Singh (Migration)

[2021] AATA 5142

Singh (Migration) [2021] AATA 5142 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manider Singh

CASE NUMBER:  2103848

HOME AFFAIRS REFERENCE(S):          BCC2020/2686030

MEMBER:SM Justin Owen

DATE:11 November 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 11 November 2021 at 10:35am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – granted in conjunction with application for partner visa – criminal conviction and community correction order – discretion to cancel visa – cooperation with police, plea of guilty and compliance with ongoing conditions of order – elements of offence, culpability, reasons for and effect of plea, and risk to community – hardship to Australian citizen wife and newborn child – wife’s mental health – no evidence of ongoing treatment provided – best interests of child – no family or social support in Australia – possibility of immigration detention and applying for bridging E visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 359A
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
Crimes Act 1900 (NSW), ss 91H, 91HA

CASES
CFE16 and CFD16 v Minister for Immigration [2020] FCCA 1083
Djacic v MIMIA [2004] FCA 151
Hands v MIBP [2018] FCAFC 225
Loury v R [2010] NSWCCA 158
Promsopa v MICMSMA [2020] FCA 1480
R v O’Neill [1979] 2 NSWLR 582

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

1. This is an application for review of a decision dated 24 March 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) and reg. 2.43(1)(oa) of the Migration Regulations 1994 (the Regulations) on the basis that the applicant had been convicted of an offence against a law of the Commonwealth, State or Territory (whether or not the applicant held the visa at the time of the conviction and regardless of the penalty imposed (if any)). On 5 February 2020 the applicant was convicted in the NSW Local Court of the offence Possess child abuse material – T1.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The Tribunal wrote to the applicant under s.359A on 27 July 2021. On 6 August 2021 the applicant responded through his representative Mr McCrudden requesting the Tribunal not schedule a hearing until he obtained the sentencing remarks from the Local Court Magistrate in relation to the applicant’s criminal conviction, which his representative believed, would take around four weeks.  The Tribunal agreed not to schedule a hearing date for four weeks.  On 16 September 2021 the applicant’s representative informed the Tribunal the sentencing remarks had been secured.  On 22 September 2021 the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments.   

5. The Tribunal exercised its discretion to hold the hearing by videoconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by videoconference.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant appeared before the Tribunal on 14 October 2021 via videoconference to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A].

7. The applicant was represented in relation to the review. The applicant’s representative also attended the hearing via videoconference. 

8. The applicant submitted the following documents to the Department:

   -Applicant’s certificate of completion for Diploma of Leadership and Management from the Wentworth Institute, dated 19 April 2017;

   -Applicant’s certification of completion for Advanced Diploma of Leadership and Management from the Wentworth Institute, dated 30 July 2018;

   -Letter signed by Mr Gurpreet Singh dated 3 February 2019 in which Mr Singh claims the applicant and the other co-accused are innocent;

   -Letter of support signed by Mr Ranjeet Singh, President of The Sikh Association of Sydney INC, dated 23 April 2019. This letter confirms the applicant is a regular visitor and devotee of the Sikh Temple, Revesby and undertakes volunteer work including preparing and serving food to the congregation;

   -Letter of support signed by Warvin Hadii, Director of Original Communications Pty Ltd, dated 3 February 2020;

   -A statement to the Campbelltown Local Court signed by the applicant, dated 4 February 2020;

   -A psychologist report prepared by Mr Chafic Awit, dated 4 February 2020 together with Mr Chafic Awit’s curriculum vitae;

   -Letter of support signed by Narender Singh, the applicant’s cousin, dated 5 February 2020;

   -Community Correction Order for the applicant for a term of two years, dated 4 March 2020;

   -Applicant and [Ms A]’s marriage certificated dated [April] 2020;

   -Statutory declaration signed by the applicant, dated 19 August 2020;

   -Statement signed by [Ms A], dated 19 August 2020;

   -A submission in reply to the Department’s Notice of Intention to Consider Cancellation (NOICC) signed by Mr Michael McCrudden, dated 14 August 2020. This submission was originally submitted to the Department on 14 August 2020 but was re-submitted on 26 November 2020 representing a partial response to the Department’s NOICC dated 24 November 2020;

   -Letter of support signed by Mr Gurpreet Singh, Secretary of Sri Guru Singh Sabah Revesby, dated 6 December 2020;

   -Statutory declaration signed by the applicant, dated 7 December 2020;

   -Statutory declaration signed by [Ms A], the applicant’s wife, dated 7 December 2020;

   -Submission from Mr Michael McCrudden dated 8 December 2020 requesting that the Department not cancel the applicant’s visa until seven days after [Ms A] delivers her child because of the stress that the applicant’s potential visa cancellation is causing [Ms A] and the applicant’s and [Ms A]’s subsequent concerns for the health of their unborn child;

   -Psychologist court report prepared by Mr Chafic Awit, registered psychologist, for [Ms A], dated 16 December 2020;

   -Submission from Mr Michael McCrudden dated 10 March 2021 maintaining that if the applicant’s visa is cancelled, [Ms A] and their child will suffer irreparable hardship;

   -Copy of the applicant’s and [Ms A]’s joint bank account statement from the Commonwealth Bank of Australia for the period between 1 July 2020 – 30 December 2020. In Mr Michael McCrudden’s email to the Department dated 10 March 2021 and noted above, Mr McCrudden maintains this bank statement is evidence that the applicant and [Ms A] have limited savings. The statement evidences a closing balance of $5,320.28;

   -Copy of [Ms A]’s bank statement from the Commonwealth Bank of Australia dated 10 March 2021. Closing balance of $4,731;

   -Copy of the applicant’s and [Ms A]’s joint bank account statement with the Commonwealth Bank of Australia indicating the account was opened on 14 May, 2020;

   -Statement signed by the applicant and [Ms A], undated. The parties write that [Ms A] first arrived in Australia in November 2013 and the applicant arrived in Australia in July 2015; the parties first met at the Sri Guru Singh Sabha Sikh Temple in Revesby in December 2018 and became engaged on 19 March 2019; [Ms A] revealed to the applicant she had been married before; in May 2019, the applicant and [Ms A] commenced cohabitation, leasing a house together with [Ms A]’s sister; the parties told their parents about their relationship on 2 May 2019 and planned to go to India in March 2020 to marry. The COVID-19 pandemic prevented their wedding plans from going ahead in India so the parties married in Australia [in] April 2020, in Sydney. The parties share everything including household finances, grocery shopping and the payment of electricity and gas bills and the payment of rent. After they married, they opened a joint bank account together and they transfer their money into their joint account from their personal accounts for rent, house bills and shopping. The parties bought a car together on 28 July 2020 and they plan on buying a house in the future;

   -Letter of support signed by Keshni Sarika Singh, undated;

   -Letter of support signed by Hussein Hadii, Director of Original Communications Pty Ltd, undated;

   -Copy of [Ms A]’s Australian passport;

   -Copy of the applicant’s and [Ms A]’s electricity account statement with Energy Australia, issued 24 June 2020;

   -Copy of the Residential Tenancy Agreement in the names of the applicant and [Ms A], signed 29 June 2020;

   -Copy of [Ms A]’s [pregnancy ultrasound scan] dated 14 July 2020;

   -Copy of [Ms A]’s [screen pathology results], dated 3 August 2020;

   -Copy of [Ms A]’s non-invasive prenatal test – request form, dated 3 August 2020;

   -Copy of an Energy Australia gas bill addressed to [Ms A]. Gas account summary was for the period between 8 August 2020 – 10 November 2020;

   -Photos of the applicant and [Ms A] in various social settings and a photo of a cupboard full of baby items;

   -Copy of a Neonatal Discharge Referral from [Hospital]. The applicant’s and [Ms A]’s child was born on [Date]; and

   -Photos of the applicant and [Ms A] with their newborn child.

9. Through his representative, the applicant submitted the following documents to the Tribunal:

   -Statutory declaration signed by the applicant, dated 1 October 2021;

   -A copy of the statutory declaration previously submitted to the Department, signed by the applicant, dated 19 August 2020;

   -A copy of the statutory declaration previously submitted to the Department, signed by the applicant, dated 7 December 2020;

   -A copy of the statutory declaration previously submitted to the Department, signed by [Ms A], dated 7 December 2020;

   -A copy of the applicant’s and [Ms A]’s tenant history from Ed Realty indicating the applicant and [Ms A] moved into the property on 27 July 2021 and pay $400.00/week in rent;

   -Letter of support signed by Narender Singh, dated 4 October 2021;

   -Letter of support signed by Gurmeet Singh, priest at Gurudwara Sri Guru Singh Sabha, Revesby, dated 3 October 2021;

   -Copies of the applicant’s electricity bill, issued in August and September of 2021;

   -Copies of [Ms A]’s bank statement from the Commonwealth Bank of Australia dated 5 October 2021. Closing balance at 26 June 2021 was $8,822.10 and closing balance on 2 October 2021 was $3,291.37;

   -Copy of the applicant and [Ms A]’s joint bank account statement from the Commonwealth Bank of Australia dated 5 October 2021. Closing balance at 4 October was $3,491.23;

   -A statement signed by Mr Michael McCrudden, undated. In this statement, Mr McCrudden submits that there is insufficient evidence, at best, capable of reliably establishing that the applicant poses a risk to the community going forward, and the cancellation of the applicant’s visa would impose undue and enduring harm on the applicant, his Australian citizen wife and child;

   -Copies of sections of the Crimes Act 1900 (NSW): section 91H – Production, Dissemination or Possession of Child Abuse Material; and section 91HA – Defences;

   -Flight details for [Ms A]’s sister’s impending departure from Australia;

   -A submission from Mr Michael McCrudden dated 2 November 2021 discussing the applicant’s guilty plea; the applicant not being a risk to the community going forward; and the hardship that will be faced by the applicant and his family if his visa is cancelled, in particular, the impact that the visa cancellation will have on the applicant’s son. This submission is accompanied by a series of articles about the impact of family separation, detention and deportation on a family and the child;

   -NSW Police Force Child Protection Register Acknowledgement Form Pursuant to Section 12C of the Child Protection (Offenders Registration) Act 2000: Form 4, signed by the applicant, dated 11 February 2020;

   -Community Correction Order, signed by the applicant, dated 4 March 2020; and

   -Campbelltown Local Court Sentencing Remarks made by Magistrate Guy, dated 5 February 2020 accompanied by a submission from Mr Michael McCrudden dated 3 November 2021 discussing the Sentencing Remarks.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

12. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Regulations. In the present case, the ground in r.2.43(1)(oa) is relevant.

13. At the hearing the applicant acknowledged to the Tribunal that he had incurred the conviction summarised in paragraph 2.  In oral evidence to the Tribunal the applicant confirmed that he had been charged with criminal offences by the NSW Police and convicted.  The applicant acknowledged both at the hearing and through his written submissions that there are prescribed grounds to cancel his visa.   

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    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

16. The applicant arrived in Australia on 9 July 2015 as the holder of a Student (Higher Education Sector)(Subclass 573) visa.  He subsequently successfully completed a Diploma followed by an Advanced Diploma in Leadership and Management in 2017 and 2018 respectively. The applicant enrolled in a Bachelor of Business course in July 2018 before withdrawing from it in June 2020.   

17. The applicant commenced a relationship with [Ms A], an Australian citizen, in late 2018 or early 2019 and married [Ms A] [in] April 2020. An application for a Partner (Subclass 820/801) visa was lodged on 13 July 2020.  In association with this visa, the applicant was granted his Bridging visa ‘A’ which is the subject of this review. 

18. At the time of writing the NOICC response on 14 August 2020, the applicant and [Ms A] were expecting their first child.  [Ms A] has since given birth to their child on [Date]. The applicant and [Ms A] have indicated a strong preference for their family to remain in Australia where [Ms A] has lived since 2013. The applicant adds in his statutory declaration dated 19 August 2020 that if his visa is cancelled and [Ms A] and their child are forced to return to India as they have no family to provide support in Australia, their child will be deprived of the same opportunities he would have had in Australia. At the time of decision, the applicant’s Partner visa application is still being processed.  The purpose of stay on the evidence is to remain in Australia with his young Australian citizen child and his Australian citizen wife.

19. The Tribunal accepts that the purpose of the applicant’s stay in Australia was on the basis of his relationship with his wife and sponsor, [Ms A], and his young son.  His intention was to remain in a permanent and ongoing relationship with his wife and raise his son. 

20. On the evidence before it concerning the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor against cancelling the visa. 

    The extent of compliance with visa conditions

21. In the applicant’s submission to the Tribunal it is submitted that the applicant cooperated with the NSW Police regarding the charge against him and has since complied with all directions issued to him in connection with ongoing monitoring by the NSW Police which, it is claimed, demonstrates a respect for Australia’s laws.

22. The evidence indicates that the applicant’s Bridging visa was cancelled by the delegate due to the prescribed grounds of the applicant’s criminal conviction and the delegate being satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.  The Tribunal notes that there are no conditions attached to the applicant’s Bridging visa.  The Tribunal weighs this factor neither in favour of, nor against cancelling the visa. 

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family members should his Bridging visa be cancelled.

24. The applicant has claimed that he will suffer from hardship and will suffer future hardship if the visa cancellation is not set aside.  The Tribunal is satisfied that the cancellation of the applicant’s Bridging visa ‘A’ will impose some significant hardship upon the applicant. 

25. In the applicant’s partial reply to the NOICC dated 14 August 2020, it was stated that the applicant and [Ms A] would experience financial hardship if the applicant’s visa was cancelled and he was forced to leave Australia. It was submitted the applicant and [Ms A] were jointly responsible for paying rent and the applicant makes significant contributions to the financial obligations of the relationship. It was submitted that neither the applicant nor [Ms A] have any family in Australia who can provide them with financial or other support, especially at a time where the applicant and [Ms A] would need to increase their financial expenditure to look after their newborn child.

26. In the same submission, the applicant’s representative Mr McCrudden writes of the applicant’s concern for his safety in the event his visa is cancelled and he is forced to return to India. The Tribunal notes that one of the applicant’s co-accused and former flatmates committed suicide after these criminal charges were laid.  It is submitted that the deceased co-accused’s family blame the applicant for his death, and they have indicated they would seek revenge and seek to harm the applicant should he return to India.

1. The applicant’s representative also submitted [Ms A]’s concern about her mental health being adversely affected by the prospect of her husband the applicant’s visa being cancelled while she was pregnant. [Ms A] worried about how the physical manifestations of her deteriorating mental health would impact her pregnancy and her ability to care for her child. This is supported by the applicant’s and [Ms A]’s statutory declarations and by the report prepared by registered psychologist Mr Chafic Awit, dated 16 December 2020, in which Mr Awit diagnosed [Ms A] with generalised anxiety disorder and major depressive disorder. It was claimed [Ms A]’s underlying psychological condition was significantly exacerbated when the applicant received the NOICC.

2. In Mr Awit’s report he claimed that since the applicant received the NOICC, [Ms A] (who the report refers to via her first name as [Ms Given name]) had ‘lived within a world of uncertainty’. He stated [Ms A] had said that if the applicant was deported, she would be forced to return to India to be by her husband’s side given that she, and the applicant as father of her child, have no family members in Australia. 

3. The threat of the COVID-19 pandemic in India to the applicant, their child, and herself was also held out as a genuine fear which was impacting upon her general anxiety.  

4. The hardship [Ms A] would face having to raise her child in Australia essentially alone without the support of her husband or family and raise this child by herself was submitted as further impacting upon [Ms A]’s mental health.  [Ms A] furthermore had advised that the longer that she and the applicant had to wait for a decision from the Department, the more her symptoms of anxiety and depression had worsened.

5. Mr Awit wrote that it was his professional opinion that [Ms A]’s condition would deteriorate further over time, if a decision is not made soon, and if the decision is not favourable. This, it was held, would likely impact her ability to provide care for and nurture her child in the future.

6. The applicant in his own statutory declaration of 19 August 2020 expressed his own concern that his mental health will further deteriorate if his visa was cancelled.  He stated his concerns that this may put a strain on his relationship with [Ms A]. The Tribunal notes that in the psychological report of 4 February 2020 prepared by Mr Awit, the psychologist diagnoses the applicant with generalised anxiety disorder and major depressive disorder.

7. A statutory declaration provided by the applicant dated 7 December 2020 indicated he ceased working as a truck driver in October 2020 and found it difficult to find new work due to his criminal record, though he had eventually found new work as a car detailer.  He stated that he and [Ms A] only had at that time approximately $7,000 in savings and their finances would be stretched after their son was born and [Ms A] stopped working.  He expressed his concerns that he and his family would experience significant financial hardship if his visa was cancelled. The applicant further impressed his concerns about the impact that the constant state of uncertainty surrounding his visa status was having on his and [Ms A]’s emotional well-being and mental health. He stated that at the time of writing, he had already completed 250 hours of the 300-hour community service he was ordered to undertake as a result of his criminal conviction.

8. The applicant in his statutory declaration stated he attends the Sri Guru Singh Sabha Temple in Revesby most days as religion is very important to him. The applicant expressed concerns that if his visa was cancelled, he would be forced to return to India and will be separated from his wife and son and won’t be able to visit because of the COVID-19 impacted travel restrictions. He claimed that even if [Ms A] and their child were to travel to India, the applicant did not know how he would support his family as jobs are scarce and the applicant’s parents cannot support them for an extended period of time. The applicant also expressed his concerns that [Ms A] would not be able to access effective treatment for her mental health in India. The applicant outlined his concerns furthermore for the quality of life that his son, as an Australian citizen, would have in India in comparison to the quality of life he would have in Australia.

9. The applicant and [Ms A] provided a range of information in relation to their financial situation and the hardship they may face.  In [Ms A]’s statutory declaration of 7 December 2020, she indicated she works at [Employer], earning $700/week. The applicant works for Paddington Smash Repairs as a car detailer and earns approximately $700/week. It was claimed [Ms A] and the applicant pay $450 in rent/week and also cover the cost of [Ms A]’s sister’s rent as she cannot find work due to the COVID-19 pandemic. They spend $600/week on food, $50 on utilities, and $300 on other things, mostly related to health care. [Ms A] stated she planned to work up until [January] 2021 and then take 12 months of maternity leave. [Ms A] claimed she and the applicant would be destitute if the applicant’s visa is cancelled and he consequently can’t work. [Ms A] writes that other than her sister, they have no family in Australia and their families in India cannot support them financially.

10. In relation to their son, [Ms A] maintained that her son needed to develop a relationship with his father and therefore they should not remain separated. [Ms A] is adamant the applicant is unlikely to reoffend. [Ms A] worries about the effect that their financial hardship, as well as the emotional and psychological hardship will have on their child as a result of the applicant’s visa being cancelled. These sentiments are echoed by the applicant in his statutory declaration dated 19 August 2020. He adds that he is concerned that if his son has to grow up in India, he will be deprived of the same opportunities he would have had in Australia.

11. In the statutory declaration to the Tribunal signed by the applicant on 1 October 2021, the applicant informed the Tribunal that his son was born on [Date]. The applicant states he now works four days a week, approximately 40 - 45 hours/week, as a delivery driver for 7/11 and earns between $1,000 - $1,150/week. The applicant’s wife, [Ms A], is not working, meaning the applicant is financially responsible for the relationship. The applicant expressed concerns that if his visa is cancelled, he will be placed in immigration detention and will not be able to provide for his wife and son and they would subsequently suffer extreme financial hardship. The applicant submits that his wife could not return to work because she would have to look after their son and couldn’t rely on her sister to assist with child-care, who it was subsequently pointed out and documentation supplied, was due to fly back to India in November 2021.

12. At the Tribunal hearing of 14 October 2021, the applicant reiterated these points from his previous written submissions.  He stated that his wife and child, each Australian citizens, have no family in Australia to support them should his visa be cancelled and he returns to India.  He expressed strong concerns for his wife and her ability to look after their [Age]-month old son without his support.  The applicant stated at the hearing that his wife and child were the best thing to have ever happened in his life.  He repeated his concerns about the potential health consequences of returning to India for his wife and child.  The applicant stated that he had received his double vaccination for COVID-19 but fears remained for his family in India.  He also expressed his concerns about the quality and availability of any psychological treatment in India for [Ms A] given the challenges she had faced in recent years. 

13. In relation to himself, the applicant stated that the greatest hardship he would face was potentially not being able to physically see and be with his son.  In relation to financial hardship, he stated that there were little to no jobs in India combined with a poor education system.  The Tribunal enquired into his previous mental health claims.  He stated in response that he was currently not receiving treatment and was managing his own situation with a faith in God.

14. In her own oral testimony, [Ms A] reiterated many of the points from her previous written submissions.  In her relation to her mental health, she stated she had been receiving medical treatment up until the COVID-19 pandemic in 2020.  Since then she had not been receiving treatment. 

15. In relation to looking after her son, she stated that childcare was too expensive, so she was looking after her and the applicant’s son on a full-time basis after leaving her five-year long employment at [Employer].  [Ms A] stated that, should the applicant’s visa be cancelled and he was ultimately compelled to depart Australia, she would in all likelihood remain in Australia.  She stated that she had now been in Australia for over eight years and she had a young baby boy that was reliant on her. 

16. The Tribunal accepts that there will be hardship to the applicant, and in particular to his wife [Ms A] and their son should the applicant’s visa be cancelled. 

17. In relation to the claim of financial hardship, the Tribunal accepts there will potentially be financial hardship to the applicant’s wife [Ms A] and his son, both Australian citizens, should the applicant’s visa be cancelled.   [Ms A] gave evidence to the Tribunal hearing that she currently receives approximately $300 per week in Centrelink benefits.  Her rental costs and associated living costs are currently dependent on the applicant’s employment.  [Ms A] has no other family members (after the impending departure of her sister) in Australia that have the ability to assist her in mitigating the loss of the applicant’s income.  The loss of the applicant’s weekly income would in all likelihood lead to a situation whereby [Ms A] and their young son would have to seek new accommodation. 

18. The Tribunal balances this with the fact that [Ms A] can, if she so chooses, re-enter the workforce.  [Ms A] stated at the Tribunal’s hearing that she previously worked for five years for [Employer], and usually in a 9am to 4pm time slot.  Returning to such hours and employment could ensure that she was able to utilise childcare during these hours, notwithstanding the fact that working hours in [work sector] can be impacted by rosters.  The Tribunal noted at the hearing that reforms in the Commonwealth childcare funding over the past few years had resulted in substantial Commonwealth means-tested subsidies that could affray the vast majority of the costs of childcare for the applicant.  The Tribunal accepts that [Ms A] has not enquired into the availability of childcare in her vicinity.  Nevertheless, the Tribunal considers the evidence suggests that [Ms A] could potentially generate her own income through returning to employment and acquiring Commonwealth assistance for childcare that may assist her in mitigating any financial hardship generated by the cancellation of the applicant’s visa.  The Tribunal accepts that such a situation is not ideal for [Ms A] and the extra demands of employment and childcare can be considered to be increased hardship.  Nevertheless the Tribunal notes that remaining in gainful employment and utilising childcare is a common experience for many thousands of women that may prefer to remain at home with their child.  The Tribunal accepts [Ms A] may face increased financial hardship – even to a significant level – should the applicant’s visa be cancelled and she is no longer able to rely upon his income.  The Tribunal does not however consider this to be onerous or an unacceptably harsh outcome.  The Tribunal accepts that there will be a degree of increased financial hardship for [Ms A] should the applicant’s visa remain cancelled and he depart Australia.  The Tribunal does not consider it unreasonable for a couple or an individual to make certain changes to their spending and lifestyle due to circumstances such as those presented in this review.  The Tribunal notes that Australian citizens like [Ms A] do retain access to a range of government support when facing genuine financial hardship.  The Tribunal accepts there will be a degree of increased financial hardship to [Ms A] should the applicant’s visa be cancelled. 

19. The Tribunal also notes in relation to financial hardship and the applicant that, should the applicant’s Bridging Visa ‘A’ be cancelled, the applicant may be able to apply for a Bridging Visa ‘E’ (as an alternative to detention) to remain in Australia for the finalisation of his Partner visa application that is currently before the Department.  If granted, the applicant may be able to apply for work rights on the grounds of financial hardship.

20. In relation to financial hardship and the applicant himself should he return to India, the Tribunal notes his claims that acquiring employment in India will be difficult.  The applicant stated he had not worked previously.  The Tribunal accepts that the hourly rate of pay in India may be less than that of Australia, but it does not consider that is evidence that the applicant will be unable to either acquire employment in India or potentially continue providing financial support to his son and [Ms A].  The Tribunal recognises the applicant’s lack of experience in the workplace, but does not consider this is indicative necessarily of a future inability to work.  He has acquired experience in the workforce in Australia and, the evidence suggests, is an industrious employee.  The Tribunal is not satisfied on the evidence before it that the applicant is unable to seek gainful employment should he return to India. 

21. The applicant and [Ms A] each made different claims pertaining to what [Ms A] might decide to do should the applicant’s visa be cancelled and he depart Australia:  the applicant stated [Ms A] and their son would travel with him offshore; [Ms A] said she would remain in Australia.  The Tribunal does not draw any adverse inferences from these differing views on this matter.  The Tribunal nevertheless notes that there is no requirement for [Ms A] to relocate with the applicant – that would be a decision for her and the applicant to make.  The Tribunal accepts that moving to India would be a significant challenge for [Ms A] and her Australian citizen son.  The Tribunal accepts the argument that relocation would have some adverse impact upon [Ms A] and their son’s lifestyle. 

22. The applicant stated there would be a strong degree of emotional hardship for himself and [Ms A].  Similar testimony was made by [Ms A].  The Tribunal recognises [Ms A]’s testimony that she has no family and no real friends in Australia.  The Tribunal accepts that emotionally, any separation will be difficult for her.  Both the applicant and [Ms A] also spoke about the adverse impact that this hardship would have upon their son at a very young age.  The Tribunal accepts the testimony by both parties that there would be emotional hardship for them both if the applicant was compelled to leave Australia.  The parties however can remain in close contact via modern communication technology and the [Ms A] retains the opportunity to travel to India and relocate with the applicant if she sees fit.

23. The Tribunal however notes that [Ms A] is not compelled to depart Australia with the applicant.  She can remain in Australia if she chooses.  Furthermore, if she were to depart Australia, she can remain in communication with the applicant over the telephone or through various internet channels as regularly as she desires.  The applicant can similarly remain in communication with [Ms A] and their son.  The parties can provide each other with a significant degree of emotional and moral support.  They can continue to maintain their family and social links with each other.  This will be of assistance to [Ms A] and the applicant, but the Tribunal acknowledges that it will remain a genuine challenge for [Ms A].  The Tribunal also notes the preferable situation generally for a young child, in this case just [Age] months old at the time of decision, to be with both their mother and their father.      

24. The Tribunal has also considered the specific hardship that may be caused to the applicant given he has an outstanding Partner visa application before the Department should his Bridging Visa ‘A’ be cancelled.  The Tribunal notes that should the applicant’s Bridging Visa ‘A’ be cancelled, as an alternative to detention the applicant may be able to apply for a further Bridging Visa ‘E’ that may allow him to remain in Australia pending the finalisation of his Partner visa application. The Tribunal also notes that the applicant may otherwise await the outcome of his Partner visa application whilst in immigration detention, a situation that the Tribunal accepts would cause considerable hardship to his wife [Ms A] and their son on a financial and to a lesser extent, emotional level.  

25. At the hearing the Tribunal asked the applicant to discuss his claims concerning the alleged threats he had received from the family of the deceased co-accused.  He has claimed he will face hardship due to the harm he may face if returned to India. The Tribunal has considered the applicant’s oral testimony and found it lacked, in the Tribunal’s opinion, any particular detail or any specificity of any threat.  There is no evidence or claim for protection.  Whilst the Tribunal appreciates the suicide of his co-accused would have generated understandable grief and potentially a degree of hostility from the deceased’s family towards the co-accused including the applicant, there is no evidence of any specific threat before the Tribunal.  The Tribunal gives the claim no weight.  

26. The Tribunal has noted the claims [Ms A] has made in relation to the psychological hardship she will face should the applicant’s visa be cancelled.  The Tribunal has considered the issue of psychological and emotional hardship also from the perspective of the various claims made in relation to [Ms A]’s mental health and her previous treatment.  The Tribunal has taken into account the psychologist reports prepared by Mr Chafic Awit, dated 16 December 2020 which speak of the psychological challenges faced by [Ms A]. 

27. The applicant stated at the hearing he was unsure as to whether [Ms A] currently had a Mental Health Plan.  He stated that she was not currently undertaking any treatment.  [Ms A] in her own oral testimony stated that she was seeing a doctor prior to the COVID-19 pandemic but since that time she was not.  [Ms A] stated that whilst she was pregnant with their son, she was depressed and scared about the future, fearing the applicant would be removed from Australia.

28. The Tribunal accepts that the uncertainty as to the future migration status of her husband the applicant was a stressful situation for [Ms A].  The Tribunal accepts that this stress was compounded at a time she was pregnant and expecting their child.  The Tribunal accepts that [Ms A] remains anxious given the fact she and the applicant now have [an Age]-month-old child together and she understandably is concerned for the future of their son.  The Tribunal notes nevertheless that there is no evidence of any ongoing treatment being undertaken by [Ms A] or a current Mental Health Plan. The Tribunal is of the opinion that [Ms A] is managing her anxiety about the future of her husband and son.  The Tribunal nevertheless accepts that the ongoing uncertainty remains a cause of psychological hardship for [Ms A]. 

29. The Tribunal has also considered any psychological or emotional hardship in relation to the applicant.  The Tribunal notes the report from his psychologist Mr Awit dated 4 February 2020 outlining the applicant’s own psychological challenges.  At the hearing he stated he currently is not undergoing any treatment in relation to his psychological health.  The Tribunal asked the applicant whether he himself had a formal Mental Health Plan.  He replied he has a faith in God and that he was able to manage his challenges through his faith.  The Tribunal considers the applicant is anxious about his migration future and that of his wife [Ms A] and child.  The Tribunal does not however accept, on the basis of the evidence before it, that he is currently suffering from any ongoing mental health or psychological challenges that constitute hardship that is either onerous or unreasonable. 

1. The Tribunal accepts on the evidence before it that the applicant would prefer to remain in Australia.  The Tribunal however considers the hardship that will be caused to the applicant himself personally should his visa be cancelled to be relatively limited.  The Tribunal considers the hardship that might be caused to his wife [Ms A] and their son to be considerably more onerous.  The Tribunal has some concern for the situation of [Ms A], an Australian citizen, who is raising a young child, who is also an Australian citizen, with the ongoing fear that she will be left in Australia essentially alone should the applicant’s visa be cancelled.  Whilst the Tribunal has noted [Ms A] can depart Australia with the applicant and her son and travel to India if she so desires, the Tribunal understands her reticence to leave, as an Australian citizen with a baby son.  The Tribunal has given considerable weight to the hardship [Ms A] and her baby have faced and will continue to face should the applicant’s visa be cancelled. 

2. In relation to the degree of hardship that may be caused, the Tribunal weighs this factor against cancelling the visa.   

   The circumstances in which the ground for cancellation arose

3. The cancellation arose from the charging and conviction of the applicant of a criminal offence in the State of New South Wales.  His conviction was for the offence Possess child abuse material – T1. He was convicted on 5 February 2020.  He was sentenced to a Community Correction Order for two years where he was required to perform 300 hours of community service work. 

4. The Tribunal has given some weight to the applicant for completing the 300 hours of community service work well prior to the conclusion of the two-year order.  The Tribunal also notes the applicant has not been involved in any further incidents that have required the involvement of the Police since his conviction.  The Tribunal furthermore gives some weight to the applicant’s acceptance of responsibility for his behaviour that led to his conviction. The Tribunal notes that the applicant continues to dispute claimed elements of his behaviour that led to his conviction. The Tribunal notes the fact that on the evidence he appears to have been cooperative with the NSW Police.

5. The applicant through his representative made lengthy written submissions pertaining to the circumstances in which the cancellation arose.  These include the applicant’s partial reply to the Department’s NOICC from his representative dated 14 August 2020, the applicant’s statutory declaration dated 19 August 2020, and post-cancellation detailed written submissions to the Tribunal.

6. The evidence that led to the conviction of the applicant for possessing child abuse material was distributed through a WhatsApp group.  Most of the messages exchanged in the group it is claimed related to Sikh festivals. The applicant submitted that he would often save multiple messages so he could look at them later. The applicant submitted he was ashamed and repulsed that this material was on his telephone and accepted responsibility for the material being on his phone.  He claims however the material was only on his telephone because he failed to delete the material received in the WhatsApp group. It was pointed out by the applicant and his representative Mr McCrudden that there was no suggestion that the applicant was responsible for obtaining the child abuse material, disseminating the material, or encouraging the production, dissemination or viewing of the material and thus he did not commit an act that led to him obtaining or using the material.

7. The applicant’s representative submitted that this demonstrated the applicant’s moral culpability was reduced, relative to other offences involving child abuse material. The applicant’s reduced moral culpability was also reflected by the Community Correction Order sentence that was imposed, compared to the maximum penalty of 10 years’ imprisonment that can be handed down for such offences. It was submitted that the risk of the applicant reoffending is low and that the applicant has sought to make a positive contribution to the Australian community through his charitable work at the Sri Guru Singh Sabha Temple.

8. In his submission to the Tribunal on 8 October 2021, the applicant’s representative Mr McCrudden submitted that there was nothing in the evidence which directly confirmed, or provided a sufficiently reliable basis for concluding, that the applicant was aware that he was in possession of child abuse material or otherwise has a tendency towards criminality.  It was submitted that it followed there was therefore no basis for the Tribunal to make a conclusion that the applicant is a risk to the community, and the decision to cancel the applicant’s visa should subsequently be set aside.

9. The Tribunal has noted in the psychological report prepared by Mr Chafic Awit, dated 4 February 2020, Mr Awit writes:

   Mr Singh has expressed remorse and shame in relation to the offences. Mr Singh was adamant that at the time of the offences that he did not recognise that much of the content in his phone would be considered child abuse material. He advised that due to his cultural upbringing child nudity was common practice across India. He advised that in hindsight after everything that has happened, he now understands the severity of his actions…

   The writer is of the professional opinion that Mr Singh at no time has been sexually interested in children. He feels that he has been branded a sexual predator, and because of this has been experiencing a number of Anxiety and Depressive symptoms. Mr Singh advised that though there was child abuse material on his phone, that he did not access this material intentionally, and was very lazy in relation to deleting material along the way. He advised that he regrets ever joining this group and advised that material such as the one found on his phone is not something that he finds himself sourcing. Mr Singh has suffered significantly from the impact of these offences, and is more aware now, how his actions, or lack of actions has further led to the exploitation of children.

   It is the professional opinion of the writer that Mr Singh is a low risk of reoffending. He has no prior criminal convictions and has learned from the harsh consequences of his actions. He is eager to continue with ongoing treatment to assist with his underlying Anxiety and Depression condition.

10. In the applicant’s statement to the Campbelltown Local Court, dated 4 February 2020, the applicant explains he came to Australia to study to enable him to find a well-paying job in India after completing his studies and help his parents. He says since the offence, his life has become an embarrassment, he has become depressed and has needed to seek treatment for his depression. He admits guilt and admits the illegality of his actions. He expresses remorse, regret, shame and disgust for the offence. The applicant explains that his family in India is now being threatened by the family of Mr Gurpreet Singh, the co-accused who committed suicide soon after being charged, as they believe the applicant is responsible for the deceased’s death. The applicant has been told he “will be dealt with when [he] return[s] home”.

11. On 27 July 2021, the Tribunal wrote to the applicant under s.359A and asked him to comment on or respond to information outlined in the Police Facts Sheets concerning the events of 28 November 2018 and 30 November 2018 that resulted in the applicant’s criminal onviction. On 8 October 2021 the Tribunal received further submissions from the applicant through his representative, Mr McCrudden. These included a statutory declaration signed by the applicant dated 1 October 2021 where the applicant explained his reasons behind pleading guilty to the offence.  He stated his then lawyer had explained to him that he could still be found guilty of the offence, even if he did not know the messages containing child abuse material were on his phone. He claimed his lawyer explained to him that a plea of guilty could significantly reduce the severity of the sentence the applicant received. On this basis, the applicant claims he made the decision to plead guilty, even though he claims he was not aware the child abuse material was on his telephone. 

12. At the hearing the Tribunal spent a considerable period examining the applicant’s statement that whilst he was guilty of possessing the child abuse material discovered on his telephone, he was not in fact aware it was on the device.  The fact that the applicant freely provided his telephone and password to the NSW Police is held as strongly suggestive of the applicant’s lack of knowledge. 

13. The Tribunal noted at the hearing that Alford guilty pleas are available in many jurisdictions in the United States, where the defendant admits that the evidence presented by the prosecution would be likely to persuade a judge or jury to find the defendant guilty beyond a reasonable doubt, yet the defendant in entering an Alford guilty plea in a criminal case does not admit to the criminal act and asserts innocence.  The Tribunal enquired as to whether this was a similar claim being made in this review.

14. The applicant through his representative has responded that the situation before the Tribunal was that the applicant possessed the child abuse material, but was not aware it was in his possession.  It was claimed that the 20-odd images he was convicted of possessing were a minuscule number compared to the thousands of other images and messages that were on his telephone.  The applicant’s representative stated that the applicant’s guilty plea essentially pertained only to the factual question as to whether the applicant in fact had the material stored on his telephone. As the applicant’s representative submitted:

    It may seem incongruous to suggest that a person can, on the one hand, be convicted of an
    offence; while on the other, not be regarded a danger to the community because of the
    circumstances that resulted in the conviction, but that is precisely that case here.
    This outcome is possible because of the (i) way the offence in ss 91H(2) is defined; and (ii)
    manner in which the criminal proceedings were finalised.

    To establish an offence against ss 91H(2) the prosecution was only required to “prove beyond reasonable doubt that [Mr Singh] voluntarily and intentionally performed the particular physical act in question” : Director of Public Prosecutions (NSW) v Hughes [2017] 492 at [84] i.e., Mr Singh (the applicant) voluntarily and intentionally took possession of the material. It was not required to establish Mr Singh (the applicant) was actually aware that he was in possession of child abuse material.

15. The applicant through his representative has asserted that by entering a guilty plea, the applicant was not admitting to knowing he was in possession of child abuse material because this knowledge was not an ‘essential legal ingredient’ of the offence and no determination had been made as to whether the applicant knew about whether he had child abuse material in his possession.  The applicant’s representative claims that the applicant was only pleading guilty to possessing the material, and such a plea was only ‘an admission of the essential legal ingredients of the offence admitted by the plea, and no more’: R v O’Neill (1979) 2 NSWLR 582.

16. The Tribunal does not accept the claim that the applicant was only pleading guilty to ‘possessing’ the material and was unaware of it. The Tribunal notes that a statutory defence was available to the applicant which relates to circumstances as claimed by the applicant. This defence was not utilised. Section 91HA of the Crimes Act states:

    (1) Innocent production, dissemination or possession   It is a defence in proceedings for an offence against section 91H that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.

17. The Tribunal discussed this at the hearing.  The applicant through his representative claimed that despite the defence, there was a risk to the applicant being found guilty given the requirement that the applicant could not reasonably be expected to have known about their possession of the material, and what may in the environment of the Court be considered as ‘reasonable’.  A risk remained of being convicted despite any plea of not guilty on the basis of the statutory defence.

18. The Tribunal does not accept this claim.  If the applicant was unaware he was in possession of the child abuse material in question then he had a clear and unequivocal statutory defence available to him.  The fact that there is no evidence or claim that he ever disseminated the images elsewhere would seemingly have been a supportive fact in utilising such a defence.  The applicant instead chose to plead guilty.  The Tribunal does not accept the argument that the risk of pleading not guilty and still being convicted means that the only logical option was to enter a plea of guilty.  In entering a plea of guilty the applicant was admitting to the offence as charged.  He was accepting what was contained in the NSW Police Facts Sheet. 

19. The Tribunal furthermore notes in the applicant’s submissions to the delegate, he included his submission to the Magistrate in the NSW Local Court in February 2020 where he wrote “I was in a WhatsApp group with people from India where disgusting images and videos were sent.  I saved the images and videos so I could watch them later.  I know I should have been more careful”.  The Tribunal discussed this matter with the applicant at hearing and noted his submission suggested he was aware of what was contained in the media files.  The applicant stated he was not aware, whilst his representative noted that the statement had been prepared a number of years after the event and apparently without the assistance of a lawyer. 

20. A further statutory declaration was provided post-hearing by the applicant dated 29 October 2021 where he described how he saved the messages he received via the WhatsApp group chat, and claimed he did not see the videos or photographs contained in the messages whilst saving them.  He states he did not have to open the message in order to save them on his telephone.  He stated that when he had time he would go back and view some of the photographs or videos downloaded, but often he didn’t bother viewing them.  He stated that the types of images he viewed were of Sikh-related religious and community events.  He said that at no time did he view any of the child abuse material, had no knowledge of the material, and for this reason he provided the NSW Police his telephone. 

21. He furthermore submitted in his statutory declaration of 29 October 2021 that he pleaded guilty to the charge on the advice of his then lawyer Mr Tabchouri.  He claimed he had been advised that a guilty plea would mean he would not be gaoled and instead receive a bond or community service.  A not guilty plea would bring greater risk, possible gaol time, and would have to proceed to a higher Court and take longer to complete.  The applicant also stated that at the time he was stressed and humiliated over the NSW Police investigation; had no stable employment and would be unable to pay further legal costs; he was concerned with the threat of gaol time; and he did not understand Australian law.  He stated he just wanted the situation over, and he was advised by his lawyer that the best step to take in expediting proceedings was to plead guilty and avoid gaol. 

22. The Tribunal has considered the considerable submissions that were provided in relation to the applicant being in possession of – and his awareness of being in possession of – the child abuse material.  It is not the role of the Tribunal to relitigate these proceedings: this matter has been before a Court.  The applicant pleaded guilty.  He has completed the sentence imposed by the Magistrate.  Nevertheless the Tribunal notes that it does not accept on the evidence before it that the applicant was unaware that these images were on his telephone.  The Tribunal notes from the NSW Police Facts Sheet, that it put to the applicant under s.359A, that the media files on his telephone were not automatically saved by the application, but instead saved by the phone user to the telephone.  The Tribunal has placed weight on the applicant’s written statement to the Magistrate, as provided to the delegate in this review, that he was in a group where such images were shared and he saved them to watch later.  The Tribunal has considered his testimony at the hearing, as well as his post-hearing submissions and statutory declaration as to why he pleaded guilty, and his claim he had no knowledge of the material on his telephone.  The Tribunal has noted the explanations provided, including those post-hearing by the applicant’s representative which were provided with Magistrate Guy’s sentencing remarks.  The Tribunal quite simply does not accept the applicant’s explanation in relation to the material found on his telephone is credible.  The Tribunal considers the applicant’s attempt to downplay his culpability through claiming this material was on his telephone for many months – without his knowledge – quite frankly is disingenuous, and disappointingly illustrates, in the Tribunal’s opinion, a reticence by the applicant to take responsibility for his actions. The applicant plainly stated in his correspondence that he was in a group where he saved the images to watch later.  He made no claims that he had no awareness of the material in his written statement to the Magistrate.  The Tribunal notes the material in question would appear to have been on his telephone for many months: the Tribunal does not accept that he never checked his telephone to see what he had downloaded.  The Tribunal considers the more likely scenario is that the applicant has made such claims to the Tribunal to essentially mitigate the seriousness of his actions in relation to the child abuse material that was found on his telephone.

23. The applicant through his representative has made extensive and detailed submissions pertaining to the issue of risk.  In the applicant’s submission of 8 October 2021, the applicant’s representative submitted:

    ASSESSING RISK
    10. The Tribunal must, in my submission, approach it’s assessment of risk with a high degree of caution.[1] This is due to the inherent difficulty associated with evaluating risk[2] – especially where a person has only been convicted on a single occasion, i.e. where there is limited tendency evidence – and the gravity of the consequences of affirming the decision under review. Reliance on “inexact proofs, indefinite testimony or indirect references” must, with respect, be avoided.[3]

    [1] Sullivan v CASA [2014] FCAFC 93 at [120] per Flick and Perry JJ.

    [2] RJE v Secretary of Department of Justice [2008] VSCA 265 at [16] – [17] per Maxwell and Weinberg JJA.

    [3] Supra note 4 at [16] per Logan J.

    11. Furthermore the above, the Tribunal would only find that Mr Singh presents a risk to the
    community if there is evidence which provides “an evident, intelligible, and rational
    foundation”[4] for such a conclusion. In my submission being convicted of an offence, without
    more, provides no such foundation. As Nettle J explained in Hughes v The Queen:
    “To make evidence of previous offending or misconduct significantly probative of a
    subsequent offence there needs to be something more about the nature of the offences
    or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability
    that the accused committed the offence, or that the complainant is telling the truth as
    

    [4] Assistance Minister v Splendido [2019] FCAFC 132 at [131] per Wheelan J.

    [5] [2017] HCA 20 at [154].

    to the commission of the offence.”[5]

    IS MR SINGH A RISK TO THE COMMUNITY?

    Overview
    12. Save for the offence for which he was convicted, there is no evidence that Mr Singh presents a risk to the community. The question for the Tribunal is then limited to the following: To what extent, if at all, is Mr Singh’s offending in 2018 capable of supporting a finding that he presents an ongoing risk to the community?

    13. Before it can find that Mr Singh is likely to commit an offence such as possess child abuse material, the Tribunal must be satisfied that is a risk that Mr Singh will have, or at least might have, an interest in such material going forward. Absent this evidence, there is no basis in my submission for the Tribunal to conclude Mr Singh is a risk to the community.

    14. The only evidence that could potentially support a finding that Mr Singh might have an
    ongoing interest in child abuse material – and therefore presents a risk to the community – is
    the fact that he was located with a number of videos depicting child abuse on his phone.
    However, this is only true if there is evidence that Mr Singh (i) actually knew he was in
    possession of such material; or (ii) he played a role in the production or dissemination of such material, or at least encouraged this production or dissemination.

    15. For the reasons that follow, there is no evidence, conviction notwithstanding, that Mr Singh (i) actually knew the videos depicting child abuse material were on his phone; or (ii) was in any way connected with the production or dissemination of such material.

    16. It follows that there is no evidence that reliably indicates Mr Singh represents a risk of
    engaging in similar behaviour, or otherwise behaving in a way that might be injurious to the
    community.

1. The applicant’s representative submitted that there was nothing in the evidence that clearly established the applicant ever had an interest in child abuse material or possessing such material; and to the extent such evidence existed, it ‘did not provide a sufficiently probative evidence for the Tribunal to conclude the applicant had an ongoing interest in such material.’ 

2. The applicant’s representative stated that in the absence of such evidence, the Tribunal would be unable to find there was a risk of the applicant engaging in any similar behaviour in the future.  He submitted that in the absence of any risk, the Tribunal was “obliged” to set aside the decision of the delegate and substitute a decision that the applicant’s visa not be cancelled.  He drew upon Djacic v MIMIA [2004] FCA 151 in support of his assertion.

3. Further submissions were made in relation to risk by the applicant through his representative on 3 November 2021.  It was again reiterated that the applicant did not view the child abuse material on his telephone and was therefore unaware of it on his telephone; and he entered a plea of guilty essentially to resolve the criminal proceedings quickly, not because he believed he was guilty of the offence.  He has asserted that he was not aware of the admissions he was making as part of a plea of guilty and was under stress at that time.  The applicant’s representative drew the Tribunal’s attention to Loury v Regina [2010] NSWCCA 158 at [99] per Whealy J “…a plea of guilty may be entered for reasons other than a belief in one’s own guilt”.

4. The Tribunal has considered the applicant’s submissions pertaining to risk.  As stated previously, the Tribunal does not accept the applicant’s assertions that he was unaware of the child abuse material on his telephone.  Bearing in mind the legislative purpose of the cancellation of the visa is community protection, the Tribunal agrees that risk can generally be seen to be a relevant consideration: it would not necessarily agree however with his assertion in paragraph 7 of his submission that it is a ‘mandatory relevant consideration’.  The Tribunal acknowledges the explanatory statement refers to the issue of risk. The Tribunal considers that in a case where the applicant presents no risk to the community, that would weigh strongly against cancelling, but would not necessarily be determinative of a decision. Likewise, if the Tribunal found an applicant presented a strong risk, that would weigh strongly in favour of cancelling.  The Tribunal is not however obliged to quantify the risk or make a definitive finding that the applicant does or does not pose a risk, as the applicant’s representative appears to have asserted.  The Tribunal acknowledges that in cases where there was a finding of no risk, cancellation, depending of course upon the individual circumstances of the case, may seem disproportionate given the consequences to an applicant and their family.

5. The Tribunal notes the applicant’s representative’s assertion that the Tribunal needs evidence that the applicant was aware that he was in possession of the child abuse material saved in his telephone.  The Tribunal has considered his explanations.  It does not accept he was unaware the material in question was on his telephone.  The Tribunal has, on the basis of all the evidence before it in relation to the circumstances of the event, considered the risk that the applicant may be to the community based upon this event.  The Tribunal has also considered the various information and evidence before it as to how any potential future risk may be mitigated.  

6. Whilst the Tribunal is of the opinion the applicant was aware he was in possession of the child abuse material on his telephone, the Tribunal notes the evidence before it suggests the applicant does not pose a significant risk to the community in the future.  The Tribunal has drawn this conclusion based upon a number of pieces of evidence before it.

7. These include the decision of the sentencing Judge to not impose a custodial sentence upon the applicant but instead hand down a Community Correction Order.  The Judge imposed a sentence of 300 hours of community service, service that the Tribunal notes the applicant has willingly undertaken and completed well before the expiration of the two-year order imposed.  The Tribunal notes that a sentence can be imposed of up to 10 years imprisonment upon an individual being found guilty by a Court of the offence for which the applicant was convicted.  His Honour’s decision to impose such a non-custodial sentence suggests the risk the applicant poses to the community is limited. 

8. The decision of the Department to grant the applicant a further Bridging Visa to allow him to remain in the community, rather than place the applicant in immigration detention, upon the cancellation of his Bridging Visa ‘A’ has also been of relevance to the Tribunal in its consideration of risk.  The Tribunal notes the applicant’s Bridging Visa ‘A’ was cancelled in March 2021.  If the applicant was assessed as a risk to the community, the Tribunal would have reasonably expected, in the circumstances of this case, for the Department to place the applicant in immigration detention whilst his outstanding migration matters were assessed.  The applicant was however granted a further Bridging Visa ‘E’ that has allowed him to remain in the community. 

9. The Tribunal furthermore notes that the applicant was charged in relation to the possession of child abuse material on 30 November 2018.  He was convicted on 5 February 2020.  A Notice of Intention to Cancel his visa was not issued until late November 2020, almost two years after charges were laid and nine months after his conviction. If the applicant was a significant risk to the community, the Tribunal would have reasonably expected a NOICC to have been issued at an earlier date.  The Tribunal notes furthermore that there is no evidence or claim before it that the applicant has had any further adverse interactions with the Police or other authorities since that time, or in fact prior to his conviction.

10. Of particular relevance to the Tribunal’s consideration of the risk the applicant may pose to the community is the NSW Child Protection Register.  The applicant has been on the Register since 11 February 2020 and will remain on the Register until 5 February 2028.  The applicant has provided the Tribunal with a copy of his signed Register.  The applicant has agreed to some far-reaching reporting obligations to the NSW Police until February 2028.  These include:

    -     informing the NSW Police of any change to his address at least 14 days prior to moving residence;

    -     informing the NSW Police of his employment and volunteer work, and any changes to the matters within seven days of any change; providing all details of any motor vehicle in his possession;

    -     informing the NSW Police of any interstate travel of over 14 days at least seven days prior to travel; reporting to NSW Police after returning from interstate;

    -     having to apply to the Commissioner of Police for permission to travel overseas; providing all details of any current and past passports;

    -     informing the NSW Police of any new membership of any club or organisation that has child membership within seven days including libraries, church groups and sporting organisations;

    -     Informing the NSW Police of any contact with any child under 18 years of age within seven days;

    -     Reporting to the NSW Police annually to confirm again all details previously provided;

    -     Reporting to the NSW Police all telephone numbers used or intended to be used; and

    -     Informing the NSW Police of the details of any access to the internet undertaken including provider, type of connection, email address, user names or intended user names within seven days.    

11. The Tribunal notes that failing to comply with any of these reporting obligations until February 2028 could lead to the applicant being arrested, charged, and liable for up to five years’ imprisonment and/or a $55,000 fine.

12. The Tribunal considers the ongoing reporting and oversight requirements that the applicant will be required to undertake with the NSW Police for a further six years from the time of decision significantly mitigate any potential risk the applicant may be to the community.  

13. The Tribunal considers the offence for which the applicant has been convicted is repugnant. The material as outlined in the NSW Police Facts Sheet, for which he has been convicted of possessing, is appalling.  Whilst there is no suggestion the applicant passed on this material to other individuals, possession itself of such grotesque imagery essentially enables pornographers by creating a market for the abominable material they produce. 

14. The matter before the Tribunal however in relation to risk, and whether his past behaviour, and his conviction suggest he may pose to the community, is a relevant consideration.  On the basis of the Tribunal’s findings above, the Tribunal considers any potential risk the applicant may be to the community has been significantly mitigated by the Court with the ongoing reporting requirements and oversight involving the NSW Police Force until February 2028.  The Tribunal considers the evidence suggests the applicant will be of relatively low risk to the safety of the community, should his visa not be cancelled and the applicant remain in the community with his wife and child whilst his Partner visa application continues to be assessed.    

15. The Tribunal recognises the applicant’s claimed remorse for his actions and the rapid period of time in which he has carried out his community service.  The Tribunal notes that there is no evidence before it of any adverse behaviour by the applicant now for well over two years.  The Tribunal recognises that the applicant appears to have focused on improving his life since his conviction.  He is married, has a young child and has been in full-time employment for some time now.  The Tribunal takes into account the applicant’s assertions that his guilty plea was not an admission of being aware he had the material in question in his possession.  The Tribunal as stated earlier does not accept his self-serving claim, but notes it is not its role for these criminal matters to be re-litigated.  The Tribunal has also considered the risk the applicant may be in the community.  The Tribunal does note that the Court did not see fit to incarcerate the applicant after his conviction.  The Department did not see fit to place the applicant in immigration detention after his visa cancellation, rather he was granted a further Bridging visa to allow him to remain in the community.  The applicant remains under a range of strict requirements and oversight through the NSW Police Force via the Child Protection Register until February 2028.  On the facts, the Tribunal considers the applicant’s presence in the community, as an ongoing risk to the community, is low. 

16. The Tribunal nevertheless recognises the applicant has been convicted of what it considers to be a serious offence.  The production and dissemination of child sex abuse material is sickening to any civilised society.  Whilst he may not have disseminated the material, the possession and potential viewing of such exploitative and degrading material by individuals such as the applicant essentially facilitates its ongoing production across the world.  Having taken all the evidence into account the Tribunal weighs the circumstances in which the ground for the cancellation arose in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

17. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The decision record the applicant provided indicates the applicant responded to the NOICC and has actively engaged in the cancellation consideration process.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

    Whether there would be consequential cancellations under s.140

18. The applicant confirmed at the hearing there are no dependent visa holders as part of his visa.  The Tribunal therefore finds that there will be no consequential cancellations under s. 140 if the visa is cancelled.  The Tribunal weighs this factor neither in favour of, nor against cancelling the applicant’s visa. 

    Mandatory legal consequences of a decision to cancel the visa

19. The applicant in his written submissions stated that cancelling his visa would mean that he was an unlawful non-citizen, and would subsequently be placed into detention and deprived of his liberty until granted a Bridging Visa ‘E’.  It was submitted that any detention would be detrimental to him due to existing restrictions on visitation due to the COVID-19 pandemic.  The applicant through his representative has stated that the Tribunal cannot have any confidence the applicant will be granted a Bridging Visa ‘E’ due to his criminal history.

20. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia.  The Tribunal has considered that indefinite detention is a possibility if his visa was to be cancelled.  The applicant will also be subject to a s.48 bar which will limit his options in applying for further visas in Australia.  Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.  The Tribunal notes that the applicant currently has an application for a Partner visa before the Department.  Should the applicant’s Bridging Visa ‘A’ be cancelled, the applicant may be able to apply for a Bridging Visa ‘E’ that may allow the applicant to remain in Australia until his Partner visa application is considered by the Department.  The legal consequences of the cancellation specific to the applicant are that he is likely to be removed to immigration detention upon cancellation unless granted another visa – the Bridging Visa ‘E’ – that allows him to stay for, or pending the resolution of, his Partner visa application before the Department.  Whilst the Tribunal is unable to speculate on the outcome of the Department’s deliberations as to granting a further Bridging Visa ‘E’, the Tribunal notes that the applicant’s spouse and child, and their reliance on the applicant financially, would all be, arguably, factors in his favour.  On the evidence before it, the Tribunal weighs this factor neither in favour of, nor against cancelling the visa.

    International obligations – including the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

21. The Tribunal notes that the applicant and his wife have a young son, [Master B], who was born on [Date] and is an Australian citizen.  [Master B] attended the hearing with his parents.  The Tribunal is satisfied that the applicant is the father of [Master B]. 

100.   In 1990, Australia ratified the United Nations Convention on the Rights of the Child (CRC).  The Convention came into force the following year.  Relevantly, Article 3 and the preamble respectively states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

and

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can assume its responsibilities within the community.

101.   The Tribunal notes in CFE16 v Minister for Immigration & AnorandCFD16 v Minister for Immigration & Anor [2020] FCCA 1083 at [25] the statement of Riethmuller J:

The distinctions in reasoning process may seem subtle until one considers the purpose and effect of the Convention.  By adopting and ratifying the Convention, Australia has taken a position with respect to the way in which Australia will consider with and deal with the interests of children.  The position adopted by the Commonwealth in ratifying the Convention is one of principle, to make a primary consideration the best interests of the child “in all actions concerning children”.  The Convention does not make the best interests of the child the only primary consideration, but ensures that it is promoted to a position of being a primary consideration against which even serious defalcations by parents or other adults must be weighted.

102.   The Tribunal notes the Courts have found generally it is in the best interests of the child to remain with their family and has therefore taken the CRC into account.  The Tribunal has noted in Promsopa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1480 at [54] where his Honour held that the deprivation of Australian citizen children of the benefits of their Australian citizenship, the social and linguistic disruption of their childhood and the loss of various educational opportunities in Australia were all matters to be considered.

103. Ministerial Direction No 63, which applies to cancellation of Bridging ‘E’ visas where the grounds in s.116(1)(g) and reg. 2.43(1)(p) or (q) (which include criminal charges) are made out, directs decision-makers to treat best interests of the child (BIOC) as a primary consideration. For other Part 5 and 7 cancellations, there is no such Direction in force, but the Department’s Visa Cancellation Instructions instruct delegates to treat BIOC as a primary consideration. Whilst the matter before the Tribunal relates to the cancellation of a Bridging Visa ‘A’ under s.116(1)(g) and reg. 2.43(1)(oa), the Tribunal put the applicant on notice that it would be treating the best interests of the child as a primary consideration when exercising its discretion.

104.   In his submissions to the Tribunal, the applicant, whilst also asserting that best interests of the child ought to be a primary consideration, submitted that when considering the harm and hardship that may be caused to the child should the applicant’s visa be cancelled, the Tribunal needed to give:  “genuine consideration of the human consequences [which] demands honest confrontation of what is being done to people” per Allsop CJ in Hands v MIBP [2018] FCAFC 225 at [3].

105.   The applicant submitted that the cancellation of the applicant’s visa would lead to such a situation, where the applicant would be in the short term separated from his child for an indefinite period through the possibility of his detention.  He has asserted that the long-term risk is long-term separation of the applicant from his child, a situation foreshadowed by the applicant’s wife in her own oral testimony where she stated that she would remain in Australia with their child if the applicant was forced to depart. Cancellation would result in a highly probable separation of the applicant from his young son.  

106.   At the Tribunal’s hearing the applicant discussed his relationship with his young son, and his concern about the impact separation would have on the child’s ongoing development.  Both the applicant and [Ms A] discussed their concerns as to the challenges moving to and living in India would present to their young son. 

107.   The Tribunal noted that previously the applicant’s wife [Ms A] had stated that she and their child would follow the applicant to India should he be removed from Australia.  The Tribunal noted that such a situation would allow the family to remain together.  At the hearing [Ms A] said that she had subsequently considered the situation, but would ultimately remain in Australia with their young son even if the applicant’s visa was to be cancelled and he be compelled to depart Australia.  She stated that she had now lived in Australia for over eight years, and her son was of such a young age that she did not want him to lose the support and opportunities available in Australia.

108.   Post-hearing the applicant through his representative also submitted seven articles that discussed the corrosive impact separation of a father and a young child due to deportation or detention/incarceration can have upon the child.  The Tribunal has considered these articles.  It was asserted that these articles demonstrated that the separation of a parent from a child can have enduring consequences for the child in terms of their social, emotional and psychological development. The absence of a parent, it was argued, also leads to increased rates of homelessness/disrupted living, poverty and creates a risk of the child engaging in criminal behaviour going forward.

109.   The Tribunal has considered the evidence before it in relation to the best interests of the child. Having regard to the existing authorities and consistent with Departmental guidelines, the best interests of the applicant’s child is a matter that should be given primary consideration when the Tribunal exercises its discretion in a cancellation case such as this.  The Tribunal is of the opinion that it is therefore relevant to consider the circumstances of the applicant’s young son and to make an assessment as to his best interests.  The Tribunal is obviously aware that the impact of the cancellation of the applicant’s visa and his potential deportation or remaining in immigration detention, are all matters that extend beyond the applicant himself and impact upon the applicant’s child (as well as of course on his wife [Ms A]). 

110.   The Tribunal accepts the argument that it is much more preferable for a child to remain with both their mother and father.  The family unit is a key plank of a cohesive society.  A household where a young child has both a mother and a father to share their caring, nurturing, growth and development is preferable to a situation where the child is separated from one of those parties. 

111.   The Tribunal accepts the evidence that the applicant plays an important role in the care and support of his and [Ms A]’s child.  He is the family breadwinner through his employment.  Given [Ms A] has no other family members in Australia with the impending departure of her sister, the applicant plays an important role in providing additional ongoing practical support to [Ms A] in caring for their son. The Tribunal is also satisfied that he is providing firm emotional support to [Ms A], support that is especially of value in the first 12 months of raising a first child.  The Tribunal notes the stress and anxiety [Ms A] has felt in the past few years and her fears of her family unit being displaced.  The Tribunal is satisfied that the applicant is providing valuable emotional and practical support to [Ms A], and to their son. 

112.   The Tribunal notes that, with international borders opening up, the applicant’s wife [Ms A] and their son could travel together to India if they so desired.  The opportunity for the child to remain with both of his parents, and for their existing family unit to be maintained in-person is clearly available to the applicant.  [Ms A] was particularly forceful however in her evidence that it is her desire – and intention – for her son to remain in Australia. 

113.   Of course, there is no requirement that [Ms A] or the applicant’s son depart with him should his visa be cancelled and he depart Australia.  They are each Australian citizens in their own right.  Any decision made to depart with the applicant and resettle offshore is a decision they would have to make.

114.   On the evidence of [Ms A], the applicant and [Ms A] would choose separation rather than the family moving back together to India.  On the evidence of the parties, this would result in their son remaining with [Ms A] in Australia whilst the applicant returned to India.  Whether this would actually be the outcome if faced with this decision is a matter of speculation.  The Tribunal notes that [Ms A] has previously stated she would in fact travel with the applicant.  The Tribunal notes that the implications and consequences of each potential decision may not always be fully considered when providing a response to this question. 

115.   The Tribunal accepts the submission that separation – the applicant returning to India, and [Ms A] and their son remaining in Australia – would ultimately not be in the best interests of the child.  The Tribunal considers that separation of the family unit, and the loss of his financial support, as well as the genuine emotional support and practical assistance he provides in caring for the child, will be detrimental to the best interests of the applicant’s son.  His absence from the family unit would be clearly detrimental to [Ms A], who the Tribunal accepts is heavily reliant on the applicant emotionally as well as practically.  His absence would weigh upon her heavily, and potentially have adverse consequences on the applicant’s son who will be totally reliant on his mother.  The Tribunal notes furthermore the absence of any other family members and friends that may be able to assist in alleviating the strain of the applicant’s absence. 

116.   The applicant works full-time.  He is the breadwinner of the family.  The Tribunal accepts he plays a genuine and meaningful role in caring for his son.  The Tribunal accepts he is caring for and providing key emotional support to [Ms A], support that assists her in providing the practical care and support for their young son whilst he is at work.  If the applicant is not available to undertake these roles, it is likely that the applicant’s son will be disadvantaged.  Given the close relationship between the applicant and his son, [Ms A]’s heavy reliance on the applicant for financial and emotional support, and the potential for significant disruption to the family unit, the Tribunal is of the view that in the circumstances of this case, separation of the family unit via the cancellation of the applicant’s visa would have a detrimental effect upon the child, and consequently, would not be in their best interests.     

117.   If the applicant and [Ms A] determined to return to India together with their son, the Tribunal considers any detrimental impact upon the child would be more limited.  The family unit would be intact.  The applicant’s son is particularly young, so adapting to life would be much less of a challenge.  The Tribunal appreciates the desire of the parties, particularly [Ms A] in her evidence, for their son to avail himself of the opportunities of life in Australia. 

118.   Whilst the Tribunal can only speculate, it remains of the opinion, particularly given [Ms A]’s evidence which it considered reliable, that the more likely scenario is [Ms A] and the applicant’s son would remain in Australia if the applicant’s visa was to be cancelled and he was to return to India.   Such a situation, where [Ms A] is left in Australia to raise their son by herself, for the circumstances outlined above, would not be in the best interests of the child.   

119.   On the evidence before it in relation to international obligations and specifically, the best interests of the child, the Tribunal weighs this factor strongly against cancelling the applicant’s visa.

Any other relevant matters

120.   The applicant provided a letter of support dated 23 April 2019 signed by Mr Ranjeet Singh, President of The Sikh Association of Sydney INC. Mr Singh confirms the applicant is a regular visitor and devotee of the Sikh Temple, Revesby and undertakes volunteer work including preparing and serving food to the congregation. This is supported by the letter of support signed by Gurmeet Singh, Priest at Gurudwara Sri Guru Singh Sabha, Revesby and dated 3 October 2021.  The Tribunal has taken into account these references as to the character of the applicant.

121.   There are no other relevant matters before the Tribunal.

Conclusion

122.   The Tribunal has weighed the considerations.  In this case, the Tribunal has considered the seriousness of the applicant’s conviction and the blight that child abuse material and pornography is upon contemporary society.  The Tribunal has considered his claim that his guilty plea was based upon an admission of possessing the material rather than being aware he was in possession: a claim that the Tribunal ultimately finds to be disingenuous and not indicative of an individual taking genuine responsibility and acknowledging his culpability in acquiring this material.  Quite frankly, the Tribunal does not accept his claim that he was unaware that he had acquired the material. 

123.   In considering the circumstances in which the ground for the cancellation of the applicant’s visa arose, the Tribunal has noted nevertheless that the authorities have clearly made certain assessments as to the risk the applicant is to broader society.  He did not receive a custodial sentence when pleading guilty to the offence.  The Department did not move to place him in immigration detention.  When the Department cancelled his Bridging visa ‘A’ early this year, they simply provided him with a further Bridging visa ‘E’ rather than place him into detention. 

124.   The authorities furthermore have put in place a number of mechanisms to ensure oversight of the applicant remains for many years ahead.   The applicant will remain on the NSW Child Protection Register until 5 February 2028.  A wide range of regular and far-reaching reporting obligations remain in place.  The penalties for breaching any element of the Register, which includes obligations and reporting on internet usage, are significant.  The Tribunal considers these ongoing obligations assist in alleviating any risk the applicant might pose. 

125.   The Tribunal furthermore notes that there is no evidence or claim of any adverse interaction the applicant has had with the Police or any other law enforcement authorities at any other time either in Australia or previously in India.  The applicant on the evidence has cooperated fully with local authorities and in fact completed his requirements as part of his Community Correction Order with great motivation and energy. 

126.   The Tribunal also paid considerable attention to the applicant and [Ms A]’s claims concerning the harm and hardship they would face, individually and more critically as a young family, should the applicant’s visa be cancelled.  The Tribunal has sympathy for [Ms A], who it found to be an articulate, genuine and considered witness.   She has had to bear a considerable amount of the emotional cost of the applicant’s visa cancellation whilst pregnant and then raising their young son.  She is clearly very committed to the relationship and has done much to support the applicant.  The Tribunal accepted that [Ms A] especially would face some considerable and onerous challenges should the applicant’s visa be cancelled.  The Tribunal, noting [Ms A]’s lack of family support in Australia, is particularly concerned as to the impact the applicant’s absence from Australia might have upon [Ms A].  The Tribunal is particularly mindful of the “knock-on effect” any stress and anxiety [Ms A] might face from the cancellation of the applicant’s visa might, even inadvertently, have upon the applicant and [Ms A]’s son.  Their son is only [Age] months old.  The emotional and practical demands of a child that age are well known.  The Tribunal is not confident of [Ms A]’s ability to manage this situation without the ongoing assistance of the applicant financially, mentally and emotionally.  The Tribunal is very aware that the best interests of the child are a primary consideration in a review such as this.  Ultimately, it is the best interests of the applicant and [Ms A]’s son, an Australian citizen, that have led the Tribunal to the conclusion that, on balance, the applicant’s visa should not be cancelled. 

127.   Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

128.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Justin Owen
Senior Member