2106834 (Migration)

[2021] AATA 4945

2106834 (Migration) [2021] AATA 4945 (9 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2106834

MEMBER:John Cipolla

DATE:9 September 2021        

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 9 September 2021 at 5:30pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – ground for cancellation – convicted of offences – consideration of discretion – repeated and sustained criminal history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116

Migration Regulations 1994 (Cth), r 2.43; Schedule 4, Public Interest Criterion 4013

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 21 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground to cancel the applicant’s visa existed under r. 2.43(oa) of the Migration Regulations 1994 (the Regulations) as the applicant had been convicted of and charged with a range of criminal offences in the state of New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in the proceedings before the Tribunal and the applicant directed that the authorised recipient for the receipt of documents pertaining to the review should be his representative, [Mr A].

4. The Tribunal initially set the matter down for a review hearing on 10 August 2021 and a hearing invitation advising of the time and date of hearing was forwarded to the authorised recipient. On the day of the scheduled hearing neither the applicant nor the representative was contactable.

5. On the day of the scheduled hearing the Tribunal directed a Registry Officer to undertake further enquiries pertaining to the applicant’s whereabouts as the applicant had been incarcerated until bail was granted to him in April 2021. As a result of these enquiries the Tribunal was informed that the applicant, who had been living in the community after bail had been granted in April 2021, was now incarcerated again as his bail had been revoked.

6. In these circumstances the Tribunal decided that an attempt should be made to ascertain the applicant’s whereabouts within the NSW prison system and to re-schedule the hearing to enable the applicant to participate. The Tribunal was advised that the applicant was incarcerated in [a named facility] and the Tribunal liaised with staff of that facility to ensure that the hearing was able to proceed on the re-scheduled hearing date.

7. The hearing was re-scheduled to 2 September 2021 via audio conferencing facilities. The applicant’s representative did not attend the review hearing.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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). 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?

10. 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(oa) is relevant.

11. The evidence before the Tribunal which was discussed with the applicant at the review hearing is that the applicant has been convicted of a number of criminal offences within the state of New South Wales.

12. Those offences and the subsequent convictions are summarised below.

    PARRAMATTA LOCAL COURT [date]/12/2020 Possess prohibited drug FINE : $350

    FAIRFIELD LOCAL COURT [date]/08/2020 Owner not disclose identity of driver/ passenger FINE : $500 COMPENSATION : $1796.50

    LIVERPOOL LOCAL COURT [date]/02/2020 Use vehicle on road or road related area m/v tax not paid FINE : $200

    LIVERPOOL LOCAL COURT [date]/02/2020 Permit uninsured motor vehicle to be used FINE : $1,000

    LIVERPOOL LOCAL COURT [date]/02/2020 Dishonestly obtain financial advantage etc by deception-T1 FINE : $500 COMPENSATION : $50 LIVERPOOL LOCAL COURT [date]/02/2020 Cause or permit use of unregistered vehicle on road FINE : $1,000

    LIVERPOOL LOCAL COURT [date]/02/2020 Dishonestly obtain property by deception-T1 FINE : $1,000 COMPENSATION : $536

    HORNSBY LOCAL COURT [date]/08/2019 Dishonestly obtain property by deception-T1 FINE : $500 COMPENSATION : $1017.44

    HORNSBY LOCAL COURT [date]/08/2019 Permit use heavy veh contravene vehicle defect notice -major FINE : $500

    HORNSBY LOCAL COURT [date]/08/2019 Custody of knife in public place - first offence FINE : $100

    HORNSBY LOCAL COURT [date]/08/2019 Fail to notify Authority of change of residential address FINE : $100

    HORNSBY LOCAL COURT [date]/08/2019 Dishonestly obtain property by deception-T1 FINE : $1,000 COMPENSATION : $6002.33

    WAVERLY LOCAL COURT [date]/01/2014 Driver, severe risk breach load restraint req - 1st off FINE: $300

13. In addition to these convictions the applicant advised at the review hearing that he has outstanding criminal charges for possession of a stolen motor vehicle and the applicant advised that the outstanding charges are due to be dealt with in the Downing Centre in Sydney and at Bankstown Local Court. The applicant advised that he intends pleading not guilty to these charges. The applicant also advised that he had engaged a representative for these criminal proceedings.

14. The Tribunal had no further evidence pertaining to the additional charges before it.

15. The applicant advised that his bail was revoked because he failed to comply with reporting conditions attached to his bail. The applicant stated that he failed to report to police as per his bail conditions because he had been unwell and had undertaken a test for COVID-19. 

16. On the basis of the evidence before it the Tribunal is satisfied that the ground for cancellation in s.116(g) exists under r. 2.43(oa). 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

17. 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’.

18. The Tribunal discussed with the applicant his immigration history in Australia. The applicant advised that he arrived in Australia in 2009 as the holder of a Student visa and had held Student visas for approximately 4 to 5 years. The applicant advised that during this time he completed courses in [Discipline 1], [Discipline 2], and [Discipline 3].

19. The Tribunal noted that the applicant had a Subclass 457 visa refused in 2013. The applicant confirmed that this visa was refused.  The applicant stated that he did not pursue merits review. The Tribunal noted that in October 2013, the applicant had a refugee protection application refused by the Department, a decision that he did take to merits review with the then, Refugee Review Tribunal, who found that the applicant was not a refugee. The applicant confirmed this. The Tribunal noted that in October 2014 the applicant was refused a Partner visa and that this decision was affirmed by the AAT at merits review. The applicant confirmed that his Partner visa was refused and further advised that the Federal Court review of the AAT decision was unsuccessful.

20. The applicant advised that he needed to remain in Australia for a number of reasons. Firstly, he had a sister who is an Australian citizen and that he provided support to his sister and her children. Secondly, the applicant could not return to India because of COVID-19. The applicant also advised that his wife, who is not an Australian permanent resident or citizen is currently two months pregnant.

21. The Tribunal discussed with the applicant the hardship that he would experience if his visa was cancelled. The applicant stated that he provided support to his sister and her two children. The applicant also stated that he could not return to India because of COVID-19.

22. The applicant claimed that the convictions for the obtain benefit by deception offences related to a business for which he was a Director. The applicant claimed that the offences were perpetrated by employees of the business, that the business had employed to work as [Occupation 1] who had used fraudulent credit cards at [locations]. The applicant claims that the drug possession offence related to him travelling in a motor vehicle with a friend who had a prohibited drug in his cigarette packet. The applicant claimed that the possession of knife conviction related to a knife that he carried as part of his employment and was an employment related tool.

23. The Tribunal discussed with the applicant the fact that he had previously lodged a refugee application with the Department which had been refused. The Tribunal further noted that the applicant had sought merits review of that decision with the then Refugee Review Tribunal affirming the Departmental decision. The Tribunal noted that this evidence indicated that the applicant was not owed protection obligations by Australia and that Australia would not be in breach of international obligations if the applicant was required to return to India, the applicant acknowledged this.

24. The applicant was asked at the review hearing whether there were any other additional considerations that he wanted the Tribunal to consider as to why his visa should not be cancelled. The applicant advised that there were no further reasons other than those he had provided.

25. The Tribunal has considered the evidence before it and the relevant discretionary factors to determine whether or not the applicant’s visa should be cancelled.

26. The evidence before the Tribunal indicates that the purpose for the applicant coming to Australia from India was to study, and the applicant advised that in the 4–5 year period he held successive Student visas, he completed a number of courses. It is apparent from the applicant’s immigration history that after the cessation of his student visas the applicant attempted to find a pathway to permanent residence. The multiple attempts to secure permanent residence failed. The evidence indicates that the applicant firstly pursued a Subclass 457 visa, however the application was refused. As a consequence of this refusal, the applicant would have been precluded from applying for a further visa onshore, except for a Protection visa or a Partner visa. The applicant applied for a Protection visa which was refused by the Department, with the Department finding the applicant was not owed protection obligations. The applicant sought merits review with the then, Refugee Review Tribunal, and the primary decision was affirmed. The applicant then applied for a Partner visa which was also refused at primary stage and at merits review before the AAT and an application to the Federal Court was dismissed. 

27. The applicant in what appears to be an effort to remain in the Australian jurisdiction has submitted an application for a Medical Treatment visa which is yet to be finalised by the Department. The applicant was granted a Bridging C visa whilst awaiting the finalisation of his Medical Treatment visa application and it is this Bridging visa that is the subject of the current cancellation proceedings.

28. The evidence indicates that the applicant has operated a business in Australia and the applicant claims that most of the above listed convictions pertain to former employees of his business, such as the offences for dangerous truck loads and obtain property by deception. The Tribunal finds that the applicant’s evidence pertaining to the offences was vague and evasive. The applicant claims former employees of the business used cards to pay for goods in [locations] that did not work. The applicant claims that these employees had run away and were unable to be located. The applicant claims that the knife he was found carrying was a work tool he kept in his car.

29. The Tribunal finds that the applicant has an adverse history with the criminal justice system in NSW that dates back to 2014, with most offences occurring over 2019 and 2020. There are additional charges that the applicant is facing for motor vehicle theft.

30. The evidence indicates that as a consequence of his criminal history, the applicant, when he was charged with additional outstanding offences, was initially refused bail and that he was held in remand for 4 months. The applicant was then granted bail in April 2021, but his bail was revoked 2 months ago when the applicant failed to comply with reporting conditions attached to his bail. The applicant claims he was sick and had undertaken a COVID test and was not able to report. The Tribunal finds that if the applicant had a legitimate reason for not reporting, able to be quantified by medical evidence, that his bail revocation would have been able to be re-considered. There is no evidence that this was the case.

31. As discussed with the applicant, he is facing further criminal charges. The Tribunal finds that the applicant has a repeated and sustained criminal history in NSW and the Tribunal finds that significant weight should be apportioned to this consideration in favour of cancelling the applicant’s visa.

32. In terms of the hardship that the cancellation of his Bridging C visa would cause the applicant advised that he provides support to his Australian citizen sister and her two children. The applicant advised that his sister is married. There was no further evidence apart from the applicant’s evidence pertaining to any care or support arrangements. The applicant’s sister did not provide any evidence to the Tribunal at review pertaining to the support she derives from her brother. The Tribunal in the absence of corroborative evidence does not apportion significant weight to this consideration in favour of not cancelling the applicant’s visa.

33. The applicant has claimed that his wife who is not a permanent resident of Australia or an Australian citizen and is an Indian national is 2 months pregnant. There is no reason why the applicant and his wife cannot return to India to reside when travel re-opens to non-citizens in the future. The applicant claimed that COVID-19 was an additional factor as to why he could not return to India.  The Tribunal finds that the whole world has been afflicted by COVID-19 and that the applicant will not be able to return to India until the resumption of international travel. The Tribunal does not apportion any weight to these considerations in favour of not cancelling the applicant’s Bridging C visa.

34. There is no evidence before the Tribunal that indicates that Australia would be in breach of its international obligations, including non-refoulement, if the applicant’s visa was cancelled. As discussed with the applicant at the review hearing the applicant made an application for a Protection visa which was refused by the Department and that decision was affirmed at merits review before the then, Refugee Review Tribunal. It is clear, that the applicant, is not owed protection obligations by Australia. The applicant conceded that this was the case.

35. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s.48 of the Act.  The applicant will also be subject to Public Interest Criterion (PIC) 4013. The Tribunal considers potential detention, removal from Australia, the impacts of s.48 and the PIC 4013 bar, to be intended legislative consequences. The Tribunal gives this aspect neutral weight.

36. The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal takes the opportunity to express its concerns about the repeated pattern of offending by the applicant.

37. The Tribunal is satisfied that the balance of the evidence weighs in favour of cancellation. The Tribunal finds that those considerations favourable to cancellation outweigh those in favour of cancellation.

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    John Cipolla
    Senior Member