Singh (Migration)
[2020] AATA 1449
•23 April 2020
Singh (Migration) [2020] AATA 1449 (23 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Ratinderpal Singh
CASE NUMBER: 1933742
HOME AFFAIRS REFERENCE(S): BCC2017/4182413
MEMBER:Antoinette Younes
DATE:23 April 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.
Statement made on 23 April 2020 at 1:42pm
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – visa grant based on fact or circumstance that did not exist – no visa held at time of application – previous substantive visa application refused, refusal affirmed and associated bridging visa ceased – invitation to attend hearing of review of refusal of substantive visa and notification of decision sent by post to last known address – no evidence of notification of change of address – circumstances beyond applicant’s control – visa granted by mistake – applicant and department taken to have received documents, whether or not they in fact had – discretion to cancel visa – study, work and community involvement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(9)(a), 116(1)(aa), 360A(2), 375A, 379A, 379B, 379C, 379D
Migration Regulations 1994 (Cth), Schedule 2, cll 020.211, 020.221
CASES
Lin v MIAC(2008) 218 FLR 177
Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104
Zubair v MIMIA (2004) 139 FCR 344
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 27 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(aa) on the basis that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by telephone on 15 April 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
SECTION 375A CERTIFICATE
Section 375A provides that certain information is only disclosable to the Tribunal if the Minister has certified that the disclosure would be contrary to the public interest or for any other reason specified in the certificate.
If there is such a certificate, the Tribunal must do all things necessary to ensure that the information and/or documents subject to the certificate are not disclosed to any other person but the Member to whom the matter is constituted for the purpose of conducting the review: s.375A(2)(b) of the Act.
The Departmental file contains a s.375A certificate on the basis that the disclosure of information contained in the document subject to the certificate would be contrary to the public interest as the information was provided in confidence and that the provider of the information has not consented to the disclosure of the material.
The Tribunal advised the applicant in the course of the hearing that it considered the certificate to be valid. The Tribunal recognises the Australian Privacy Principles (APP6) set out in Schedule 1 of the Privacy Act 1988. In accordance with its procedural fairness obligations, the Tribunal discussed with the applicant the gist of the allegations made in the document.
As indicated in the course of the hearing, the Tribunal gives those allegations no weight due to the time that has elapsed since the making of those allegations (2016), lack of direct relevance to the issues for determination, and the fact that the allegations have not been tested.
Consideration of claims and evidence
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(aa).
If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
s.116(1)(aa) – Fact or Circumstance for visa grant did not exist
A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.
In the course of the hearing, the Tribunal discussed with the applicant the information contained in the delegate’s decision record provided by the applicant in support of the application for review. Specifically, the Tribunal noted that the information indicates that:
· On 7 January 2014, the applicant was granted a Bridging B (subclass 020) visa (‘BVB’). The decision to grant him that visa was based, wholly or partly, on the existence of a particular fact or circumstance that did not exist.
· When granting the BVB, the delegate was satisfied that the applicant met and continued to meet the relevant regulations, namely 020.211 and 020.221 stating that at the time of application the applicant is the holder of a Bridging A (Class WA) visa, or Bridging B (Class WB) visa and that at the time of decision the applicant continues to satisfy those criteria.
· At the time of the applicant’s application for a BVB on 7 January 2014, he was not the holder of a Bridging A or Bridging B visa. The applicant last held a Bridging B visa which was associated with his subclass 572 visa application. The subclass 572 application was refused on 10 August 2011 and the refusal was affirmed by the MRT on 20 June 2013, meaning that the associated Bridging B visa ceased on 29 July 2013.
· Departmental records indicate that for the period 30 July 2013 to 7 January 2014, the applicant did not hold a valid visa of any type and resided in the community as an unlawful non-citizen. Consequently, at the time he lodged the BVB application on 7 January 2014, the applicant did not hold a BVA or a BVB to meet the requirements of regulations 020.211 and 020.221.
· Consequently, the decision to grant the applicant the BVB on 7 January 2014 was based partly on the fact that he met the relevant regulations, 020.211 and 020.221. However, as that fact or circumstance did not exist, the decision to grant the applicant the BVB was based in part on the existence of the fact or circumstance that did not exist.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC)
On 18 October 2019, the Department sent to the applicant a NOITCC to which the applicant responded on 30 and 31 October 2019.
Amongst other matters, the NOITCC referred to the grounds for cancellation, “…at the time of your application for your Bridging B visa on 7 January 2014, you did not hold a Bridging visa A or a Bridging visa B. You last held a Bridging B visa associated to your Student Further Stay (subclass 572) visa application which was refused by the Department on 10 August 2011. The decision to refuse your Student Further Stay visa application was affirmed by the Migration Review Tribunal on 20 June 2013 and your associated Bridging B visa ceased on 29 July 2013”.
In the responses to the NOITCC and to the Tribunal, the representative submitted that:
·The application for review (of the student visa) was not finally determined within the meaning of s.5(9)(a) of the Act which provides that an application for review is finally determined when a decision has been made that is no longer subject to any form of review. Final determination occurred when both the Department and the applicant are notified.
·At the time of lodgement of the BVB, neither the applicant nor the Department had been notified of the MRT’s decision. While pursuant to s.430A(3), a failure to notify of the outcome of a decision on review does not impact the validity of the decision, the decision of Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY [2013] FCAFC 104 (11 September 2013), is authority for the proposition that the case is not finally determined.
·The applicant was never invited to a hearing which “affects the validity of the decision which means that the case has not been finally determined not only due to lack of notification, but also due to the fact that decision on review is invalid due to jurisdictional error”.
·The MRT failed to notify the Department as there is “no other reasonable explanation in context of the fact that the client has been granted a BVB…”
·To enable the grant of the BVB, Departmental records must have indicated that the applicant was “lawful” at that time. It is most likely that the Department had no record of the MRT’s decision claimed to be made on 20 June 2013.
·It is unlikely that an experienced officer (named) processing the BVB application would have not considered the crucial fact that the applicant did not hold a BVA at the time of application and decision. Consequently, the BVB did not cease on 29 July 2013 as claimed. The assertion is that Departmental records had been reviewed and backdated which should not have occurred.
·The applicant is a genuine student and he has “never intentionally manipulated any of his circumstances in order to extend his stay…” There is no ground to cancel the visa due to lack of notification by the MRT of the review outcome. The applicant has never been unlawful in Australia.
·The visa should not be cancelled as processing and departure from Australia is not possible due to COVID-19.
In support of the responses and to the Tribunal, the applicant provided the following documents:
·Email from Australia Post on behalf of Online Research Unit dated 8 March 2013 referring to the applicant’s request to redirect his mail.
·Email from Australia Post on behalf of Toyota dated 23 March 2013 thanking for “lodging an application to redirect mail”.
·Letters of support from the Punjabi Cultural Association dated 23 October 2019, Sher-E-Punjab dated 23 October 2019, Gurdwara Sahib Brisbane dated 20 October 2019. Those letters refer to the applicant’s assistance and coaching to young people, as well as his involvement in charitable and citizenship events and respect amongst the Sikh community.
·New England College certificate referring to the applicant’s completion of Diploma of Management on 27 April 2015.
·Statutory Declaration of the applicant dated 29 October 2019 indicating that the applicant was never invited to the “AAT” (referring to the MRT) hearing or received the decision record.
·MRT-RRT case summary for matter number 1109295, being the Tribunal’s decision relating to the student visa refusal, showing amongst other things, that the hearing invitation was returned to the MRT. The Tribunal observes that no other document of the MRT had been returned, such as the Decision Record or its notification.
The applicant gave evidence that he never received the MRT hearing invitation or Decision Record. He stated that he went to the Department in 2014 because he needed permission to go to India so that he could attend his brother’s wedding. He said he never thought he was unlawful in Australia and on presentation of the passport, he was granted the BVB.
The Tribunal advised the applicant that the Tribunal accessed its database system to confirm the details set out in the delegate’s decision record concerning the notification of the MRT decision of matter 11009295.
The Tribunal noted that the MRT decision record dated 19 June 2013 was sent to the applicant by post to the address that the applicant had provided in the application for review, which was the last known address. The Tribunal indicated that this would suggest that the notification was proper and in accordance with the law. The Tribunal noted that this indicates that the matter had been ‘finalised’.
The applicant reiterated that he never received correspondence from the MRT.
The applicant gave evidence that he studied and completed a Diploma of Management in 2015. He said subsequently, he did not study as he was waiting for the MRT review outcome. He said he worked as a taxi driver for a while. He said he has no family, or a partner in Australia. He said he wanted to stay in Australia awaiting the outcome of the MRT review. He said he did not follow things up because he thought that the MRT process was lengthy. He continued to assert that he had done nothing wrong.
In oral submissions, the representative referred to the applicant being lawful in Australia and questioned the difficulty in being granted the BVB if unlawful. The representative indicated that the applicant was shown that the system indicated that the applicant was lawful. The representative expressed the opinion that the decision to grant the BVB is a valid decision and the applicant was lawful.
The represented submitted that it would be helpful to make a finding that the applicant was lawful at the time the BVB was granted and consequently that the ground for cancellation does not arise. The Tribunal noted the inconsistent information about the applicant’s status given that he was granted the BVB. The representative further submitted that the MRT acted unfairly and it was “negligent” in finalising the review in these circumstances as the mail had been returned to sender.
FINDINGS & REASONS
Was the applicant properly notified of the hearing and MRT decision record of matter number 1109295?
The applicant essentially contends that he did not receive correspondence from the MRT, specifically the notification of the decision and consequently the review was not finally determined. It was argued that as such the grant of the BVB on 7 January 2014 was valid as the applicant satisfied the relevant regulations. The applicant also argued that it was unfair of the MRT to proceed and make a decision in circumstances where the MRT knew that the hearing invitation had been returned.
The Tribunal is of the view that procedural fairness questions are normally determined by the Courts where grounds alleging jurisdictional error are determined. However, in this instance, it is appropriate for the Tribunal to deal with those submissions.
Whether the applicant held a BVA or BVB at the time he was granted the BVB on 7 January 2014 is a question of fact. In this instance, whether the applicant personally knew that he was unlawful at the time is not directly relevant to the determination of that fact, although it could be relevant to the exercise of discretion. What is a directly relevant question concerns the notification of the MRT decision dated 19 June 2013.
The material provided by the applicant, namely MRT-RRT Case Summary shows entries that the Hearing Invitation was sent on 7 May 2013 but it was returned to sender on 16 May 2013. The MRT-RRT Case Summary also shows entries that notification by post of the Decision to both the Department and to the applicant occurred on 20 June 2013. The MRT-RRT Case Summary shows the applicant’s “Authorised address”, correctly referred to in the delegate’s decision record. As discussed in the course of the hearing, this was the applicant’s last known address which he provided in the application for review – as mentioned by the delegate.
The applicant has claimed and provided corroborative evidence that he had his mail redirected around March 2013. The Tribunal accepts that the applicant did apply for his mail to be redirected but there is no evidence before the Tribunal that he notified the MRT of his change of details. The evidence before the Tribunal indicates that the MRT sent correspondence such as the hearing invitation and the Decision Record to the last known address which the applicant provided to the MRT.
The essence of the applicant’s contention is that the MRT hearing invitation and the decision record were not correctly notified and therefore the MRT decision has not been finally determined as contemplated by s.5(9)(a).
The requirements for valid notification of Tribunal documents at the relevant time in 2013, contained in Part 5 and 8A of the Act. In relation to Part 5 reviews, the hearing notice had to:
· tell the applicant that he or she is invited to appear to give evidence and present arguments;
· tell the applicant that he or she may give the Tribunal written notice that the applicant wants the Tribunal to obtain evidence from a witness;[1] and
· contain a statement of the effect of s.362B.[2] That is, if the applicant fails to appear at a scheduled hearing, the Tribunal may make a decision without taking any further action.
[1] s.361.
[2] s.360A(5).
Section 360A(2) requires that the notice be given to the applicant by one of the methods specified in s.379A such as, sending the notice to the last residential address provided to the Tribunal by the recipient in connection with the review.
Section 379A prescribes the required methods for notification of hearing notices and Decision Records. If a person is notified by one of the specified methods in s.379A, the document will be taken to have been received. Section 379C provides that the person is taken to have received the document, irrespective of whether or not it was in fact received. If sent by post - 7 working days after the date of the document, if dispatched from a place within Australia to an address within Australia. An essential purpose of s.379A is to permit delivery or service of documents to be deemed to have occurred even if that may not have occurred in fact.
In relation to documents sent by the Tribunal to the Secretary of the Department, if the Secretary is notified by one of the methods in s.379B, the document will be taken to have been received in accordance with s.379D. Section 379D provides that the Secretary is taken to have received the document, irrespective of whether or not it was in fact received. The delegate’s decision record refers to the Departmental records in the Integrated Client Services Environment (ICSE) “confirm that notification of the MRT decision to affirm the Student visa refusal on 20 June 2013. There is no evidence before me indicating that the Department’s records relating to this decision were “reviewed and backdated” at any stage as claimed by the applicant”.
The Tribunal appreciates the submissions that the Department must not have been aware of the MRT’s decision of 19 June 2013 because the BVB was granted in January 2014 by an experienced decision-maker. There is some merit in this argument but it is a serious allegation to make that Departmental records were reviewed and backdated as this implies bad faith and inappropriate conduct by Commonwealth employees. The Tribunal has carefully considered those allegations but there is no evidence before the Tribunal of any inappropriate dealing with ICSE records.
On the basis of the available information, the Tribunal finds that the applicant was correctly invited to a hearing and that both the applicant and the Department were correctly notified of the MRT decision record of 19 June 2013. Consequently the Tribunal finds that the MRT review was finally determined in accordance with s.5(9)(a) of the Act and that technically the applicant was unlawful from that date until he was granted the BVB on 7 January 2014.
On the evidence, the Tribunal accepts as being plausible that the applicant did not know of the MRT hearing or the finalisation of the review. This is consistent with his own evidence that he went to the Departmental office and was in fact granted the BVB in January 2014. The Tribunal is satisfied that the delegate who granted the BVB in January 2014 made a mistake in finding that the applicant met regulations 020.211 and 020.221. The Tribunal is of the view that even competent, diligent, and experienced decision-makers can make mistakes. The Tribunal can only speculate how this error occurred but there is now the question that of the impact of the delegate’s error.
On occasions, the Tribunal becomes aware of a defect or denial of natural justice in the primary decision. The Courts have held that the Tribunal is able to review such decisions, provided they are either Part 5 or Part 7 reviewable and the subject of a valid application for review, and in doing so may ‘cure’ the defect in the primary decision[3]. In Zubair v MIMIA, the Court observed that the term ‘decision’ is not defined in the Migration Act. Further, there is no textual suggestion that the expression ‘MRT-reviewable decision’ or by implication ‘RRT-reviewable decision’ (now Part 5-reviewable decision and Part 7-reviewable decision) should be restricted in some way so as to refer only to decisions which have been made by a delegate after full compliance with the mandatory procedural prescriptions of the Migration Act.[4] The Court found there was no reason why the Tribunal should not have the power (or obligation) to review a decision properly brought before it where the delegate may have failed to comply with a statutory procedural requirement, or in some other way may have committed an error of law. It is not the role of the Tribunal to cull out primary decisions which involve a jurisdictional error on the part of the primary decision-maker.[5] The Tribunal should be concerned with whether a reviewable decision has ‘in fact’ been made for the purposes of accepting jurisdiction, not the legal effect of such a decision.
[3] See Plaintiff M174/2016 v MIBP [2018] HCA 16 (18 April 2018) at [52] and [70] per Gageler, Keane and Nettle JJ (Gordon and Edelman JJ agreeing) the High Court followed the construction in Collector of Customs v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307 finding that it is within the IAA’s review power to review a ‘decision’ to refuse to grant a protection visa to a fast track applicant regardless of whether or not that decision is legally effective confirming the view for the Tribunal. See also Zubair v MIMIA (2004) 139 FCR 344 particularly at [32], citing Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116, which was followed in Fang v MIMIA [2004] FCA 1387 (RD Nicholson J, 29 October 2004) at [35]; Bao v MIMIA [2004] FMCA 1044 (Smith FM, 14 December 2004) at [33] to [39]; and Lin v MIAC (2008) 218 FLR 177 at [57].
[4] Zubair v MIMIA (2004) 139 FCR 344.
[5] Zubair v MIMIA (2004) 139 FCR 344 at [28].
In the course of considering the application, the primary-decision maker might misconstrue a criterion for the grant of the visa contained in Schedule 2 or make some other error, such as ignoring relevant material. The Tribunal upon review of that decision would have the power to consider the application, but could, by the completion of a full merits review in accordance with statutory procedures ‘cure’ the legal error in the primary decision. In Lin v MIAC, the Federal Magistrates Court took the view that the Tribunal could cure a defect in the primary decision without specifically addressing the particular error in the delegate’s decision. As long as the Tribunal properly conducts the review which it is empowered and obliged to conduct and, after a full merits review authorised by the Migration Act and Regulations, affirms the delegate’s decision, the review would cure the delegate’s decision of any defect.[6] The Court in Lin also considered the point in time at which the defects may be said to be ‘cured’. Referring to the powers in s.349 [s.415] the Court noted the distinction between the various options available to the Tribunal in disposing of the review. It drew an inference that when affirming a decision, the Tribunal is not making a new decision but the conduct of the review operates to make good that which was affected in the delegate’s decision. That is, the delegate’s decision remains the operative decision as of its date.[7]
[6] Lin v MIAC (2008) 218 FLR 177 at [36].
[7] Lin v MIAC [2008] FMCA 742 (2008) 218 FLR 177 at [62]. See also Daher v MIEA (1996) 141 ALR 311 at 313 and Kim v MIAC (2008) 167 FCR 578 per Tamberlin J at [23] with whom Besanko J agreed at [42].
In those circumstances, the Tribunal is satisfied that the Tribunal is able to determine the review of the visa cancellation despite the error made by the delegate in granting the BVB in January 2014.
In consideration of the evidence as a whole, the Tribunal finds that the decision to grant the applicant the BVB on 7 January 2014 was based partly on the fact that he met regulations 020.211 and 020.221. However, as that fact or circumstance did not exist, the decision to grant the applicant the BVB was based in part on the existence of the fact or circumstance that did not exist.
Therefore, the Tribunal finds that the ground for cancellation in s.116(1)(aa) 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
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
As mentioned in the delegate’s decision record, the applicant first travelled to Australia on 16 January 2009 as the holder of a student visa and did not complete any course while the holder of that visa. However, he has provided evidence that he completed a Diploma of Management in April 2015 and the Tribunal gives weight in favour of the applicant. The applicant has contended that he is a genuine student.
The Tribunal is not reviewing the decision to refuse the student visa as that has been finalised by the MRT on 19 June 2013 based on the material available to the MRT at the time.
On the evidence, the Tribunal accepts that the applicant travelled to Australia to study consistent with the purpose of the student visa he was granted.
The applicant gave evidence that he has not undertaken any further studies and he has worked as a taxi driver. In submissions to the Tribunal, a request has been made for a referral for Ministerial Intervention to permit reapplication for a student visa. As advised in the course of the hearing, Ministerial Intervention is non-compellable and it is a matter for the applicant to make a direct request. The Tribunal makes no comments about whether any such request would meet the guidelines. The Tribunal is of the view that this supports a finding that the applicant has an intention to study in Australia and the Tribunal gives this aspect some weight in his favour. However, the Tribunal does not consider this intention to mean that the applicant has a compelling need to stay in Australia.
The applicant has raised the issue of the COVID-19 pandemic contending that it is not possible to depart Australia.
It is correct that currently, there are travel restrictions but that does not mean that this is a permanent arrangement or that the applicant would be forced to depart Australia under these conditions.
On balance, the Tribunal gives this consideration limited weight in the applicant’s favour.
·the extent of compliance with visa conditions
There is no evidence before the Tribunal relating to breach of visa conditions.
The Tribunal gives this consideration neutral weight.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that he has no family in Australia.
The Tribunal appreciates that the applicant came to Australia on a student visa to study and the evidence shows that he has studied, consistent with that aim. The Tribunal acknowledges that the applicant wants to undertake further studies and that it would be in his interest to do so. The applicant has been in Australia for approximately 11 years and has claimed that he has remained in Australia awaiting the outcome of the MRT review, although he did not follow up the MRT review, stating that he thought that the review process took a while.
It is reasonable to suggest that cancellation of the visa could result in hardship such as financial, emotional and psychological. Without intending to sound harsh, the Tribunal is of the view that the applicant has chosen to invest time in circumstances where he could have mitigated any adverse impacts by departing Australia. He has also worked in Australia benefiting financially.
The Tribunal gives this consideration limited weight in the applicant’s favour.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the ground for cancellation arose was when the applicant was granted the BVB on 7 January 2014 and the grant was based partly on the fact that he met regulations 020.211 and 020.221 when that fact or circumstance did not exist. That is, the decision to grant the applicant the BVB was based in part on the existence of the fact or circumstance that did not exist. The Tribunal gives this aspect significant weight in favour of cancellation.
The Tribunal appreciates that the grant of the visa was not within the applicant’s control; he was granted the BVB following a determination by the delegate who made an error. The Tribunal gives this aspect weight in favour of the applicant. However, being granted a visa when not meeting threshold criteria is a serious matter. The cancellation scheme is not about punishment or reward but is essentially about maintaining the integrity of the migration program.
The Tribunal has considered the circumstances very carefully and in light of the above comments has decided to give this aspect weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The applicant took the cancellation process seriously and responded to the NOITCC. There is no evidence before the Tribunal that he was uncooperative.
The Tribunal gives this aspect weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal of ay consequential cancellation.
The Tribunal gives this aspect neutral weight.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. He however could be eligible to apply for a BVE to enable him to make travel arrangements and voluntarily depart Australia.
The applicant would also be impacted by s.48 of the Act which means that he may face difficulties in applying in Australia for any further visas. He could apply for an Australian visa offshore and any such application would be assessed on its merits, including any application of Public Interest Criterion 4013 (PIC 4013). The Tribunal considers potential detention and removal from Australia as well as the s.48 bar and PIC 4013 to be intended legislative consequences.
The Tribunal gives this aspect limited weight in the applicant’s favour.
·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no information before the Tribunal to suggest that any children would be impacted or that Australia would be in breach of any of its non-refoulement obligations in case of cancellation.
The Tribunal gives this aspect neutral weight.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The BVB is not a permanent visa. However, the Tribunal appreciates that the applicant has made a contribution to the Australian community. The applicant has provided Letters of support from the Punjabi Cultural Association dated 23 October 2019, Sher-E-Punjab dated 23 October 2019, Gurdwara Sahib Brisbane dated 20 October 2019. Those letters refer to the applicant’s assistance and coaching to young people, as well as his involvement in charitable and citizenship events and respect amongst the Sikh community. The Tribunal acknowledges the applicant’s contribution and ties to those organisations that could also be impacted by the cancellation in the sense of losing the applicant’s involvement.
The Tribunal gives weight in the applicant’s favour for the contribution.
·any other relevant matters
The Tribunal is not aware of any other relevant matters.
Concluding remarks
The Tribunal has carefully considered the material before it individually and cumulatively. There are aspects in the applicant’s favour, particularly the fact that the grant of the BVB in January 2014 was not within his control. The Tribunal acknowledges that the cancellation guidelines, as discussed above contemplate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. That is a ‘general rule’ and not a mandatory or strict application. The Tribunal is satisfied that although this aspect is in the applicant’s favour, on balance of the totality of the considerations, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.
Antoinette Younes
Senior Member
0