Anand (Migration)

[2024] AATA 2217

Anand (Migration) [2024] AATA 2217 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kanav Anand

REPRESENTATIVE:  Mr Dushan Nikolic

CASE NUMBER:  2403664

HOME AFFAIRS REFERENCE(S):          BCC2023/5976947

MEMBER:Mary Sheargold

DATE:11 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 11 June 2024 at 3:53pm

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – applicant convicted of several offences – no imprisonment – employment terminated – visa cancelled on the last day of validity – financial hardship – spouse’s pending permanent visa application – employment in aged care – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 2024 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that Mr Anand had been convicted of offences against laws of the State of South Australia. 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 appeared before the Tribunal on 7 June 2024 via MS Teams link from Adelaide to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Sukhraj Kaur, who is both the primary visa holder and the applicant's wife.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing via separate MS Teams link from Melbourne.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

   Section 116(1)(g) - prescribed ground

7. 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. That prescribed ground provides that the Minister may cancel a visa if the visa holder has been convicted of an offence against a law of the Commonwealth or of a State or Territory.

8. In Mr Anand’s case, his prior convictions are not contested.  He has 5 separate convictions recorded in the Magistrates Court of South Australia for driving under the influence of alcohol, driving with excess blood alcohol, driving under disqualification or suspension (2), and a basic offence of ‘due care’ that arose when the applicant parked his vehicle illegally at a corner after driving under the influence.  The 5 convictions relate to 4 separate incidents that occurred in 2018, 2019, 2022, and 2023.

9. None of Mr Anand’s convictions has resulted in imprisonment, though he was given a 7-day suspended sentence in relation to his first conviction for driving while disqualified.  He has served a 6-week home detention order and has paid fines and bonds totalling $5,000. $2,000 of that sum relates to a charge of committing aggravated assault without a weapon, for which no conviction was recorded in satisfaction of a plea bargain reached by Mr Anand’s solicitor.

10. Mr Anand admitted to all of these convictions and charges during the hearing, and he was able to recall the details surrounding each one.  He had an accurate recollection of the timing of each of the convictions.  Mr Anand did not attempt to justify his actions and accepts the convictions were fair.

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

    Consideration of discretion

12. 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’.

13. At the hearing, Mr Anand explained his reasons for believing his visa should not be cancelled.  He noted that the biggest cost to him as a result of his convictions is not having his visa cancelled, but rather the serious impact his lifestyle has had on his marriage.  Mr Anand explained that although he has worked hard for many year in Australia, due to his poor choices, a lot of the money he has earned has ended up being spent on legal fees.  He also noted that he has struggled to maintain secure employment since his visa was cancelled because employers do not look favourably on holders of a Bridging Visa E.

14. Mr Anand told the Tribunal that he never really had the need or interest in drinking alcohol when he lived in India as he was very busy running businesses and supporting his family.  He stated that when he first arrived in Australia, he began to join some work colleagues for drinks after work.  There was one particular person with whom he spent a lot of time and who drank heavily.  He explained that the two would meet regularly at his house and drink substantial amounts of wine. 

15. However, his drink driving charges did not occur as a result of those binge drinking episodes.  Rather, on each occasion, he had consumed a relatively low quantity of wine compared with what he may ordinarily drink when he was in a heavy drinking session with his friend.  Mr Anand told the Tribunal that police had not confirmed his blood alcohol readings with blood tests, but relied on breathalyser readings.  Mr Anand stated he could not recall the reading either time he was charged with and convicted of drink driving.  Mr Anand also claimed that there were no other occasions on which he had driven a motor vehicle after consuming alcohol, and that he had been very unlucky the twice he had been caught.

16. The Tribunal notes the representative’s concerns regarding the motive of the delegate taking steps to cancel this visa on the final day of its validity.  The Tribunal does not need to make findings regarding the reasonableness or otherwise of cancelling a visa when it is due to expire; it was an action open to the delegate at the time the decision was made.  However, the Tribunal is cognisant of the relative futility of cancelling a visa with less than 24 hours of validity remaining.

17. Mr Anand has told the Tribunal that he almost completely abstains from alcohol now, and that he may have only half a glass of beer if he attends a major celebration.  The Tribunal accepts his evidence that he has changed his ways considerably since his most recent convictions.  There is no evidence before the Tribunal to suggest that Mr Anand has engaged in any further offences since his last court appearance in 2023.  He now uses public transport to travel, and he understands that his drivers licence will remain suspended for another 2 years, until 7 June 2026.

18. The Tribunal acknowledges the humility Mr Anand displayed throughout the hearing.  At no time did he attempt to justify or explain his past behaviour; rather, he admitted that what he had done was inappropriate, regrettable, and foolish.  Mr Anand noted that he had never been sentenced to any jail time for any of his offending.  He realises that he has a problem with alcohol, and has relied on the support of his doctor and his wife to give up his binge drinking habits.

    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

19. Mr Anand came to Australia to support his wife as she pursued her dream to study and work in a foreign country.  The couple came to Australia because Mr Anand had family connections in Melbourne.  The Tribunal is satisfied that Mr Anand has fulfilled the purpose as the secondary holder of a Graduate visa.  The Tribunal gives this consideration a little weight against cancelling the visa.

    The extent of compliance with visa conditions

20. Mr Anand and Mrs Kaur told the Tribunal that they have fully complied with all conditions attached to this visa as well as the student visa and bridging visas they have held in the past.  There is no evidence before the Tribunal to suggest that Mr Anand has not complied with any conditions imposed on his visas.  Therefore, the Tribunal gives this consideration a little weight against cancelling the visa.

    Degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)

21. The Tribunal accepts Mr Anand’s and Mrs Kaur’s evidence that they will suffer serious emotional hardship if Mr Anand’s visa is cancelled.  The Tribunal notes that the couple have suffered financial hardship as a result of the decision to cancel this visa because the applicant now holds a Bridging Visa E, which he believes is hindering his ability to secure stable employment.  He is not able to work regularly and this is having an impact on their financial situation.

22. Further, Mr Anand has been living in Australia for nearly 6 years and he has only returned to India once during that time.  The Tribunal is satisfied that he has developed significant ties to Australia during that time, including an increased bond with his brother’s family who live in Melbourne.

23. Mr Anand and Mrs Kaur are currently awaiting the outcome of their application for a Skilled – Independent permanent residency visa.  It is unclear how long that application may take to process.  Mr Anand has given evidence of the hardship he has faced trying to secure stable employment as a BVE holder; there is no reason to assume that this situation will improve while the couple waits for the outcome of their next visa application.

24. The Tribunal is satisfied that Mr Anand and Mrs Kaur both face real hardship – financial, psychological and emotional – if Mr Anand’s visa status is not regularised and his Bridging Visa A not reinstated.  The Tribunal gives this consideration a little weight against cancelling the visa.

    The circumstances under which the ground for cancellation arose

25. There is no doubt that the circumstances giving rise to Mr Anand’s criminal offending were entirely his own doing and he has accepted the blame for the situation he finds himself in today.  It is particularly concerning that Mr Anand incurred further convictions for drink driving within 15 months of his original conviction, and that, based on his own recollection of events, this was a more significant occurrence than the first.  Mr Anand claims he believes he parked his car in the driveway at home when in fact he left it next to the corner of the road, obstructing the view of any passing or oncoming drivers.

26. The Tribunal is not satisfied that the offences committed by Mr Anand occurred due to circumstances beyond his control, and acknowledges that Mr Anand did not try to argue that they were.  The nature of his actions was entirely reckless and jeopardised not only his safety but the safety of all road users.  Although Mr Anand is now better supported and his risk of re-offending does appear lower, the Tribunal must still give this factor significant weight in favour of cancelling the visa.

    Mr Anand’s past and present behaviour towards the Department

27. At the hearing, Mr Anand refuted that he had deliberately misled the Department when declaring that he had no charges or convictions at the time this visa application was made.  He accepts it was an oversight, and notes that it has been declared at all other relevant times, and that he has provided the Department with his police check outlining his conviction.

28. There is no other information before the Tribunal to demonstrate that Mr Anand has behaved in anything less than a frank and forthright manner towards the Department to date.  The Tribunal therefore gives this consideration a little weight against cancelling the visa.

    Consequential cancellations

29. Mr Anand is the secondary visa holder in this case.  The circumstances do not give rise to any consequential visa cancellations under s 140 of the Act.  The Tribunal is not able to give this consideration any weight for or against a decision to cancel the visa.

    Legal consequences of a decision to cancel the visa

30. Cancelling Mr Anand’s visa resulted in the automatic cessation of his Bridging Visa A held in relation to Mrs Kaur’s Skilled – Independent visa application.  This occurred because the cancellation of this visa was only of minimal consequence, as it naturally ceased the day following the cancellation decision. 

31. He has since attained a Bridging Visa E, and the Tribunal is satisfied that it is likely that a Bridging Visa E will continue to remain in force pending the outcome of the Skilled – Independent visa application.  Mr Anand may be liable to be detained or removed from Australia if he does not maintain his BVE continuously.  The Tribunal has noted its concerns that Mr Anand’s capacity to attain stable employment has been compromised since the cancellation of his visa, though this is not strictly a legal consequence of holding a BVE.

32. The cancellation of this visa does result in application of section 48 of the Act, meaning he would be limited in terms of other visa applications he could lodge validly while remaining in Australia.

33. Noting the impact cancellation has already had on Mr Anand, and understanding the implications of holding a BVE in the medium to long term, the Tribunal gives this consideration some weight against cancelling the visa.

    Australia’s international obligations

34. Mr Anand has never applied for protection nor has he indicated to the Tribunal that he fears harm if he is returned to India.  The Tribunal has considered the obligation in relation to non-refoulement under the Refugees Convention and the Refugees Protocol, as well as the Convention Against Torture and the International Covenant on Civil and Political Rights and is satisfied that removing Mr Anand from Australia will not leave Australia in breach of any of its obligations under those instruments.

35. At the hearing, the couple confirmed they have no children.  Mr Anand does have a niece and nephew who live in Melbourne, but they communicate with Mr Anand mostly via video calls, which the Tribunal accepts could be undertaken anywhere.  There is no information before the Tribunal to suggest that cancelling Mr Anand’s visa would result in Australia breaching its obligations under the Convention on the Rights of the Child.

36. The Tribunal notes that although none of Australia’s international obligations would be enlivened by an attempt to return Mr Anand to India, it does not consider it necessary to give this consideration weight in favour of cancelling his visa.

    Any other relevant matters

37. Mr Anand has submitted that he loves his work in the aged care sector and hopes to return to that on a full-time basis as soon as possible.  The Tribunal is well aware of the serious shortage of personal care workers available to meet the needs of Australian citizens and permanent residents who live in residential care.  The Tribunal is satisfied that the loss of even one worker from this sector at this time would cause hardship for the organisations providing residential care in South Australia, a designated regional area in Australia.  The Tribunal acknowledges Mr Anand’s long term and extensive work history in this sector, and so gives this matter some weight against cancelling the visa.

38. Mr Anand has also provided evidence that he engages in charitable work with his local Sikh temple, and they help to provide food to underprivileged members of society.  Although this work is only engaged in around once per month, it is nonetheless a real and valuable contribution, and the Tribunal gives this matter a little weight against cancelling the visa.

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

    DECISION

40. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

    Mary Sheargold
    Member