KAUTOGA (MIGRATION) - [2017] AATA 950

KAUTOGA (MIGRATION) [2017] AATA 950 (6 FEBRUARY 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607917
MEMBERS:Jan Redfern (Presiding)

Kira Raif
DATE OF DECISION:  6 February 2017
DATE CORRIGENDUM
SIGNED:23 June 2017
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:
The words ‘While the matters referred to in 52(1) and (2) weigh against cancellation, the matters referred to in 52(3) to (9) either weigh in favour of cancellation or are neutral. Of particular relevance to this case are the matters set out in 52(3), (5), (6) and (7)’ at paragraph 56 should read ‘While the matters referred to in 55(1) and (2) weigh against cancellation, the matters referred to in 55(3) to (9) either weigh in favour of cancellation or are neutral. Of particular relevance to this case are the matters set out in 55(3), (5), (6) and (7).’

Jan Redfern
Deputy President

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1607917
MEMBERS:Jan Redfern (Presiding)

Kira Raif
DATE:6 February 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 6 February 2017 at 3.00pm

CATCHWORDS
MIGRATION – Cancellation – Temporary Work (Long Stay Activity) visa – Subclass 401 – Sports Stream – Applicant charged with serious criminal offences – Visa cancelled on the grounds of breach of condition – Whether ground established – Exercise of discretion in circumstances where visa would have expired – Time of assessment

PROCEDURE – Pre-hearing directions – Non-appearance of applicant – Multiple adjourned hearings
LEGISLATION
Administrative Appeal Tribunal Act 1975 (Cth), s 43(1)
Migration Act 1958, ss 48, 116(1)(b), 140(1), 189, 198, 348, 349(2), 359A, 362B(1A)(a), 496, 499
Migration Amendment (Character and General Visa Cancellation) Act 2014 (No. 129 of 2014) Schedule 2, Item 22
Migration Regulations 1994, r 2.12, r.2.43(1)(la), r 2.72A(7)(a), r 2.72A(8)), Condition 8107, Condition 8303
Tribunals Amalgamation Act 2015 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Kim v Minister for Immigration and Citizenship [2008] FCAFC 73
Krummery v Minister for Immigration and Citizenship (2005) 147 FCR 557
Rani & Ors v MIMA (1997) 80 FCR 379
Shi v Migration Agents Registration Authority [2008] HCA 31
Tien & Ors v MIMA (1998) 89 FCR 80
Zhang v MIAC [2007] FMCA 1855
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

This is an application for review of a decision dated 2July 2014 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s subclass 401 (Temporary Work (Long Stay Activity)) visa under s.116 of the Migration Act 1958 (the Migration Act).
The delegate cancelled the visa under s.116(1)(b) the Migration Act on the basis that [the applicant] had not complied with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Migration Act, the only decision that is before the Tribunal is the decision with respect to [the] first named applicant. The visa of [name], who is [the applicant’s] wife and the second named applicant, was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Migration Act which made the cancellation of [the applicant’s wife’s] visa self-executing on the cancellation of [the applicant’s] visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to [the applicant’s wife].
The Tribunal has decided to affirm the decision under review and our reasons follow.
BACKGROUND
[The first named applicant] is a 26 year old Fijian citizen. He entered Australia in May 2013 under a subclass 401 visa in the sports stream on the basis of sponsorship by [Club 1]. On 24 December 2013, he applied for a further subclass 401 visa in the basis of sponsorship by [Club 2]. The position nomination was approved on 8 January 2014 and on 16 January 2014 [the applicant] was granted a further subclass 401 visa. The visa was subject to certain conditions, relevantly conditions 8303 (activity limitation) and 8107 (work limitation). The visa would have expired on 31 December 2015 had it not been cancelled. [The applicant’s wife] was included in the visa grant as a family member.
On 2 July 2014 [the applicant] was arrested by [the] Police and charged with two counts of sexual intercourse without consent, assault with an act of indecency and assault occasioning actual bodily harm. The charges related to three different incidents involving three women. Bail was initially refused but subsequently granted. [The applicant] pleaded not guilty to the charges [in] October 2014. He was committed to stand trial and his trial was initially listed for hearing [in] June 2015. The trial was deferred on a number of occasions, the reasons for which are not entirely clear, and [the applicant’s] criminal trial for these offences is to commence [later in] February 2017. He was in immigration detention from July 2014 which, it was submitted by his previous lawyers, inhibited the defence of his criminal trial. [The applicant] was released from immigration detention in December 2015 and has been living in the community with [his wife] since this time. According to submissions made by [the applicant’s] legal representatives, [the applicants] are living in the home of [the applicant’s wife’s] sister, who died in October 2015, leaving four children aged 16, 19, 20 and 22 years. There is also a nephew who is said to have been in the care of [the applicant’s wife’s] sister from an ‘informal adoption’ aged 6.[1] The eldest daughter, who is 22 years old, has three children including [those] born in [year].[2]
[1] Letter [in] October 2015 (with annexures) from [Company 1].
[2] Letter dated [in] September 2016 from [Company 1].
[The applicant’s] visa was cancelled by a delegate of the Minister on 2 July 2014 on the grounds that he had breached a condition of his visa, being condition 8303, which provided that [the applicant] “must not become involved in activities disruptive to or violence threatening harm to the Australian community or group within the Australian community”. The delegate was satisfied that [the applicant] had breached this condition because he had been arrested and charged with the four criminal offences. The delegate also noted that bail had been refused based on the seriousness of the crimes. A Police Fact Sheet, apparently provided by [the] Police in support of the charges, was attached to the notice of intention to consider cancellation.
[The applicant] applied for review of this decision to the former Migration Review Tribunal (MRT). This application for review and a subsequent application for review of a decision made by delegate to refuse [the applicant’s] application for a bridging visa have been the subject of numerous Tribunal and Federal Circuit Court rulings. An outline of these matters has been included as background.
The Migration Review Tribunal considered [the applicant’s] application for review and affirmed the decision to cancel his visa. The Tribunal found that [the applicant] had worked full-time as a courier for another employer since June 2014 and had not played [his sport] for his sponsor for over two months, concluding that he had breached condition 8107 of his visa. Condition 8107 imposes restrictions on the work that can be undertaken by a visa holder. The Tribunal did not consider it necessary to assess whether condition 8303 had been breached (at para 27) but nonetheless considered the seriousness of the charges as relevant to the circumstances in which the ground for cancellation arose.
This decision was quashed by the Federal Circuit Court of Australia (FCCA) on judicial review. In summary, the Court found that consideration of the seriousness of the pending criminal charges was impermissible because the Tribunal had not found a breach of condition 8303. According to the FCCA, taking these matters into account when this was not the condition found to have been breached was an illogical consideration. The application was remitted to the Tribunal for reconsideration [in] June 2015.
The application for review was considered by this Tribunal differently constituted, and was determined [in] November 2015[3]. The Tribunal again affirmed the decision of the delegate. The Tribunal found that there had been a breach of condition 8107 and therefore grounds for cancellation existed under section 116(1)(b) of the Migration Act. The record of the decision set out the Tribunal’s reasons for the exercise of the discretion as to whether the visa should be cancelled. This decision was remitted by the Federal Circuit Court with the consent of the Minister on the grounds that the Tribunal had applied the wrong test or asked itself the wrong question. It was conceded that an error arose because it was said that the Tribunal considered its role was to consider whether it should exercise its discretion not to cancel visa with reference to the decision already made by the delegate, rather than approaching the decision afresh. Without reasons setting out the basis for this finding and conclusion it is difficult to understand the essential particulars of the jurisdictional error agreed. However, this detail, while useful, is not critical to our task, which is to consider and determine afresh, firstly, whether the grounds for cancellation are established and, secondly, if so, how the discretion enlivened should be exercised. The question that arises, which may have caused some confusion in respect of the second Tribunal decision, is at what time these matters should be assessed.
[3] Following amalgamation of the Migration Review Tribunal with the Administrative Appeals Tribunal through the Tribunals Amalgamation Act 2015 (Cth) effective from 1 July 2015.
Given this matter had the potential to raise significant matters about the interpretation and operation of the cancellation provisions when an applicant has been charged with a criminal offence but not convicted and where the term of the visa has expired, the Tribunal was constituted to the Division Head and a Senior Member of the Migration and Refugee Division.
LEGISLATIVE FRAMEWORK
Under s.116 of the Migration Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. The Minister may delegate any of his or her powers under the Migration Act to another person (s 496) and may issue directions about the performance of those functions and the exercise of those powers by others (s 499). Relevant to this case, this includes the ground set out in s.116(1)(b) which provides that the Minister may cancel a visa if satisfied that “its holder has not complied with a condition of the visa”. Thus, the Minister (and his or her delegate as permitted under s 496) has discretion to cancel a visa if the visa holder is subject to a condition on the visa and fails to comply with that condition.
Another ground for cancellation which on the face of it has relevance to this case is s 116(1)(e)(i) which enlivens the discretion to cancel a visa where the presence of a visa 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”. This provision was amended effective from 14 December 2014 and it is relevant to note that the previous provision was in narrower terms. The pre-amendment provision does not extend to circumstances where the decision maker is satisfied that the visa holder may or might be a risk. As such, a higher level of satisfaction about risk is necessary under the previous provision. Given [the applicant’s] visa was cancelled on 2July 2014, s 116(1)(e) in its pre-amended form is the operative provision.[4] This provision requires the decision maker to be satisfied that the risk is established, or that it would be established if the visa holder entered Australia, before the ground for cancellation is enlivened. By letter dated 6 September 2016 the Tribunal gave notice to [the applicant], amongst other things, about this provision and information in the Department of Immigration file relating to this ground, inviting him to respond or comment. Ultimately, the Tribunal did not proceed on this basis for the reasons later explained and advised [the applicant] and his representatives accordingly. However, reference to this provision is nonetheless included for completeness.
[4] Refer transitional provision Item 22, Schedule 2, of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (No. 129 of 2014).
If satisfied that the ground for cancellation is made out, the decision maker has discretion whether to cancel the visa. The decision maker must therefore proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The Migration Act and Regulations do not specify any mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s 499 of the factors to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal should have regard to all relevant matters, including but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.
The Departmental guidelines cover such matters as:
(1)the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;
(2)the extent of compliance with visa conditions;
(3)degree of hardship that may be caused (financial, psychological, emotional or other hardship);
(4)circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;
(5)past and present conduct of the visa holder towards the department;
(6)if the breach relates to a breach of r.2.43(1)(la) by a subclass 457 visa holder - mitigating, compassionate and compelling factors;
(7)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 Migration Act which prevent the person from making a valid visa application without the Minister’s intervention;
(8)whether there would be consequential cancellations under s.140;
(9)whether any international obligations would be breached as a result of the cancellation, and
(10)any other relevant matters.
All of these matters, which the exception of 16(6), appear to be relevant to how the discretion should be exercised in this case.
PRE-HEARING DIRECTIONS AND PROCEDURES AND HEARING
By letter dated 19 August 2016, [the applicant] was invited to attend a hearing on 25 October 2016. As previously noted, he was also invited to comment on or respond to adverse information under s 359A of the Migration Act by letter dated 6 September 2016. In short, the letter raised the issue about whether the grounds under s 116(1)(e) or s 116(1)(b) exist and, in particular, whether [the applicant] had breached condition 8107(4)(e) of the visa because he had ceased playing [his sport] for [Club 2] and had worked as a courier. The Tribunal also raised the issue that [the applicant’s] visa, had it not been cancelled, would have expired [in] December 2015 and this was relevant to the exercise of discretion.
[The applicant’s] lawyer, [Mr A] of Kinslor Prince Lawyers, responded by letter dated 20 September 2016 to the effect that:
(1)[the applicant] would rely on all material previously provided to the Tribunal;
(2)[the applicant] had pleaded not guilty to the criminal charges that were pending before the court and his trial was set for 2 to 3 weeks to commence on [a date in] February 2017;
(3)A criminal offence committed while [the applicant] was in immigration detention occurred in an extreme situation and would not be expected to reoccur;
(4)Even if the Tribunal found [the applicant] had breached condition 8107 the Tribunal should find the breach was innocent on the basis of an honestly and reasonably albeit incorrectly held belief the Department had given permission for him to engage in the work, and
(5)The discretionary considerations were most likely to feature highly in the oral hearing and relevant to this issue was the fact that [the applicants] were the ‘parents’ of 5 orphaned children and grandchildren of [the applicant’s wife’s] late sister, who lived with [the applicants] and were either Australian citizens or permanent residents. The grandchildren and three of the children were under 18 years of age and the best interests of these relatives and the children would be a primary consideration for the exercise of the discretion.
The Tribunal listed the matter for a directions hearing on 23 September 2016. [Mr A] appeared on behalf of [the applicant] and following this directions hearing provided a letter dated 29 September 2016 in response to queries raised by the Tribunal about the criminal proceedings and whether any issue had been raised by the [relevant state welfare department] about the children’s care given the pending criminal charges. [Mr A] advised his clients did not have a copy of the criminal brief, neither [the applicants] nor [their] criminal lawyer were aware of any involvement by [that welfare department] and [the applicant] had been committed to trial through a paper committal process.
Given [Mr A] did not address the issue of how the discretionary considerations raised in his letter of 29 September 2017 were impacted by the expiry of [the applicant’s] visa on 31 December 2015, the Tribunal listed a further directions hearing on 30 September 2016.
[Mr A] appeared at the directions hearing and relevantly submitted to the following effect:
(1)There would be difficulties in the Tribunal proceeding to consider whether the ground in s 116(1)(e) had been established prior to [the applicant’s] criminal trial because this would involve a lengthy enquiry into the charges that [the applicant] would be defending in the criminal court and he would be restricted in the evidence he could give.
(2)The case could proceed on the basis of the alleged breach of condition of the visa and the key issue for the Tribunal would be how the discretion would be exercised in the circumstances of the case.
(3)It was in the best interests of the children and grandchildren of [the applicant’s wife’s] sister that [the applicants] remain in Australia.
(4)This would be facilitated by the Tribunal setting aside the original decision to cancel [the applicant’s] visa because even though the visa had expired, [the applicant] would not be barred from making a new visa application in Australia and while that application was being considered he would be entitled to a bridging visa which may also allow him to work pending consideration of the application. While the possible applications (a Parent or Carer visa) would be likely to fail because [the applicant] does not satisfy the criteria for either visa, this would delay matter until his criminal trial had been finalised. If he was acquitted any application for Ministerial intervention would be more favourably received.

Having regard to these submissions, the Tribunal accepted that determination of whether s 116(1)(e) was established would be a lengthy enquiry that would be unnecessary given the visa had already expired, there appeared to be little dispute that condition 8107(4)(e) had been breached and there may have been some disadvantage to [the applicant] given his concern about discussing the criminal charges before his trial. Once a ground for cancellation had been established, the critical issue was how the discretion should be exercised in the circumstances of the case. The Tribunal was therefore satisfied that focusing the review on whether there had been a breach pursuant to s 116(1)(b) and how the discretion should be exercised would be sufficient to dispose of the matter. The Tribunal made directions for submissions on these matters.
The Tribunal did not receive any submissions or documents from [Mr A] and by letter dated 21 October 2016 was advised by [Mr A] that as at 20 October 2016 Kinslor Prince Lawyers were no longer acting for [the applicant].
By email received by the Tribunal at 7.05pm on 24 October 2016, [the applicants] requested that the hearing be adjourned on the basis that they no longer had legal representation and wanted the hearing to be deferred until they found representation. [The applicant] also stated that [the applicant’s wife] was unwell with a fever and he had to remain at home to look after two new born babies. No medical certificate was provided at this time but [the applicant] advised he would obtain one the following day.
The Tribunal did not adjourn the hearing and registry staff contacted [the applicant] by telephone at or soon after the appointed hearing time. The telephone contact was not successful because there was no response from [the applicant’s] mobile and an email was sent advising the hearing would proceed by telephone at 11am. [The applicants] participated by telephone but prior to the hearing emailed a medical certificate and details of [the applicant’s] bail conditions. The medical certificate was dated 25 October 2016 and recorded that [the applicant’s wife] had a medical condition and was “unfit to attend an immigration hearing from 25/10/2016 until further notice”. The letter further noted that [the applicant’s wife] had a “viral infection”. [The applicant] made a further request for an adjournment over the telephone and stated he could not attend because [his wife] was too ill to attend and under his bail conditions he could not leave home unless accompanied by his wife. He also requested time to find and retain another lawyer.
The Tribunal granted the adjournment, advised [the applicant] the matter would be adjourned until 25 November 2016 and outlined the issues raised by his previous lawyers. Soon after the adjourned hearing, the Tribunal provided [the applicant] with copies of all correspondence between the Tribunal and Kinslor Prince Lawyers together with the audio recording of the directions hearings held on 23 and 30 September 2016.
On 14 November 2016 the Tribunal received an email request from [the applicant] to postpone the hearing because he had not been able to find a lawyer to represent him in the time available. The Tribunal responded on 16 November 2016 that the request had been refused “in the absence of written advice as to the steps that had been taken to retain legal representation and the prospects of obtaining such representation”. [The applicant] responded by email on 18 November 2016 to the effect that he had contacted [Mr A] who had estimated the costs to secure representation for the hearing. He and [his wife] wanted more time to raise the money, which they were prepared to do. This request was also made by email dated 23 November 2016 on the basis that it was unfair and that at the 25 October 2016 telephone hearing [the applicants] had requested a two month adjournment.
The Tribunal adjourned the hearing until 18 January 2017, notified [the applicant] of the postponement and new date for the hearing by letter dated 24 November 2016 and, relevantly, noted that no further adjournments would be granted unless there was a very good reason. This letter and all notifications were sent to [the applicant] at his address notified following written confirmation that [Mr A] had ceased to act.
The invitation to hearing was sent on 24 November 2016 to the address notified by [the applicant’s] representative as his address for services and subsequently confirmed by [the applicant] in the telephone hearing on 24 October 2016. There is a Tribunal record that the letter was posted on 24 November 2016 and there is no record of the letter being returned. The invitation was also emailed on 24 November 2016 to the email address notified by the representative, which was the same email address from which the Tribunal had received numerous email communications from [the applicants] prior to the hearings of 24 October and 25 November 2016. There is no record of this email bouncing back or failing to be delivered.
The hearing was scheduled for 2pm on 18 January 2017. [The applicant] did not appear or contact the Tribunal.
The Tribunal decided to proceed to determine the matters under s 362B(1A)(a) of the Migration Act for the following reasons:
(1)[the applicant] has been given three opportunities to attend a hearing and present his case, including two adjournments. He was on notice that if he did not appear the review may be determined on the papers;
(2)There was evidence [the applicant] had been sent the invitation to hearing by post and email;
(3)He has been previously represented by a lawyer who provided detailed submissions and evidence in respect of the previous reviews of the cancellation of [the applicant’s] visa and for refusal of the bridging visa and that material was available for consideration by the Tribunal in this review; and
(4)[the applicant’s] previous lawyer, [Mr A], had indicated that no further documentary material would be provided, other than the submissions on the legal and discretionary issues referred to in [22].
CONSIDERATION
Outline of the evidence
The factual matters relevant to this review, which are not in dispute and have been outlined in or evidenced by submissions, documents and statements provided by [the applicant] and his representatives to the Tribunal in relation to the cancellation of the visa are as follows.[5]
[5] Department of Immigration and Border Protection, Notice of intention to consider cancellation ([dated in] July 2014); Letters to the Tribunal from [company] dated [in] August 2014 (with attachments); [in] November 2014 (with attachments) and [in] December 2014 (with attachments); [the applicant’s wife] ([in] March 2015) (with attachments); Letters to the Tribunal from [Company 1] dated [in] August 2015, [several dates in] October] 2015, [and two dates in] September 2016.
(1)[The applicant] initially entered Australia in December 2012 on a visitor visa, departing on 21 March 2013. He entered Australia on a subclass 401 temporary work ‘Sport’ visa to play [his sport] with [Club 1] in May 2013. This visa expired in December 2013. [The applicant] was accompanied by [his wife], who was included in the visa as a member of his family unit.
(2)[The applicant] was granted a further subclass 401 Sport visa on 16 January 2014. He was sponsored by [Club 2]. The term of [the applicant’s] contract with [Club 2] was said to be January 2014 to December 2015. [The applicant’s] visa was valid until [December] 2015. [The applicant’s wife] was again included as a member of [the applicant’s] family unit.
(3)Relevantly, conditions 8303 and 8107 were imposed on [the applicant’s] visa. Condition 8303 provides as follows:
The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.
(4)Condition 8107, which, in summary contains restrictions on the work activities that can be undertaken by a visa holder, is set out in full in the attachment to this decision. Condition 8107(4) relevantly provides:
(4)If the visa is:
(a)a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or
(b)a Subclass 402 (Training and Research) visa; or
(ba)a Subclass 420 (Temporary Work (Entertainment)) visa;
the holder must not:
(c)cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(d)engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or
(e)engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified.
(5)[The applicant] played [his sport] with [Club 2] but sustained an injury in about March 2014. In a statement lodged with the Migration Review Tribunal in support of the first review, [the applicant] stated that he continued to attend training and matches although he could not play. According to medical evidence provided by [the applicant] he sustained a knee injury playing [his sport].
(6)[The applicant] worked as a courier with an employer other than his sponsor. He states this was agreed with [Club 2] because he was not paid to play [his sport]. [The applicant] also asserts that the Department was aware of this at the time a delegate of the Minister approved the subclass 401 visa and that he therefore believed he was entitled to work for an employer other than [Club 2].
(7)[In] July 2014 [the applicant] was arrested by [the] Police and taken to [a] Police Station. He was charged with four sexual offence charges alleged to have taken place on [in] January 2013 and [March] 2013 in [specified] areas. The charges were two counts of sexual assault, assault with an act of indecency and assault occasioning actual bodily harm.
(8)On the same day of the arrest [the applicant] was interviewed by immigration officers at an interview conducted at the [Police] Station. Following this interview, extracts of which are stated to be recorded in a document headed ‘Notice of Intention to Consider Cancellation under S 116 of The Migration Act 1958’, [the applicant’s] Sports visa was cancelled. It was recorded that the ground for the cancellation was that the delegate was satisfied [the applicant] had breached condition 8303 of his visa (refer s 116(1)(b) of the Migration Act).
(9)[The applicant] was initially refused bail by the [police] bail officer but was granted bail on condition on 4 July 2014. [The applicant] was not released into the community at that time because he was detained in immigration detention in Villawood Detention Centre from 4 July 2014. He remained in Villawood until he was transferred to Maribyrnong Immigration Detention Centre in about May 2015.
(10)[The applicant] pleaded not guilty to all charges and his criminal trial was listed for hearing [in] June 2015. The trial was vacated [in] May 2015 following [the applicant’s] move to Maribyrnong because of difficulties in [the applicant] instructing his criminal lawyers. The trial was listed for hearing [in] November 2015 but was again deferred.
(11)While in immigration detention in Maribyrnong [the applicant] was charged with one count of destroying Commonwealth property on 1 June 2015. He pleaded guilty and, while no conviction was recorded, a good behaviour bond of 18 months and fine of $500 were imposed by the court [in] July 2015.
(12)[In] July 2014 [the applicant] applied for a bridging visa. His application was refused and he applied for a review of this decision to the Migration Review Tribunal. The decision of the delegate was affirmed. [The applicant] made a second application for a bridging visa through his lawyers [Company 1] [in] August 2015. This application was again refused and [the applicant] applied for review of the decision to this Tribunal. The decision was affirmed but on judicial review the decision was quashed. The matter was remitted to this Tribunal for reconsideration. The Tribunal, differently constituted, remitted the matter for reconsideration with directions, including a direction that [the applicant] met the bridging visa criteria. [The applicant] was granted a bridging visa and was released from immigration detention following this decision.
(13)One of the matters raised in support of the bridging visa application was that [sister of applicant’s wife’s] had recently passed away but before her death she had requested that [the applicants] look after the children.
The Tribunal accepts that [the applicant] denies all criminal charges against him and that under the criminal justice system he is innocent until proven guilty through due criminal process. On the information available, it appears [the applicant’s] criminal trial is listed to commence [in late] February 2017. Based on the information provided by [the applicant], the Tribunal also accepts that he and [his wife] are living in his sister-in-law’s house and providing support to [that relative’s] children and grandchildren. At present two of [sister of applicant’s wife’s] children are under 18 years old, including her nephew. There is no evidence as to why [sister of applicant’s wife’s] daughter, who is 22 years old, cannot look after her own children. Notwithstanding this, we accept that the presence of [the applicant’s wife], at least, is likely to be a support to [her sister’s] family. Relevantly, the Tribunal accepts that [the applicant] worked as a courier while sponsored by [Club 2], that he sustained an injury but continued to train and watch the [games] of his club and that he believed he was entitled to work. The Tribunal also accepts [the applicant] committed an offence while he was in immigration detention but notes, given the sentence imposed, that the court did not find the offence to be sufficiently serious to warrant that a conviction be recorded.
Nature of the review
The Tribunal is considering the matter afresh based on the material before the Tribunal and is not bound by the findings of the delegate. This is a long established principle.[6] While it is clear it is not open to the Tribunal on review to consider whether a visa might have been cancelled under a different power, there is authority for the proposition that the Tribunal is not bound by the grounds for cancellation relied on by the delegate.[7] However, as already noted, a question that arises is at what time this issue should be assessed. Is it time of decision or time of cancellation or is there an element of both?
[6] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ.
[7] See Krummery v Minister for Immigration and Citizenship (2005) 147 FCR 557 and Zhang v MIAC [2007] FMCA 1855 (Cameron FM, 25 September 2007) at [16]-[18].
This issue was considered by the High Court in Shi v Migration Agents Registration Authority [2008] HCA 31. The case concerned a migration agent who was found to have breached the relevant code of conduct. The agent’s registration was cancelled. The issue for the Tribunal was whether this was the correct and preferable decision and the question for the High Court was whether this should be assessed at the time MARA made its decision or at the time the Tribunal made its decision. The issue was whether the agent was “not a person of integrity or otherwise not a fit and proper person”. In summary, the High Court found that it was important to identify the precise nature of the decision and whether the relevant legislative provision governing the exercise of the power contains a temporal element. The High Court considered the nature of the review having regard to the review power as set out in s 43(1) of the Administrative Appeal Tribunal Act 1975 (Cth) (the AAT Act) and concluded that it was appropriate for the Tribunal to take into account circumstances prevailing at the time of the Tribunal’s decision.
The relevant provision governing the review of immigration decisions by the Tribunal in this case is s 349(2) of the Migration Act, which is similar to s 43(1) of the AAT Act. As such, the observations made by the High Court apply equally to the review powers under the Migration Act.
The task of the Tribunal on review is to make the correct and preferable decision and, in so doing, it must consider the matter afresh. If there is further information available at the time of the decision relevant to the issue, the Tribunal must take this information into account. However, the decision making process under s 116(1) requires the decision maker to first decide the threshold question of whether grounds exist to enliven the power to exercise the discretion to cancel. Based on the principles in Shi v MARA the question of whether grounds exist to enliven the discretion and when this question should be assessed will depend on the relevant legislative provision. The discretion under s 116(1) of the Migration Act does not include a temporal element but a number of the grounds which enliven the discretion appear to do so. Relevantly, s 116(1)(b), being the ground for cancellation identified in this case, provides that the ground for cancellation is established if the decision maker is satisfied the visa holder has not complied with a condition of the visa. This implies that s 116(1)(b) contemplates the consideration of factual matters prior to and at the time of cancellation. This is also consistent with Kim v Minister for Immigration and Citizenship [2008] FCAFC 73, where the Full Court held that if a cancellation decision is affirmed on review the original decision continues to operate from the date it was made. If the Tribunal sets aside the original decision and substitutes a new decision, the new decision “operates prospectively in the absence of the exercise of any power to back date the decision” (as per Tamberlin J at [33]). Thus, the conditions attaching to a visa can have no operative effect after the visa is cancelled as there is no visa in effect, unless and until the cancellation is set aside by the Tribunal. As such, whether there has been non-compliance with a condition of a visa must necessarily be assessed at the time the cancellation decision was made.
Accordingly, we conclude that the question of whether the ground for cancellation exists under s 116(1)(b) must be assessed at the time the cancellation decision was made but having regard to all information available to the Tribunal at the time of the review decision. In contrast, the exercise of discretion under s 116(1) must be assessed at the time of the review decision by the Tribunal.
The review of a cancellation decision becomes complicated, as in this case, where there is a significant delay between the time of cancellation and the review, particularly where the visa would have expired by the time of the review. For instance, setting aside the decision does not alter the fact that the visa has or would have expired if it had not been cancelled and the visa holder would remain unlawful and subject to detention and removal from Australia under ss 189 and 198 unless another visa was in effect or granted. This will be dealt with in greater detail later in our reasons.
Does the ground for cancellation exist?
The grounds for cancellation are set out in s 116(1). The grounds relevant to the circumstances of this case are s 116(1)(b), non-compliance with a visa condition, and s 116(1)(e), risk to the health, safety or good order of the Australian community. The delegate cancelled the visa on the basis of s 116(1)(b) because he was satisfied that [the applicant] had breached condition 8303. He did not identify breach of condition 8107 as a ground for cancellation nor did he consider s 116(1)(e) of the Migration Act. As already noted, the Tribunal is not bound by the delegate’s findings and in our view, subject to procedural fairness, may raise a new ground as the basis for cancellation provided it is based on the same exercise of power.

Notwithstanding that the Tribunal put [the applicant] and his representative on notice that it may consider whether the ground set out in s 116 (1)(e) was satisfied, it did not proceed on this basis for the reasons outlined at [22] and [23]. [The applicant’s] representative was advised of this by the Tribunal at the second directions hearing and [the applicant] was advised of this at the first adjourned hearing.
The Tribunal finds that [the applicant] had not breached condition 8303 at the time of cancellation based on the pending sexual assault charges. Firstly, the charges do not of themselves give rise to a breach of the condition. More significantly, there can be no breach of condition 8303 based on the conduct alleged to be the basis for the charges because the condition is prospective in nature and applied from [a date in] January 2014. The criminal conduct is alleged to have taken place in January and March 2013, prior to the imposition of the condition.
[The applicant] pleaded guilty to a criminal offence while in detention and while such a conviction may be the basis for breach of condition 8303, it cannot be the basis for cancellation in this case because there was no conviction at the time of cancellation. The conviction was after the time of cancellation and condition 8303 was therefore not in effect. However, the existence of this conviction may be relevant to the exercise of discretion.
The second issue is whether there was a breach of condition 8107 at the time of the cancellation.
According to [the applicant’s] written statement dated 24 August 2014 to the Tribunal, he worked in casual jobs, sometimes 2 to 3 days at a time and sometimes once a week. After his injury [the applicant] worked with his wife assisting with [the work]. In written submissions from [the applicant’s] then representative dated 26 August 2014, it was conceded that [the applicant] had breached condition 8107(4)(e) but the breach was said to have occurred in extenuating circumstances.[8] The visa was said to have been granted with knowledge that [the applicant] would be working outside [Club 2].
[8] This submission was made by [name deleted] on behalf of [the applicant] in respect of the first review decision that was subsequently remitted after judicial review.
In a letter to the Tribunal dated 8 October 2015 prior to the second Tribunal review, [the applicant’s] representative submitted that [the applicant] had not breached conditions 8107(4)(c) or (d) because he had continued to participate in training with [Club 2] and any work was undertaken with the consent and knowledge of [Club 2]. It was conceded that whether there had been a breach of condition 8107(4)(e) was more ‘problematic’. It was further submitted that there was uncertainty about the legal impact on condition 8107(4)(e) where the Department was on notice that multiple employers may be involved in [the applicant’s] sponsorship. It was also submitted that it even if there was a breach, the question of whether the breach was intentional was relevant to the exercise of discretion.
This submission was consistent with the submission made by [Mr A] in his letter dated 26 September 2016 sent to the Tribunal during this review.
We reject the submission that there is any legal uncertainty as to whether condition 8107(4)(e) has been breached in the circumstances of this case but accept the submission that the fact the breach was unintentional may be relevant to the exercise of discretion.
Condition 8107(4)(e) is not ambiguous and is clear in its terms. It provides that the visa holder, [the applicant], must not engage in any work or activity with an employer other than the employer identified in the most recent nomination in which the holder is identified. [Club 2] was the sponsor/employer nominated. There was no other employer identified. This is not in dispute. The breach is therefore clear. While we accept that the Department was on notice of a letter dated [in] January 2014 from [Club 2] to the effect that the Club would arrange employment for [the applicant] in the [club’s] area with a local business, the letter does not state that employment by other employers would be involved. However, we accept there may have been some confusion on [the applicant’s] part. This may be relevant to the exercise of the discretion but not to the question of whether there was a breach.
The Tribunal finds that [the applicant] engaged in work or an activity for an employer (within the meaning of subregulation 2.72A(8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which he was identified. The Tribunal finds that [the applicant] breached condition 8107(4)(e).
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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
The Department guidelines identify matters that should be considered by decision makers in the exercise of discretion. Not all are relevant to the facts in this case, however, some are apposite. The purpose of [the applicant’s] travel and stay in Australia was to play [his sport] with [Club 2] until 31 December 2015. This contract has expired, as [the applicant’s] visa would have expired by this date if it had not been cancelled, so this matter does not weigh against cancellation. We have found that [the applicant] did not comply with condition 8107(4)(e) but there is no evidence he breached other conditions. Given [the applicant’s] visa was cancelled within six months of its grant little can be drawn from this other than that [the applicant] generally complied with the conditions of his visa but not with all conditions. We accept the breach was unintentional. These matters weigh against cancellation.
The other relevant matters referred to in the Department guidelines are hardship, mandatory legal consequences of the cancellation (including consequential cancellations), international obligations (such as non-refoulement and the best interests of children, which are to be treated as a primary consideration) and any other relevant matters.
The following matters are relevant to those issues and therefore to the exercise of discretion:
(1)[the applicant’s wife’s] visa is cancelled as a consequence of the cancellation of [the applicant’s] visa under the provisions of s 140 of the Migration Act;
(2)If [the applicant’s] visa remained cancelled, in the absence of the grant of another visa, both [the applicant and his wife] would be unlawful and may have to leave Australia; unless they make an application for another visa or are granted another visa;
(3)Even if the decision to cancel the visa was set aside, in the absence of the grant of another visa, both [the applicant and his wife] would be unlawful due to the expiry of the Sports visa and would have to leave Australia;
(4)Even if the visa remained cancelled [the applicant’s wife] would not be barred from making an application for a visa in Australia;
(5)[The applicant] could apply for Ministerial intervention at any time based on the asserted needs and interests of [sister of applicant’s wife] family, some of whom include children, irrespective of whether the visa remains cancelled;
(6)[The applicant’s] visa has expired and the only utility in setting aside the decision after its expiry would be to remove any legislative bar or disadvantage to [the applicant] of his visa having been cancelled under the Migration Act;
(7)There was no visa identified by [the applicant] or his representative that [the applicant] could apply for in Australia that would meet the requirements to allow him to remain in Australia to assist [sister of applicant’s wife’s] family;
(8)[The applicant] has been sentenced for a criminal offence while in detention, although the nature of his offending was not considered sufficiently serious to warrant a conviction being recorded; and
(9)There is no evidence to suggest that cancellation would result in the removal of [the applicant] to a country where he would face persecution or significant harm.
While the matters referred to in 52(1) and (2) weigh against cancellation, the matters referred to in 52(3) to (9) either weigh in favour of cancellation or are neutral. Of particular relevance to this case are the matters set out in 52(3), (5), (6) and (7). We accept the claims of support to [sister of applicant’s wife’s] family and have considered the best interests of the children as a primary consideration. However, relevant to this claim is the issue of whether the cancellation has the effect of removing this support or, conversely, whether setting aside the cancellation would have the consequence of allowing this support to continue. It does neither. A further issue is the impact on [the applicant’s wife]. If the decision to cancel [the applicant’s] visa was set aside and substituted with a decision that the visa should not be cancelled, in the absence of another visa, [the applicant’s wife] would still have to leave Australia. But for the provisions of s 48 of the Migration Act, which restricts certain onshore visa applications, the impact is the same regardless of whether the visa remains cancelled or the cancellation is set aside because the visa has expired.
Section 48 of the Migration Act provides that certain applicants who have had their visas cancelled may only apply in Australia for certain classes of visas as prescribed in r 2.12 of the Migration Regulations. Otherwise visa holders who have had their visas cancelled may apply for a visa offshore, although relevantly there may be a time restriction of three years preventing the grant of certain visas for [the applicant]. [The applicant’s wife] would not be similarly restricted and a grant in relation to [the applicant] may be made if there are compelling reasons affecting Australian citizens to warrant the grant.
This issue is significant because it would weigh against cancellation but cannot be usefully considered in the abstract. The question is whether there is any identifiable hardship or disadvantage arising from the cancellation or indeed advantage in setting aside the cancellation decision and, in particular, whether there is any visa that [the applicant] could now apply for in Australia that would be barred as a consequence of the cancellation. At the directions hearings, [Mr A] could not identify any visa other than a Parent or Carer visa, neither of which he conceded would apply to [the applicant]. It was also conceded that [the applicant] was not barred from making an application for Ministerial intervention and that this could have been made at any time. It was, however, submitted that such application would be unlikely to succeed while [the applicant] has serious criminal charges pending. Relevantly, these charges are expected to be resolved within the two months. The oral submission made was to the effect that it would be preferable to delay the hearing or to set aside the cancellation to preserve [the applicant’s] options to remain in Australia. This submission was highly speculative and in the absence of information identifying hardship or indeed anything other than a speculative advantage or disadvantage, this matter does not weigh against cancellation.
The submission in effect seeks to identify visa applications that cannot succeed as a mechanism to obtain a bridging visa and permission to work and delay an unfavourable outcome pending [the applicant’s] criminal trial. The proposition of setting set aside the cancellation to allow [the applicant] to make an application for a visa that has no credible basis for the purposes of delay cannot be a justification to support the exercise the discretion in [the applicant’s] favour. In this regard we note that there are other options available, for instance law enforcement agencies may apply for a criminal justice stay certificate or warrant or [the applicant] could apply for Ministerial intervention on this basis.
CONCLUSION
The issue that gave rise to the cancellation was the serious sexual assault charges that had been laid against [the applicant] in July 2014 relating to conduct that was alleged to have occurred prior to the grant of the Sport visa. The delegate did not proceed on the basis of s 116(1)(e) but wrongly, as we have now concluded, proceeded on the basis of a breach of condition 8303. Given the imminent criminal trial which will determine [the applicant’s] guilt or innocence and the fact the visa has expired, the Tribunal has not proceeded on this basis. We have nonetheless found there was a breach of a visa condition and that the discretion to cancel is therefore enlivened. [The applicant’s] representatives submitted that a reason to exercise the discretion in favour of [the applicant] and set aside the cancellation decision would be to avoid hardship to [the applicants] and to [sister of applicant’s wife’s] family. However, for the foregoing reasons there is no credible evidence or submissions pointing to this, other than the submissions made by [the applicant’s] representative as referred to at [22(4)] and [58]. As already noted, we reject these submissions for the reasons set out at [58] and [59].
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Subclass 401 (Temporary Work (Long Stay Activity)) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Jan Redfern
Deputy President

Kira Raif
Senior Member