence they have, there is a prospect of proving the charge against the applicant on the criminal standard: beyond reasonable doubt. That an independent and authoritative body such as the Victorian Police investigated the applicant, obtained a forensic report on the contents of his phone, and now continue to press the charge against him carries substantial weight with the Tribunal. The Tribunal does not know what is contained in the report of the forensic digital analyst and does not draw any inference about the likely contents. The Tribunal acts only on the police proceeding with the charge having obtained the report. On those grounds, the Tribunal finds that the applicant may have knowingly possessed the 38 images and four videos as alleged, and that he may have committed the alleged offence under s. 51G of the CA.
As a matter of logic, a person’s past behaviour points to how that person will or might behave in future. That informs whether the person may be a risk now and in the future.[36] Given the charge against the applicant, the Tribunal considers the potential risk he may constitute here to have two dimensions. First, he may seek out or knowingly possess child pornography in future. Second, his possible knowing possession of child pornography now (as the police allege) gives rise to a risk that he may have abused children in the past, or a risk that he may do so in future.
[36] See [35] above and the authorities cited there.
The first dimension is plain enough. If the applicant knowingly possessed the 38 images and four videos the police allege, there may be a risk that he will seek out or knowingly possess similar material in future. That follows as a matter of logic as the authorities make plain.[37]
[37] Some research suggests the risk of people possessing child pornography reoffending can be low but there remains a risk all the same. See >
The second dimension is more contentious. There exists a credible body of evidence based academic research that argues a correlation between traders and viewers of child pornography and physical acts of child molestation. The thesis goes that those who collect and disseminate child pornography are more likely to molest an actual child.[38]
[38] Seto, M. C., Cantor, J. M., & Blanchard, R. (2006). Child pornography offenses are a valid diagnostic indicator of paedophilia. Journal of Abnormal Psychology, 115, U.S.A. 610–615; and as some examples.
At page 2 of his decision, the delegate stated that ‘academic research suggests that there is a link between the use of child exploitation material by a person and a heightened risk of that person engaging in child sex offences’. The delegate did not cite any authority for that statement. In written submissions, the applicant’s solicitor criticised the delegate’s finding in that point as lacking authority and substance. But plainly there exists academic research supporting the delegate’s finding.
But the research findings are not unanimous. Some academics challenge the thesis that there exists a correlation between collecting and viewing child pornography and physically molesting children.[39]
[39] and >
The Tribunal need not express a preference for one side of the debate in this review. It is sufficient for it to note the content of credible academic research to the effect that a person who is found to have viewed or disseminated child pornography is more likely to have committed, or more likely in future to commit, acts of physical child sex abuse. There exists evidence of a link between the two such that the person in question constitutes a heightened risk to children.
Applying that logic to the evidence before the Tribunal, the police allege the applicant possessed numerous images and videos of children engaged in sexual activity including a video of a man with a girl about three years old. The applicant may have possessed the images and videos as alleged. If he did, there is a risk that he may collect and view images and videos of child pornography in future. Further, given the matters set out in paragraphs 49 and 52 above, there exists a risk that the applicant may have molested children in the past or may go on to do so in future.
On those grounds, the Tribunal finds that the applicant’s presence in Australia may be a risk to the Australian community or a segment of it (the relevant segment is assessed below) within the meaning of that word in s.116(1)(e)(i). The Tribunal considers the applicant to constitute a potential risk (may be a risk), not an actual risk (is a risk).
The Tribunal stresses that it does not find that the applicant has committed acts of physical child sex abuse in the past, or that he will do so in future. The Tribunal only assesses the risk the applicant may represent to the Australian community given the evidence before it.
Section 116(1)(e)(i) refers to a risk to the Australian community or a segment of the Australian community. Insofar as the section required the delegate to identify the relevant segment of the Australian community at risk (or potential risk), the delegate found that the applicant may be a risk to the safety of children. The Tribunal agrees with that finding.
The Tribunal finds that the applicant’s presence in Australia may be a risk to the safety of children in two ways.
First, demand for child pornography supports the exploitation of children. Children are necessarily exploited to produce the pornographic images and videos to satisfy the demand. Accordingly, distributors, collectors, and viewers of child pornography support (at least indirectly) the exploitation of children. They create, or participate in, the demand for a product whose production requires children to be exploited. On that logic, if the applicant knowingly possessed pornographic images and videos of children as alleged, he would have participated in the demand for such images and videos, and by doing so supported (at least indirectly) the exploitation of children. If the applicant continues to be a consumer of pornographic images and videos of children (assuming he was a consumer in the past) while in Australia, he will contribute to the future demand for such images and videos, and continue to support (at least indirectly) the exploitation of children. On that ground, the applicant’s presence in Australia may constitute a risk to the safety of children.
Second, for the reasons set out in paragraphs 49 and 52 above, if the applicant did knowingly possess the child pornography alleged, there may be a risk that he has molested children in the past or that he may go on to do so in future. Credible academic research supports that link. The applicant’s presence in Australia may be a risk to the safety of Australian children on that further ground.
For the reasons set out above under this heading, the Tribunal finds that the applicant’s presence in Australia may be a risk to the safety of Australian children. The ground for cancelling the applicant’s visa under s.116(1)(e)(i) of the Act has been made out.
As that ground does not require mandatory cancellation of the applicant’s visa under s.116(3) of the Act, the Tribunal must proceed to consider whether, as a matter of discretion, the power to cancel the visa should be exercised.
The discretion
The Act and the Migration Regulations 1994 (Regulations) do not prescribe the matters to be considered in the exercise of the discretion to cancel a visa. The discretion is to be guided by having regard to all the relevant circumstances. The Tribunal may have regard to matters of government policy such as the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. But the Tribunal is not bound to follow PAM3, and it can have regard to a matter outside of PAM3 so long as the matter is relevant.[40] However, PAM3 constitutes a useful reference point for the exercise of the discretion.
The purpose of the applicant’s travel to and stay in Australia
[40] See Brennan J in Re Drake (No. 2) (1979) 2 ALD 634. The courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they should not be elevated into legally necessary or relevant considerations. The policy guidelines in PAM3 cannot go beyond the wording of the legislation, even when they are favourable to the applicant. See for example Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459.
The applicant came to Australia on his student visa on 23 February 2016. Although he came to Australia to study for the Foundation Course in Engineering at La Trobe University, he did not complete that course. He struggled with the course and failed some of the subjects. He ceased his study in that course and enrolled in a Certificate IV in Business Administration at the Baxter Institute. He completed that course at the end of February 2017. Subsequently, he enrolled in an Advanced Higher Diploma in Business at Stotts College or Acknowledge Education.[41] But he did not commence the course. He was kidnapped by the broker and his associates at around the time he was to commence study. He was severely traumatised by the kidnapping and displayed symptoms of chronic post-traumatic stress disorder. His condition interfered with his ability to study and he deferred his study at Stotts to October 2017.[42]
[41] Applicant’s letter to the applicant to ‘Lorretta’, a visa cancellations officer in the department.
[42] Undated letter from Each Social and Community Health to Australian Border Force; letter from Victoria Police to Department of Immigration dated 13 July 2017; letter from Dr Poznaski of Liberty Avenue Psychology Services to Department of immigration dated 11 September 2017. The applicant submitted those documents to the Tribunal.
At the hearing, the applicant stated that he wanted to stay in Australia to defend the charge against him and to continue his studies.
In this review, the Tribunal does not hold against the applicant his failure to undertake any study since early 2017. The Tribunal accepts that his ability to study was impeded by the kidnapping incident and the effect the incident had on him.
If the applicant is true to his expressed intent and he resumes his proposed study, the purpose of his travel to and stay in Australia on a student visa will remain intact. The Tribunal weighs that in his favour.
Circumstances in which the ground for cancellation arose
The cancellation power under s.116(1)(e)(i) was enlivened when the Victorian Police charged the applicant under s. 51G of the CA with possessing child pornography.
In this review, the Tribunal is not tasked with deciding whether the applicant is guilty or innocent of the charge. In any event, it does not have sufficient evidence before it to decide the matter. Accordingly, it is not able to assess whether in fact the applicant controlled the circumstances in which the cancellation arose.
The Tribunal considers this consideration to be neutral in this review.
Extent of compliance with visa conditions and co-operation with the department
The applicant has only ever lived in Australia under his student visa. He has lived here on that visa since February 2016.
The applicant did not complete his Foundation in Engineering course at La Trobe University being the course he came to Australia to pursue. He ultimately transferred to study for an Advanced Higher Diploma in Business at Stotts College. He has explained to the department the reasons for ceasing study at La Trobe and transferring to Stotts College.[43]
[43] Letter dated 17 July 2017 the applicant sent to ‘Lorretta’, a visa cancellations officer in the department.
If the applicant breached the conditions of his student visa by ceasing study at La Trobe University, the department did not cancel his visa for that reason. Accordingly, the Tribunal does not hold the applicant terminating his studies at La Trobe University against him in this review even if that constituted a technical breach of his visa conditions.
If the applicant has breached the conditions of his visa by failing to undertake any study at all since early 2017, as stated in paragraph 65 above, the Tribunal accepts that the kidnapping incident impaired his ability to study and it does not weigh that against him in this review.
The extent of the applicant’s compliance with his visa conditions is neutral in this review.
There is no evidence before the Tribunal to the effect that the applicant has failed to cooperate with the department. He has always responded to department correspondence and explained his actions. The Tribunal weighs that in his favour.
Hardship caused to the applicant and his family
The applicant said that if his visa remained cancelled and he had to return to Sri Lanka he would suffer hardship. He said that if he had to return to Sri Lanka without the educational qualifications he came to Australia to complete, he will struggle to find work there. He said he was not certain that his Certificate IV in Business Administration was enough for him in Sri Lanka. He needed further Australian qualifications, preferably a degree. He said he wanted to obtain a Masters qualification in Australia. That will give him an advantage in the Sri Lankan job market.
He said also that his parents had spent a lot of money to send him to Australia to study. That money will be wasted if he must return to Sri Lanka with just a Certificate IV in Business Administration.
He said his cousin’s brother lived in Melbourne and he had an uncle here. The rest of his family is in Sri Lanka.
His cousin’s brother had a tile restoration and tile steam cleaning business. He worked with his cousin’s brother in that business. His cousin’s brother paid him $20 an hour. He worked about 14 to 15 hours per week.
The Tribunal accepts that the applicant will suffer some hardship if his visa remains cancelled and he must return to Sri Lanka without anything more than a Certificate IV in Business Administration. The Tribunal accepts that, although that qualification will not harm the applicant’s job prospects in Sri Lanka, he came to Australia to obtain a degree, and a degree will assist him in Sri Lanka more than will a Certificate IV. The Tribunal also accepts that his parents will consider the money they spent on educating the applicant in Australia to have been wasted if he returns to Sri Lanka with a Certificate IV only. The applicant weighs those matters in the applicant’s favour.
The applicant has been in Australia for over two years now. He would have developed some networks here over that time, and he has worked here and earnt a higher income than he would have in Sri Lanka. The Tribunal also weighs that in his favour.
There is no evidence before the Tribunal to the effect that the applicant’s uncle and his cousin’s brother will suffer any hardship by reason of his visa cancellation.
Whether there are others whose visas would or may be cancelled under s.140
The applicant is in Australia alone. This consideration is not relevant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s Intervention
The applicant will remain in Australia until his trial. If he does not obtain a bridging visa or a criminal justice stay visa that provide for his release into the community, he will remain in immigration detention until trial.[44] Whether the applicant remains in detention after trial will depend on whether he is convicted and receives a custodial sentence. If he receives a custodial sentence, he will come out of immigration detention and go into criminal custody to serve his sentence. Once he serves any custodial sentence, or if he is acquitted, subject to some other visa application he might make, he will likely be deported. He will not remain in indefinite detention by reason of his visa being cancelled. The Tribunal has taken those matters into account, including the consequences of his ongoing detention until trial.
[44] On 10 October 2017, the applicant applied for a bridging visa E. On 25 October 2017, the department notified the applicant that it intended to refuse his bridging visa application and it invited the applicant to comment. The applicant’s solicitor responded to the department on the applicant’s behalf. On the evidence before the Tribunal, the department is yet to make a decision on the applicant’s bridging visa application. See the written submissions of the applicant’s solicitor dated February 2018 sent to the Tribunal.
Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas for which the applicant may apply. They are not subject to the s. 48 restriction. Consequently, s. 48 limits what visa applications can be made by the applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future application actions into account.
Public Interest Criterion (PIC) 4013(3) in the Regulations provides that a person is affected by a risk factor if a visa previously held by the person is cancelled because the Minister was satisfied that a ground mentioned in s.116(1)(e) applied to the person. In that event, PIC 4013 operates by mandating that a visa application made within three years of that person’s visa being cancelled under s.116(1)(e) will be refused unless one of the stated exceptions apply.
The Tribunal has taken into account that potential restriction on the applicant’s future Australian visa applications and weighed the issue in his favour. The Tribunal does not have sufficient evidence before it to assess whether the applicant is likely to avail himself of an exception to the operation of the PIC such as compelling or compassionate circumstances justifying a further visa grant. But the Tribunal has taken into account the possibility that the applicant will not be able to make out an exception to the operation of the PIC and also weighed that in his favour.

1. 88. But to be balanced against that is the plain intent of PIC 4013 to restrict future entry into Australia by people affected with the stated risk factors. That must also be considered in this review.
Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

In considering whether to exercise its discretion to cancel the applicant’s visa, the PAM3 policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations, and to take Australia’s international obligations into account. These include the obligation in relation to non-refoulement pursuant to the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the CRC, and the ICCPR.
The Tribunal has considered Australia’s international obligations. On the evidence before it, cancelling the applicant’s visa will not place Australia in breach of those obligations.
Assessing the risk in the exercise of the Tribunal’s discretion
As stated in paragraph 36 above, the seriousness of the offence with which the applicant has been charged, and the seriousness of the conduct in which he is alleged to have engaged, informs the gravity of the potential risk the applicant’s presence in Australia represents and the weight to be given to that potential risk in this review. The strength of the evidence against the applicant will also be relevant to the gravity of the potential risk and the weight to be given to the risk.
The Tribunal is concerned about the number of images and videos the applicant is alleged to have possessed (38 images and four videos) and the alleged content of one of the videos (the video of a man with a young girl of about three years old). The Tribunal is also concerned that the Victorian Police elected to press the charge (and they continue to press the charge) after having had an expert analyse the contents of the applicant’s phone. Given those matters, and the character of the potential risk the applicant’s presence in Australia represents to the safety of Australian children as set out in paragraphs 47 to 60 above, the Tribunal considers the potential risk here to be a serious one. It weighs that heavily against the applicant in assessing how to exercise its discretion in this review.
Weighed against that is the applicant’s defence to the charge as set out in paragraphs 23 to 29 above. The Tribunal accepts it is possible that offending Viber and WhatsApp group images and videos were sent to the applicant’s phone without his knowledge, and that he deleted any suspicious images and videos immediately upon learning of them. Further, the Tribunal accepts that the police might have retrieved images and videos that were, unbeknown to the applicant, on his phone when he bought it. The Tribunal also accepts that the broker might have transferred the offending images and videos to the applicant’s phone. Ultimately, the Tribunal accepts that those matters may have a bearing on the ability of the prosecution to prove at trial the elements of the offence under s. 51G of the CA, especially knowledge and intent. The Tribunal also accepts that those matters could constitute the grounds of a defence under s. 51T. The prosecution will need to contend with those matters at trial. The Tribunal has taken those matters into account and weighed them in his favour.
The Tribunal notes also that the applicant gave the police his phone to examine voluntarily. That suggests he did not consider there to be anything on his phone to hide, and it supports his argument that he did not know that the offending images and videos were on his phone. Further, that the police did not find any unlawful images or videos of children on the applicant’s other digital devices after executing the search warrant on his home supports his argument that he did not know that the offending material was on his phone. The Tribunal has taken those matters into account and weighed them in his favour.
But the Tribunal remains concerned that, on his evidence, the applicant was for some time part of Viber or WhatsApp groups who shared images of naked children, and that he received naked images of children (or teenagers) on his phone (which he says he deleted immediately). That the police allege he told them he was aware that a Viber group to which he belonged shared pornographic images of children also concerns the Tribunal.
The Tribunal has taken into account the applicant’s explanation of what he told the informant, and his complaint about being interviewed without an interpreter.[45] At trial, the court will resolve any contest between the evidence of the informant and that of the applicant over what the applicant said in his interview, and any argument over the lawfulness and probity of the interview. It is not necessary nor possible for the Tribunal to resolve those matters in this review. The Tribunal notes only that the Victorian Police are a credible source of information, and the applicant has sought to explain the substance of the interview. The Tribunal has weighed both those matters.
[45] As set out in his affidavit affirmed on 28 February 2018.
Other matters
The applicant submitted to the Tribunal a police clearance certificate dated 27 October 2017 from Police Headquarters in Colombo, Sri Lanka. The certificate provided that the applicant has never come to the adverse attention of the Sri Lankan police. Also, the applicant has been of good behaviour during his time in Australia.
The Tribunal has taken into account the applicant’s apparent clean criminal record in Sri Lanka and Australia. But evidence of past good behaviour or good character carries little weight given the seriousness of the charge and the conduct in which the applicant is alleged to have engaged. The applicant’s clean record in Australia carries especially limited weight because he has only been here since February 2016. Although his record in Australia is clean, it is brief.
The applicant is currently in immigration detention. In the absence of a bridging visa or criminal justice stay visa, he will remain in immigration detention. While in detention, he is unlikely to constitute a potential risk to Australian children. But under s. 116(1)(e)(i), the Tribunal is required to consider whether his wider presence in Australia on his student visa constitutes an actual or potential risk to the safety of Australian children, and if so, whether his visa should be cancelled as a matter of discretion. Accordingly, the Tribunal’s assessment is not limited to the time during which the applicant awaits trial.
Conclusion on discretion
The Tribunal has considered the appropriate exercise of its discretion carefully.
The Tribunal accepts that the applicant wants ultimately to stay in Australia to continue his studies that were interrupted by his kidnapping and unlawful detention. The purpose of his travel and stay in Australia on his student visa ultimately remains in intact. The Tribunal also accepts that the cancellation of the applicant’s visa will result in some hardship to him and his parents in Sri Lanka. The Tribunal weighs those matters in his favour.
Weighed against those matters lies the gravity of the potential risk the applicant’s presence in Australia represents to the safety of Australian children. The Tribunal considers the potential risk the applicant constitutes to be a substantial one.

103. The Tribunal has also weighed various other matters both for and against the applicant as set out above.

After considering the evidence before it carefully and balancing the matters both for and against the applicant, the Tribunal has concluded that the gravity of the potential risk the applicant’s presence in Australia represents to the safety of Australian children outweighs the matters in the applicant’s favour. Those matters are not of sufficient weight to justify exposing Australian children to the potential risk the Tribunal considers the applicant to represent.
In the end, the Tribunal considers the matters in favour of cancelling the applicant’s visa outweigh the matters in favour of reinstating it by setting aside the delegate’s cancellation decision.
The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.
Decision
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
L. Hawas
Senior Member

[14] [Footnote removed].

He also gave this evidence in the hearing.