2313050 (Migration)

[2024] AATA 821

2313050 (Migration) [2024] AATA 821 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jyoti N Bharati

CASE NUMBER:  2313050

MEMBER:Kira Raif

DATE:13 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2024 at 12:51pm

CATCHWORDS
MIGRATION – Cancellation – Bridging C (Class WC) visa – Subclass 030 – applicant had been convicted of offences – cancellation of the BVC will not result in the applicant having to depart Australia – Australian partner – intends to make an application for a Partner visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

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 24 August 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa (BVC) under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of India, born in [year]. He was granted a BVC on 10 October 2019. In June 2023 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there were grounds for cancelling the applicant’s visa under s 116(1)(g) of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 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 affirmed.

   Relevant law

4. 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.

5. A visa may be cancelled under s 116(1)(g) if the Minister or the Tribunal is satisfied 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 Migration Regulations 1994 (Cth) (the Regulations). Regulation 2.43(1)(oa) provides the following:

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant previously held a Student visa which was cancelled under s 116(1)(b) in September 2016. In October 2019 the applicant made an application for a substantive visa and was granted a BVC in association with that application.

7. It is stated that the Department received information that in April 2023 the applicant had been convicted of the following offences:

03/04/23	·     Possess prohibited drug ·     Knowingly take part supply >= common quantity – cannabis ·     Possess unauthorised pistol	Aggregate term of imprisonment 33 months, 20 days to be served by way of intensive corrections in the community
17/04/23	Common assault	Fine $600

1. In his response to the NOICC the applicant appears to concede that grounds for cancellation exist. In oral evidence the applicant also agreed that there are grounds for cancelling the visa.

2. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a BVC other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s 116(1)(g) and reg 2.43(1)(oa).

   Consideration of discretion

3. 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

4. In his submission to the delegate the applicant states that he travelled to Australia to complete a Diploma course but he had not done that as he was unable to understand the course content. He did not get any advice about changing the course and ultimately his visa was cancelled. The applicant claims that his mental health was not good at the time and he failed to contact the Department. He claims he was depressed and sick and had no money to pay a migration agent. He made an application for a substantive visa which was deemed invalid (due to his failure to attend the biometric appointment) and he relodged the application.

5. In his written submission to the Tribunal the applicant outlined his immigration history and the history of his criminal offending. He states that he travelled to Australia in 2014 to undertake a Diploma course but he did not complete the course due to a lack of English and poor mental health. His visa was cancelled and he lodged an application for another visa.

6. The applicant states that his application was refused and he presently has a case before the present Tribunal. The applicant states that his claims are genuine and he has a good prospect of success. The BVC was granted to enable the applicant to await the outcome of that review. The Tribunal is satisfied that the applicant is fulfilling the purpose of his stay in Australia.

7. The applicant refers to his long-term relationship with an Australian citizen. The applicant also claims that he has a genuine fear of returning to India. In oral evidence, the applicant also refers to having an Australian partner. He states that they have a ‘beautiful life’ together, plan to get married and start a family and his partner is financially dependent on him. The applicant states that the cancellation of his visa will affect his partner if he has to leave Australia. The applicant also states that he financially supports his family overseas as his parents are elderly.

8. The Tribunal accepts that the presence of the Australian partner may indicate a compelling need for the applicant to remain in Australia. However, the Tribunal does not accept that the cancellation of the BVC will necessarily affect the applicant or his partner. Contrary to the applicant’s assertion, he will not have to depart Australia as a result of his BVC being cancelled. The applicant will be able to remain in Australia while his application for the substantive visa is being processed, whether or not he holds a BVC. The applicant also informed the Tribunal that he intends to make an application for a Partner visa shortly. That is, the cancellation of the BVC will not result in the applicant having to depart Australia.

   The extent of compliance with visa conditions

9. In his submission to the Tribunal the applicant claims that he has always complied with visa conditions and had never breached the work requirements. He had cooperated with the police and the Department and gave his contact details. He has no criminal record prior to his convictions and has followed the directions of the Intensive Correction Order (ICO).

10. However, the primary decision record indicates that in September 2016 the applicant’s Student visa was cancelled as the applicant was not enrolled in any course. His enrolment was cancelled in 2015 for non-payment of fees. In his submission to the Tribunal the applicant also refers to the cancellation of his Student visa, stating that he did not undertake the course due to a lack of English and poor mental state (which does not necessarily explain his failure to maintain enrolment).

11. In oral evidence the applicant states that he had no knowledge and did not get any help. He could not explain why he did not undertake an English course to improve his English, stating there was nobody to guide him. He refers to his poor mental state and could not explain why he did not return to India if he was not able to engage in studies as a holder of a Student visa. The Tribunal finds the applicant’s evidence unpersuasive. The Tribunal does not accept that as a holder of a Student visa, the applicant did not recognise that he was required to engage in study or seek another, more appropriate visa. The applicant repeatedly stated that he had ‘no clue’ and did not know how to ask for help but he also said that he did not seek advice from a migration agent. The applicant appears to have done nothing to ensure his compliance with the visa conditions.

12. The Tribunal does not accept the applicant’s claim that he had complied with the visa conditions. The Tribunal finds that the applicant did not comply with the conditions of his previously held visa but there is no evidence of any non-compliance in relation to the conditions of his BVC.

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

13. In his submission to the delegate the applicant refers to the length of his stay in Australia and the ties he has established in this country. The Tribunal accepts that the applicant has been living in Australia for a number of years, although the Tribunal is mindful that the applicant has never held a permanent visa and, for most of his stay in Australia, he did not hold a temporary visa. The primary decision record suggests that the applicant held a Student visa until September 2016 and since that time he held bridging visas or no visas, living in Australia as an unlawful non-citizen. In the Tribunal’s view, it is not appropriate to rely on the length of the applicant’s residence in this country when such residence was while the applicant was either an unlawful non-citizen or holding a series of bridging visas.

14. The applicant refers to his de facto relationship with an Australian citizen of aboriginal descent and states that they plan to marry. The applicant refers to the hardship his partner would experience if his visa is cancelled. The applicant provided to the Tribunal a statement from his partner and some evidence of their relationship. In oral evidence, the applicant also referred to his relationship, stating that they take care of the household together and plan to get married and if his visa is cancelled, it would affect his partner. The applicant also refers to his parents’ reliance on him.

15. As noted above, the Tribunal does not accept that evidence because the cancellation of the BVC does not equate to the applicant having to depart Australia while his application for the substantive visa is under review. The applicant is eligible to make an application for another bridging visa to await the outcome of that application, although the Tribunal acknowledges that if the applicant is not granted another bridging visa or a substantive visa, he may be detained as an unlawful non-citizen. The Tribunal acknowledges that if the applicant is detained, it may cause him and others substantial hardship.

16. The applicant refers to his employment and states that his parents and partner rely on him financially. The Tribunal is prepared to accept that evidence, although the Tribunal also notes that the applicant would not have been allowed to work since his visa was cancelled and during the periods of past stay as an unlawful non-citizen (his evidence is that he is now supported by a friend) the applicant has not provided evidence of how his parents had been adversely affected as a result.

17. The applicant states that his parents are elderly and are dependent on him. The applicant states that if he loses his visa, his parents would be depressed. It is not clear to the Tribunal why that would be the case, since the cancellation of the BVC does not equate to the applicant having to be removed from Australia and will not necessarily result in the applicant being detained (noting that no steps had been taken to detain the applicant since his visa was cancelled some six months ago). The Tribunal does not consider that the applicant’s elderly parents overseas would be cognisant of different Australian visas and become depressed due to the applicant not holding a particular type of visa.

18. However, the Tribunal accepts that if the applicant does not retain his BVC, he will have no permission to work, which might affect his capacity to support his parents financially. As noted elsewhere, the applicant is eligible to make an application for a Bridging E visa with permission to work and in his post-hearing submission of 12 February the applicant confirmed that he had made the application for the BVE.

19. The Tribunal also accepts that if the applicant is not granted another visa, or does not apply for one, he will continue to be an unlawful non-citizen and liable to be detained. While no steps had been taken to detain the applicant since the cancellation of the visa, the Tribunal acknowledges that there is a possibility that the applicant will be detained as an unlawful non-citizen. The Tribunal accepts that detention may cause significant hardship to the applicant.

20. Significantly, the applicant told the Tribunal that he is in the process of collecting documents in support of a Partner visa application and he plans to make that application within a month. The Tribunal is mindful that this application will also enable the applicant to remain in Australia and seek a bridging visa with work rights. 

    Circumstances in which ground of cancellation arose

21. The ground for cancellation arises because the applicant held a temporary visa and had been convicted of offences set out above.  

22. In his submission to the delegate the applicant states that in February 2021 the police searched his vehicle and located cardboard boxes containing sealed packages, holding 120 kg of cannabis. The applicant was placed under arrest and charged with several offences and was later convicted for possession of a prohibited drug. He was later convicted of common assault. The applicant provided to the Tribunal copies of the Court Attendance Notice, the police statement of facts and a copy of the ICO.

23. In his submission to the delegate the applicant refers to his poor mental health due to COVID-19 and the financial responsibility for supporting his families in Australia and overseas.  The applicant submits that due to his poor mental state, he turned to drugs. The applicant claims in his submission to the Tribunal that he had always complied with the conditions of his ICO and is aware of the repercussions of the breach. He states that he has not committed any other crimes in Australia.

24. In oral evidence to the Tribunal the applicant also referred to financial hardship as a result of COVID-19 and he took the opportunity of driving a truck, not knowing what was inside and thinking it was illegal tobacco (suggesting the applicant was aware he was engaging in illegal activity).

25. In relation to the possession of a pistol, the applicant states that it was a plastic toy that his partner bought for him in Queensland and these are legal in Queensland, so he did not realise these toys were not legal in NSW. In relation to the assault, the applicant referred to the ‘touching’ of someone at the gym and he states that he was charged with assault because he touched the person without his consent. The applicant states that he has been in Australia since 2014 and prior to the above offences, he had never done anything wrong, had complied with his bail conditions and curfew.

    Past and present behaviour of the visa holder towards the Department

26. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

27. There are no persons who would be affected by consequential cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

28. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. As noted above, the applicant has an outstanding application for a substantive visa that is presently before the Tribunal. That process is independent and would permit the applicant to remain in Australia until the review is determined. Nevertheless the Tribunal acknowledges that if the applicant is not granted another visa, he may be detained as an unlawful non-citizen. The cancellation of the visa will also result in the application of s 48, limiting the applicant’s options of applying for another visa onshore. (The Tribunal is mindful that s 48 already applies to the applicant due to the refusal of his substantive visa application and not only due to the cancellation of the BVC.)

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

29. There are no children who would be affected by the cancellation of the visa.

30. There are no protection findings in relation to the applicant at present. The applicant submits that he cannot return to India and he has outlined reasons why he believes he would be subjected to harm if he were to return to India.

31. As noted above, the applicant has made an application for another visa in which these claims would be assessed. If it is determined that the applicant is owed protection, the applicant would not be removed to his home country.

32. The cancellation of the BVC will not result in the applicant having to leave Australia while his application for the substantive visa is under review. The Tribunal finds that Australia’s non-refoulement obligations will not be breached as a result of the applicant’s visa being cancelled.

33. As for the principles of family unity, the Tribunal acknowledges that the applicant claims to be in a relationship with an Australian partner but the cancellation of the BVC will not affect that relationship, nor necessarily lead to the applicant being separated from his partner. Indeed, the applicant has the option of seeking a Partner visa in the future and he told the Tribunal that he intends to make the application for the Partner visa shortly.

34. The Tribunal finds that Australia’s international obligations will not be breached by the cancellation of the applicant’s BVC.

    Any other relevant matters

35. The applicant provided to the delegate and the Tribunal a statement from his partner and some evidence of his relationship. As noted above, the cancellation of the BVC will not affect that relationship and the applicant is eligible to seek a Partner visa in the future on the basis of that relationship. He has expressed his intention to do so.

1. The applicant provided to the Tribunal a number of character references and evidence of his employment. He told the Tribunal that he has improved himself and wants to have a second chance. The Tribunal is mindful, as stated throughout these reasons, there may be practically little difference to the applicant others around him in the longer term if his BVC is cancelled, particularly if he seeks another visa to enable him to remain in Australia lawfully.

2. The applicant states that he deserves a second chance and wants to stay in Australia forever. The Tribunal is mindful that the applicant does not have a visa to enable him to do that. In his submission of 12 February 2024 the applicant also states that  he is remorseful about his conduct and wants the opportunity to remain in Australia lawfully, having now applied for another Bridging visa. The Tribunal acknowledges that submission.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had been convicted of offences and held a temporary visa and that there are grounds for cancelling the visa.

4. The Tribunal accepts that there may be significant hardship to the applicant if he is detained as an unlawful non-citizen if his visa is not reinstated, noting however, that no steps had been taken to detain the applicant since his visa was cancelled more than six months ago. The Tribunal also accepts that the applicant has no permission to work unless he is granted another visa with work rights and that would affect his capacity to support his partner and family overseas. That is, the Tribunal accepts that there may be some hardship as a result of the visa being cancelled. However, the Tribunal does not accept that there will be other hardship to which the applicant refers, such as separation from his partner and the need to leave Australia. The Tribunal places significant weight on the applicant’s evidence that he intends to make an application for a Partner visa shortly and the Tribunal notes that such an application will give the applicant the right to remain in Australia with his partner (and he already has the right to remain in Australia while his other application for the substantive visa is under consideration) and to seek a bridging visa with permission to work. These matters weigh against the cancellation.

5. The Tribunal notes that the applicant had previously failed to comply with the conditions of his Student visa. The Tribunal does not consider that the applicant is fulfilling the purpose of his initial travel to Australia (to study) but he is fulfilling the purpose of the BVC grant as he awaits the outcome of his visa application. The Tribunal is prepared to acknowledge that the presence of his partner in Australia (no assessment of their relationship has been undertaken by this Tribunal) may constitute a compelling need for the applicant to remain in Australia, noting, however, that the cancellation of the visa will not result in the applicant having to depart Australia. The Tribunal is of the view that this consideration is neutral.

6. The Tribunal places significant weight on the circumstances in which the grounds for cancellation arose. The applicant’s own evidence is that he was aware he was engaging in illegal activity, believing he was transporting illegal tobacco rather than drugs. He claims he was under financial hardship but the Tribunal does not consider that financial hardship needs to result in engagement in illegal activities. In the Tribunal’s view, the circumstances in which the ground for cancellation arose weigh heavily in favour of the cancellation.

7. The Tribunal accepts the applicant’s evidence that there had been no other misconduct and no other engagement in criminal conduct. The Tribunal acknowledges the applicant’s evidence that he wants to have a second chance and to remain in Australia. As noted above, the Tribunal places considerable weight on the fact that he is able to do that, irrespective of the outcome of this review.

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

   DECISION

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

   Kira Raif
   Senior Member