Bagri (Migration)

[2022] AATA 1992

Bagri (Migration) [2022] AATA 1992 (26 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harsukhpal Singh Bagri

REPRESENTATIVE:  Mr Pankaj Dumra (MARN: 0959608)

CASE NUMBER:  2018340

HOME AFFAIRS REFERENCE(S):          BCC2019/1010230

MEMBER:Joseph Lindsay

DATE:26 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 April 2022 at 11:55am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8104 – applicant worked for more than 40 hours per fortnight – has a genuine desire to support his wife and their family unit – applicant has a compelling need to remain in Australia at this time – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 December 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant breached condition 8104 of his visa, being that he worked for more than 40 hours per fortnight. 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 19 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse, Rawinder Kaur Braich. 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.

4. 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

5. 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)(b). 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?

6. A visa may be cancelled under s 116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8104 was attached to the applicant’s visa. This condition requires the visa holder not to engage in work for more than 40 hours a fortnight. In his response to the Department, as well as in his submissions to the Tribunal, the applicant admitted that he worked in excess of 40 hours a fortnight.

7. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) 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

8. 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 circumstances in which the ground for cancellation arose

9. In the hearing, the Tribunal discussed the applicant’s circumstances. The applicant in this case is not the primary visa holder. He is the secondary visa holder. The applicant’s wife is the primary visa holder. The applicant accompanied his wife to Australia. He claimed he inadvertently worked more than the permissible number of hours, and that he had no intention of doing so. He claimed he was simply trying to support his wife and he worked driving a taxi to enable him to earn money to support his wife. The applicant provided a significant amount of evidence showing that he and his wife have suffered significantly in respect to the Department’s decision to cancel his visa. The applicant suffered a lot of stress and anxiety. He had a fall and injured himself, in part due to the distractions caused as a result of the stress and anxiety. The applicant and his wife gave evidence that their daughter is in India being cared for by family members, and that there has been some stress caused by this issue. This stress has been exacerbated by Covid-related travel restrictions. The Tribunal also received evidence that the applicant’s wife has applied for a subclass 485 visa. The Tribunal received evidence that the applicant’s wife is on the path to gain Australian work experience in hospitality industry, and she is currently working as a Chef.

10. In respect of the above, the Tribunal makes the following findings.

11. The Tribunal accepts that the applicant has given truthful evidence to the Tribunal about his circumstances. The Tribunal accepts that the applicant has found himself in unfortunate circumstances. The Tribunal is satisfied that the applicant has not engaged in disingenuous conduct, and that he has a genuine desire to support his wife and their family unit.

12. The Tribunal accepts that the applicant inadvertently worked more than the permissible number of hours, and that he had no intention of doing so. The Tribunal accepts that the applicant the applicant was simply trying to support his wife and he worked driving a taxi to enable him to earn money to support his wife. The Tribunal accepts that the applicant and his wife have suffered significantly in respect to the Department’s decision to cancel his visa. The Tribunal accepts that the the applicant suffered a lot of stress and anxiety, and that he had a fall and injured himself, in part due to the distractions caused as a result of the stress and anxiety.

13. The Tribunal accepts that the the applicant’s daughter is in India being cared for by family members, and that there has been some stress caused by this issue, and that this stress has been exacerbated by Covid-related travel restrictions. The Tribunal accepts that the applicant’s wife has applied for a subclass 485 visa, and that she is currently working as a Chef.

14. Accordingly, the Tribunal places high weight on this information in the applicant’s favour.

    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

15. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to support his wife in her studies, but the Tribunal is satisfied that the applicant has a compelling need to remain in Australia at this time. Accordingly, the Tribunal gives some weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

16. The Tribunal accepts that the applicant appears to have complied with his other visa conditions. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

17. As indicated above, the Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. For the reasons above, the Tribunal accepts that there will be hardship caused to the applicant, and his family, if his visa was cancelled and gives this matter high weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

18. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

19. As the applicant is himself the dependant on his wife’s student visa, a cancellation of his visa would not have any consequential effects. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

20. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

21. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

22. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

23. The Tribunal places some weight on this information 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

24. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.

    Any other relevant matters

25. In respect to whether there were any other relevant matters he wished to discuss, the applicant indicated that there were no other matters he wished to discuss.

    Conclusion

26. In balancing the circumstances above, the Tribunal concludes that the applicant’s visa should not be cancelled.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay

    
    

    Member