Singh (Migration) - [2025] ARTA 451

SINGH (MIGRATION) [2025] ARTA 451 (13 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Harpreet Singh
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2509197
Tribunal:Senior Member K. Raif
Place:Sydney
Date:13 March 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 13 March 2025 at 1:20pm
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – prohibited import – sexualised image on phone – procedural fairness – emotional and financial support to partner in Australia – no immigration clearance – possible removal from Australia – application for a Skilled visa – decision under review set aside
LEGISLATION
Customs (Prohibited Imports) Regulations 1956, s 4A
Customs Act 1901, s 186
Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 2, cl 482.217; Public Interest Criterion 4013; r 2.43
CASES
Zubair v MIMIA (2004) 134 FCR 213
STATEMENT OF REASONS
Application for review

This is an application for review of a decision 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 (Cth) (the Act).
The applicant is a national of India, born in December 2000. He was granted a Bridging B visa (BVB) in January 2025. On 4 March 205 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116 of the Act. The applicant provided his response and his visa was cancelled. The applicant seeks review of the delegate’s decision.
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 on 13 March 2025 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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(g). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Regulations. If a visa may be cancelled under s 116(1)(g), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply.
In the present case, the ground in reg 2.43(1)(t) is relevant. That provision relevantly a visa may be cancelled:
(t)in the case of the holder of a temporary visa - that the Minister reasonably believes that the visa holder:
(i)has imported goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies; and
(ii)has not been granted a permission under subregulation 4A(2) of those Regulations to import the goods.
Regulation 4A(1A) of the Customers (Prohibited Imports) Regulation 1956 relates to publication and any other goods that
(b)describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who appears to be, a child under 18 (whether the person is engaged in sexual activity or not)
Was the applicant afforded procedural fairness by the delegate?
In his submissions to the Tribunal dated 5 and 12 March 2025 the applicant states that he must be afforded procedural fairness and a fair opportunity to address the allegations before a decision is made. The applicant outlined what he claims to have been significant breaches of procedural fairness by the delegate, which he claims, had rendered the cancellation invalid. The applicant refers to inability to access a lawyer, insufficient time to respond to the NOICC, failure to offer explanations about the ground for cancellation and the process, etc.
The Tribunal acknowledges these submissions but makes no findings as to whether the delegate failed to afford the applicant procedural fairness. This is because even if breaches of procedural fairness were established, rendering the primary decision invalid, the Tribunal would have the power to review such a decision.[1] The Tribunal is satisfied that the applicant has been afforded procedural fairness through the review process.
[1] See Zubair v MIMIA (2004) 134 FCR 213.
Does the ground for cancellation exist?
The applicant provided to the Tribunal a copy of the NOICC and a copy of the primary decision record. It indicates that the applicant was last granted the BVB on 21 January 2025 and he entered Australia holding that visa on 4 March 2024. It is stated that on arrival, the applicant was subjected to an examination under s. 186 of the Customs Act 1901 conducted by a qualified ABF officer and during the examination an image was located under photos on Whatsapp application appearing to depict a minor wearing a school uniform with genitalia exposed, posed in a sexual manner. It is stated that this image was sent by the applicant to an unknown contact on 11 December 2024. It is stated that the image has been classified as a prohibited import under regulation 4A of the Customs (Prohibited Imports) Regulations 1956 by a qualified ABF officer.
On 4 March 2025 the applicant was given the NOICC and he provided his response on the same day. The applicant is reported to have stated that he did not know where the image came from and the applicant stated that he would take out the image and ‘it would never happen again’. The applicant claimed that his phone was not password-protected, which the delegate found to be untrue as the applicant had provided his code to the officer.
The applicant submits in his written submissions to the Tribunal that the Department bears the onus of proving the image fell within r. 4A(1A) of the definition of prohibited goods and such a determination must be based on logical and rational grounds. The applicant refers to the industry context and states there is absence of probative evidence in this case. The Tribunal does not accept that submission. The Referral to BCO sheet that appears on the Departmental file sates that the image appears to ‘depict a minor in school uniform with genitalia exposed, posed in a sexualised manner’.
The Tribunal is satisfied that such an image falls within r. 4A(1A)(b) of Customs (Prohibited Imports) Regulations 1956 as it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person who is, or who appears to be, a child under 18 (whether the person is engaging in sexual activity or not).
The applicant submits that he was unaware of the origin of the image on his phone and he states that there was no evidentiary basis for the decision to cancel. In his submission to the Tribunal the applicant also stated that he received the image via WhatsApp and forwarded it to another group chat without scrutinising it, assuming it was legal adult material by reference to similar images on other sites. The applicant states that his credible explanation and lack of intent or awareness negates any inference of deliberate importation or prohibited goods.
The Tribunal does not accept that the ground for cancellation requires consideration of the applicant’s knowledge that the image constituted prohibited material. The image was contained in the applicant’s phone. The applicant was aware of the image and, on his own evidence, posted the image to a chat group. The Tribunal does not consider that it is necessary to determine that the applicant was aware the image constituted prohibited material (although the applicant’s knowledge and intent may be relevant to the exercise of discretion).
The Tribunal has formed the view that the image in question falls within the definition of r. 4A(1A)(b) of Customs (Prohibited Imports) Regulations 1956. The Tribunal finds that the fact that the applicant had possession of his phone when he entered Australia, with the phone containing the relevant image, the applicant had imported goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies. There is nothing before the Tribunal to indicate that the applicant has been granted a permission under subregulation 4A(2) of those Regulations to import the goods. The Tribunal further finds that as a holder of the BVB, the applicant was a holder of a temporary visa.
The Tribunal reasonably believes that the applicant has imported goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies and has not been granted a permission under subregulation 4A(2) of those Regulations to import the goods. The Tribunal finds that the ground for cancellation set out in s. 116(1)(g) and reg 2.43(1)(t) is made out.
Consideration of discretion
Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), 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 policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
In his written submission to the Tribunal of 12 March 2025 the applicant states that he first travelled to Australia in May 2019 on a Student visa, completed his study and made an application for a substantive visa. The applicant states that he was granted a BVB in association with the application for a Skilled visa made in February 2025. That application has not yet been finally determined. The applicant appears to fulfil the purpose of his travel and stay in Australia.
The Tribunal refers to his outstanding application for the Skilled visa, his settlement in Australia and the presence of his de facto partner in this country. The Tribunal acknowledges that the totality of these factors may indicate that the applicant has a compelling need to remain in Australia.
The extent of compliance with visa conditions
There is no evidence of any non-compliance with visa conditions.
The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)
In his response to the NOICC the applicant stated that he has spent six years in Australia and does not want to ‘waste’ these. In his submission to the Tribunal the applicant states that he has significant personal and professional ties to the community and his application for the substantive visa demonstrates his intention to remain lawfully in Australia for employment purposes. The applicant states that the cancellation of his BVB would ‘sever’ his life in Australia would not only impose disproportionate hardship and also disrupt life in Australia without clear justification.
The applicant refers to his de facto relationship with Ms K is a holder of a Student visa and who, the applicant claims, relies on him financially and emotionally. The applicant states that they plan to marry in 2026 and Ms K cannot relocate due to her study commitments. The applicant told the Tribunal that he supports his partner emotionally and financially and they have been living together for about two years. The Tribunal accepts that if the applicant was to leave Australia, this may result in his separation from his partner and may cause hardship to both.
The applicant states that he has no job prospects in India and would face social isolations after being away from the country for many years. The Tribunal considers that submission problematic, noting that the applicant has not been granted a permanent (or even a substantive) visa in Australia and, at present, cannot expect to be able to remain in Australia.
The applicant refers to the hardship associated with detention and he refers to his medical condition as a result of detention and the stress of his circumstances. The applicant states he has experienced panic attacks, chest pains, weight loss. The applicant told the Tribunal that he has a number of stress related conditions. The applicant told the Tribunal that he made two applications for Bridging E visas which were determined to be invalid because he has not been immigration cleared. The Tribunal accepts that if the applicant is not granted another visa and is an unlawful non-citizen, he is likely to remain in detention (if not removed from Australia) and this would cause him hardship.
The applicant provided to the Tribunal several documents concerning his educational qualifications and his past employment, as well as evidence of his involvement in, and contribution to the community. The Tribunal accepts that the applicant has spent several years in Australia, that he has integrated into the community and that he intends to remain in Australia if granted a substantive visa. The Tribunal accepts that the cancellation of the BVB may disrupt the applicant’s life. The Tribunal also acknowledges the applicant’s evidence that his skilled visa application may be unsuccessful if PIC 4013 applies to him.
The applicant told the Tribunal that his subclass 482 application would be refused if his visa remains cancelled as he would be subject to PIC 4013. The Tribunal accepts that this may be so due to the operation of cl 482.217 and this would also cause hardship to the applicant.
The circumstances in which ground of cancellation arose.
30.The circumstances in which the ground for cancellation arise because the Tribunal believes the applicant has imported prohibited goods. The applicant told the Tribunal that the ABF officers conducted a random check, he is not sure why his phone was checked.
The applicant told the Tribunal that he did not know how the image came to be on his phone but he does admit having posted it to others. The applicant states that such pictures are normal in India and he did not think it would be a problem. The applicant states that such pictures are available on many websites and this image has been available since 2017. He did not think it would be illegal in Australia.
The past and present behaviour of the visa holder towards the Department
Nothing adverse is known about the applicant’s behaviour towards the Department.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140
32.There are no persons whose visas would, or may be consequentially cancelled.
Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal
If the applicant’s visa is cancelled and unless the applicant is granted another visa, he may be an unlawful non-citizen and may be subject to detention and removal from Australia. There is nothing to suggest the applicant would be detained indefinitely. His application for the substantive visa is a separate process but may be affected due the operation of PIC 4013.
The applicant’s evidence is that he has been advised he is unable to make a valid application for a Bridging E visa as he has not been immigration cleared. If that is the case, the applicant is likely to reman in detention, or be removed from Australia.
If the applicant’s visa is cancelled, he would be subject to the limitations for future visa applications imposed by s. 48 and he would be subject to an exclusion period in PIC 4013. The applicant submits that he would not be able to get the Skilled visa due to the operation of PIC 4013.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia’s non-refoulement obligations
The applicant told the Tribunal if he goes back to India, he would not be able to face his parents or the society because he has never done anything like that and ‘everyone would see him with bad eyes’. However, the applicant also told the Tribunal that the image in question would be considered normal and common in India and that he did not believe and did not think he had done anything wrong. The applicant told the Tribunal that adult content is normal in India (but not child exploitation) and images such as the one are readily available. The applicant evidence suggests that the image was not obviously seen as child pornography or exploitation (since he claims child exploitation is not acceptable in India and he believed the image in question to have been legal and not inappropriate) and in such circumstances, the Tribunal does not accept the applicant would be considered by others in India as having possessed or distributed child pornography or child exploitation material.
The applicant submits that people will know the circumstances why his visa is cancelled and he would be socially ostracised and might be harmed by some groups. The Tribunal does not accept that evidence as the applicant has not been charged with, or convicted of any offences and certainly has not been convicted in relation to any child pornography material.
The applicant states that he has been living in Australia for six years and involved in the Australian community and people will know that he has done something wrong if his visa is cancelled. However, the Tribunal is mindful that the applicant has never been granted an Australian permanent visa and does not hold a temporary visa and nobody can assume that the applicant would be entitled to remain in Australia. That is, the fact that the applicant returns to India should not be seen as an indication that the has committed a serious offence in Australia.
The Tribunal does not accept the applicant’s evidence that he would be subjected to harm or persecution upon return to India. The Tribunal is also mindful that the applicant is eligible to seek a protection visa if he does have a genuine fear of harm.
In the circumstances, the Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.
The applicant refers to his involvement with the community and his financial support for community members. The applicant states that he is looking after children of family members and neighbours and he also financially supports distant relatives with children. While the applicant presented a number of statements from community members (and the Tribunal accepts some of these have children), the evidence does not establish that the best interests of these children would be adversely affected by the cancellation of the visa. The Tribunal does not accept that to be the case.

The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.
Any other relevant matters.
The applicant provided to Tribunal evidence of his past study and employment. The Tribunal accepts the applicant had completed study and had been employed in Australia.
The applicant provided a number of character references and the Tribunal accepts that those who provided references believe the applicant to be of good character.
The applicant states hat he has been living in Australia for six years and has been law abiding and contributing to the community. He has made a ‘single lapse of judgment’ and should not punished so significantly for his action.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa as the Tribunal reasonably believes the applicant had imported prohibited goods and had not been given permission to do so.
However, the Tribunal has formed the view that there are strong grounds why the cancellation should be set aside. This is primarily because the Tribunal accepts that the cancellation of the visa may cause significant hardship to the applicant and potentially his partner. The cancellation of the visa would result in the applicant’s detention and, unless the applicant is granted another visa (which he may not be eligible for if he is not immigration cleared), he may be removed from Australia. Given the duration of the applicant’s stay in Australia, his links to this country and his de facto relationship, the Tribunal is of the view that significant hardship could be caused to the applicant and his partner by the cancellation of the visa.
Another significant consideration is that the cancellation of the BVB may affect the applicant’s eligibility for the Skilled visa due to operation of PIC4013. The Tribunal accepts that this would also amount of considerable hardship to the applicant in the circumstances where the applicant has completed his study in Australia and has made the application for the substantive visa in the hope of being able to remain in Australia.
The Tribunal also accepts that hardship would be caused due to the potential separation of the applicant and his partner, who resides in Australia on a Student visa and cannot accompany the applicant due to her study commitments.
All these factors weigh in favour of setting aside the cancellation. Many of the other factors referred to above are neutral.
The Tribunal is mindful that the applicant has not been charged with any offence, nor has he been convicted of any offence. Should the applicant be convicted of an offence in the future, another ground for cancellation may arise at that time.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.
Date(s) of hearing 13 March 2025
Representative for the Applicant: Mrs Geetanjali Sethi