Bashir (Migration)

[2021] AATA 823

Bashir (Migration) [2021] AATA 823 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Asad Bashir

CASE NUMBER:  2016074

HOME AFFAIRS REFERENCE(S):          BCC2020/2315546

MEMBER:R. Skaros

DATE:18 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 18 March 2021 at 10:11am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – criminal conviction and community correction order – discretion to cancel to visa – visa and study history – application for review of refusal of further student visa – study difficulty, homesickness, illnesses and death of family members – ceased higher-level study and enrolment in lower-level courses cancelled – re-enrolment and successful completion of one course – support for girlfriend facing abuse from ex-husband – punched girlfriend’s ex-husband to protect her and himself – guilty plea and remorse – adverse information given no weight – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 375A, 359A
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 October 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) 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 for cancelling the visa applies to the applicant, being that he was convicted of an offence against the law of the State of New South Wales.

3. The applicant provided a copy of the delegate’s decision record to the Tribunal.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Non-disclosure certificate – s.375A

5. The Tribunal has before it a copy of the Department’s file which includes a certificate and notification regarding the non-disclosure of certain information under s.375A of the Act. The reasons given for the non-disclosure of the specified information are that disclosure of the information, being an internal report prepared by a departmental officer, would be contrary to the public interest because its release may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods. The certificate also covers anonymous allegations about the applicant and provides that disclosure of the allegations may disclose or enable a person to ascertain the existence or identify of a confidential source of information.

6. Prior to the hearing, the Tribunal wrote to the applicant and invited him to comment on the validity of the certificate. The applicant was also invited, pursuant to s.359A of the Act, to comment on or respond to information which, subject to his comments or response, would be part of the reason for affirming the decision under review. The applicant did not provide a substantive response regarding the validity issue however, he did respond to the adverse information set out in the s.359A letter.

7. The Tribunal is satisfied that the certificate on its face provides a valid public interest reason for the non-disclosure of the information that is subject to the certificate. To the extent that the information is relevant to the issues in this review, the Tribunal notes that the information was either known to the applicant, as set out in the notice of intention to consider cancellation and the decision record, or has been particularised for the benefit of the applicant in accordance with the procedure in s.359A of the Act. The adverse information and the applicant’s responses are discussed further below.

8. The applicant appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s girlfriend, Ms Jotishma Devi. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

9. 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

10. 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).

11. 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?

12. 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 Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It provides that for the purpose of s.116(1)(g), in the case of a temporary visa holder, 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)).

13. In this case, the applicant was granted a Bridging A (Subclass 010) visa on the basis of a further application for a student visa which he lodged on 12 September 2019 whilst onshore. That application was refused by the Department on 11 November 2019 and the applicant applied to the Tribunal for review of that decision. The student visa refusal matter is still pending before the Tribunal and has not been finally determined.

14. On 31 August 2020 the applicant was convicted in Mt Druitt Local Court of the following offence: Assault occasioning actual bodily harm for which he received a 9-months community correction order, from 31 August 2020 to 30 May 2021.

15. The Tribunal has received written statements and oral evidence from the applicant and Ms Devi regarding the circumstances of the offence to which it has had regard further below. However, for the purposes of whether the ground of cancellation exists, the evidence before the Tribunal, which the applicant does not dispute, is that he has been convicted of an offence against a law in the State of New South Wales.

16. For these reasons, 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

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 has considered the purpose of the applicant’s travel to Australia and whether he has a compelling need to remain in Australia. The evidence before the Tribunal indicates that the applicant was initially granted a Student visa on 12 July 2017 to undertake a Master of International Business at the University of New South Wales. He travelled to Australia on 20 July 2017 and commenced this course, however he ceased study in this course on 1 December 2017. The applicant then enrolled in the Diploma of Leadership and Management and Advanced Diploma of Leadership and Management, however, his enrolment in these courses was cancelled in November 2018.

19. Whilst onshore, on 12 September 2019, the applicant applied for a further student visa, however that application was refused as the delegate was not satisfied that the applicant was a genuine temporary entrant. The applicant applied for review of that decision which remains pending.

20. At the hearing, the Tribunal discussed with the applicant the evidence before it regarding his travel to and study in Australia. The Tribunal expressed its concerns that the applicant had not maintained enrolment in the master degree course, being the course for which he was granted the initial student visa, and that he had not completed any courses of study whilst on that student visa. The Tribunal expressed to the applicant its concern that he does not appear to have fulfilled purpose for which his student visa was granted and that the Tribunal may not be satisfied that there is a compelling need for him to remain in Australia.

21. The applicant did not dispute the evidence regarding his immigration and study history but sought to provide an explanation for why he had not been able to complete the courses in which he had enrolled. He gave evidence that shortly after arriving in Australia he found out that his mother was very sick and that his grandmother was also sick. He stated that he was also feeling quite homesick and found it difficult to concentrate on his studies. He also found the University course much more difficult than anticipated and did not attend classes. Following the cancellation of his enrolment by the University, he enrolled with a college in Campbelltown where he studied for two semesters. He stated that during this time his grandmother passed away and he had to return to Pakistan to be with his family. Following his return to Australia he continued his studies and after three months he found out that his mother had a heart attack and had to return to Pakistan for about 6 weeks to be with her.

22. The applicant stated that after returning to Australia he continued with his studies and then he met Ms Devi on social media in 2018. He stated that they maintained contact via social medial for about two to three months during which he came know about her family problems and that she was being abused by her husband who has gambling and alcohol abuse issues. The applicant stated that he became involved in Ms Devi’s problems and wanted to help her. He gave evidence that he tried to assist her to leave the family home, but she was frightened as she did not have a job, was not eligible for any assistance as she was a New Zealand permanent resident and did not want to leave her three children. He stated that on a few occasions he had to take Ms Devi to a refuge centre to get assistance following her husband’s angry outbursts and abuse. The applicant then went on to detail a number of incidents between Ms Devi and her ex-husband in which he claimed he had to get involved to defend Ms Devi, with one of these incidents resulting in the laying of assault charges by NSW Police on the applicant and Ms Devi’s ex-husband. The Tribunal has considered the circumstances of that incident in detail below. The applicant stated that he has assisted Ms Devi to leave the family home and get her own accommodation and to find employment and support herself.

23. In response to the Tribunal’s concerns that he had not fulfilled the purpose of his student visa, that is to complete a masters qualification, and that his desire to remain in Australia to assist Ms Devi may not be consistent with the purpose of the visa he is currently pursuing, being a further student visa, the applicant insistent that he wanted to complete further studies in Australia but at a diploma level which he stated would assist him when he returns to his home country.

24. The applicant informed the Tribunal that he recently completed a Diploma of Business course at the Institute of Advancing Careers and that he is enrolled in the Advanced Diploma of Banking Services and Management which is due to commence in April 2021. The Tribunal has received evidence from the applicant regarding his recent studies, being a Certificate of Completion and a Completion letter from the Institute of Advancing careers indicating that he completed the Diploma of Business course on 25 February 2021 after 12 months study. The Tribunal also received a copy of a Confirmation of Enrolment (CoE) confirming the applicant’s enrolment in the Advanced Diploma of Banking Services and Management at Western Sydney College.

25. While the Tribunal has concerns about the applicant’s study history, which the Tribunal does not consider to be consistent with the purpose for which he was granted the student visa, the Tribunal acknowledges that the applicant has struggled to study at the masters level. The applicant has provided evidence that he has completed a diploma course. While he appears to have enrolled in that course after his application for the student visa was refused, he has nevertheless demonstrated that he can successfully study in Australia and achieve a qualification.

26. When asked why he could not return to his home country now that he has completed a diploma qualification, the applicant stated that it would greatly assist him on his return to Pakistan if he could complete the advanced diploma course. He hopes to be granted a further student visa so that he can complete his studies in Australia.

27. Whether the applicant will be successful in securing a further student visa is not within the knowledge of the present Tribunal as that application will be the subject of a separate review that is yet to be determined. However, the Tribunal is satisfied on the totality of the evidence before it that the reasons for the applicant’s stay in Australia at this time, being to pursue the review relating to his student visa refusal and to complete his studies in the advanced diploma course, and to provides support for Mr Devi, in combination provide compelling reasons for the applicant to remain in Australia. The Tribunal gives weight to these circumstances in favour of not cancelling the visa.

28. In relation to the allegations received by the Department that the applicant is pursuing a relationship with Ms Devi so that he can secure a permanent visa to remain in Australia, the Tribunal notes that this allegation is without basis as Ms Devi informed the Tribunal that she is not a citizen or permanent resident of Australia and that she holds a temporary visa, Subclass 461 which was granted to her on the basis that she is a family member of a New Zealand citizen living in Australia. Given Ms Devi’s status, she would not be eligible to sponsor the applicant for an Australian partner visa. For these reasons, the Tribunal gives no weight to the allegation that the purpose of the applicant’s stay in Australia is to pursue permanent residence on the basis of his relationship with Ms Devi.

29. The Tribunal has next considered the extent of the applicant’s compliance with visa conditions, including those imposed on his last held substantive visa and subsequent bridging visas. The evidence before the Tribunal, which the applicant does not dispute, indicates that the applicant ceased to be enrolled in a full-time course of study whilst holding the student visa. The evidence also indicates that the applicant ceased studies at the level for which he was granted the student visa and enrolled in a course which was at a lower Australian Qualification Framework (AQF) level. On this evidence, it appears that the applicant has breached conditions 8202(a) and (b) to which his student visa was subject. When this was discussed with the applicant at the hearing, he acknowledged that he ceased his enrolment in the Master of International Studies course and stated that he had struggled with the content as it was at a much higher level than he expected and that the difficulties were further exacerbated with him being homesick. Notwithstanding the reasons given by the applicant, the Tribunal considers that he has breached enrolment conditions imposed on his student visa and gives weight to this circumstance in favour of cancelling the visa.

30. In relation to the allegations received by the Department that the applicant has been working full-time in a factory and that he also works as an Uber delivery driver on weekends, which the Tribunal put to the applicant under s.359A, the applicant denied that he had ever worked in breach of any work conditions imposed on any of his visas, including the student visa and subsequent bridging visas. The applicant stated that he does not and has never worked for a factory. He gave evidence that he has only ever worked as an Uber driver and that he used to work between 3 to 4 hours each day. He stated that his Uber account has been suspended due to his conviction and that it would not be restored until after 31 May 2021 when the community service order is completed. When asked how he was supporting himself, the applicant stated that he was being financially supported by his brother who has now been re-employed following a period of unemployment due to the COVID-19 situation.

31. Ms Devi gave evidence that she knows for certain that the allegations about the applicant were made by her ex-husband because her ex-husband had told her that this is what he was going to do to the applicant and she thought the accusations would be much worse. In considering this evidence, the Tribunal notes that the document containing the allegations did not indicate the identity of the sender. It is plausible that the allegations came from Ms Devi’s ex-husband. In any case, the Tribunal considers that there is no credible evidence before it to substantiate the allegations regarding the applicant’s work history. In the circumstances, the Tribunal gives these allegations no weight in its considerations.

32. The Tribunal has next considered the degree of hardship that may be caused if the visa is cancelled. At the hearing, the applicant gave evidence that he had been granted a Bridging E visa following the cancellation of his Bridging A visa. He noted the restrictions placed on his Bridging E visa but acknowledged that he could request the Department to change those conditions, including to permit him to work and study. The applicant indicated that he was not sure what hardship may be experienced if his Bridging A visa was cancelled, to which the Tribunal explained that it could affect his eligibility to return to Australia on a temporary visa for a period of three years.

33. While the Tribunal acknowledges that a Bridging A visa is more favourable than a Bridging E visa, the Tribunal notes that if the applicant’s Bridging A visa is cancelled he would still be eligible to remain in Australia to pursue the review of the student visa refusal. The Tribunal is not satisfied that any immediate hardship would ensue from the cancellation of the applicant’s Bridging A visa.

34. In relation to the circumstances in which ground of cancellation arose, the Tribunal has before it a departmental report regarding the incident in question, a bail report for the applicant and statements from the applicant and Ms Devi regarding the events that led to the applicant being charged and convicted of assault.

35. By way of background, the evidence before the Tribunal indicates that the applicant has been in a relationship with Ms Devi for the last two years. They do not live together, however, Ms Devi lives in her own accommodation which is not far from the applicant. Ms Devi has been separated from her ex-husband with whom she has had 3 children for over 2 years. Ms Devi claims to have been the victim of physical and psychological abuse at the hands of her ex-husband (Deepak). The applicant and Ms Devi claim that Deepak is angry about their relationship and that he has been stalking, harassing and verbally abusing Ms Devi.

36. On 31 August 2020, the day on which the applicant was charged with assault, Deepak came to Ms Devi’s home to confront her about her relationship with the applicant. The applicant and Ms Devi gave evidence that Deepak was hitting Ms Devi when she called the applicant to ask for his assistance. The applicant gave evidence that he went to Ms Devi’s home and called the police so they could attend. The applicant stated that when he arrived at Ms Devi’s home, he was confronted by Deepak who appeared intoxicated and attempted to run him over. He stated that Deepak then started assaulting him and that he, in self-defence, punched Deepak back causing him to fall and sustain bruising. The applicant claimed that the police valued Deepak’s injuries more than his own and decided to charge him with assault over the incident. The applicant stated that he is not a violent person and does not support any form of violence, especially against women. He stated that his actions towards Deepak was out of self-defence and not something he would normally do. The Tribunal noted that despite claiming to have punched Deepak in self-defence, he pleaded guilty to the charges. In response, the applicant stated that he pleaded guilty because he was confused. He remarked that he had punched Deepak and thought he should plead guilty.

1. The Tribunal has also had regard to the bail report in which the following was recorded: that the applicant has no criminal history, that the offence involved a minor degree of violence that is of an (extended) domestic nature, that the applicant had also presented with injuries himself as a result of the altercation and that the applicant has no history of violence. Departmental documents suggest that the applicant and Deepak were both charged as a result of the altercation as the police were unable to determine which of them was the perpetrator.

2. While the Tribunal accepts the applicant and Ms Devi’s evidence about the altercation and the circumstances which led to the applicant being charged and convicted of assault, the Tribunal does not consider that it was beyond the applicant’s control to have refrained from punching Ms Devi’s ex-husband. While this factor weighs in favour of cancelling the visa, the Tribunal also acknowledges that the applicant was remorseful for his conduct and pled guilty to the charges. Information on the bail report also suggests that the applicant is not a violent person, that the charges were the result of a one-off incident during which the applicant lost his composure and acted out of character. These factors weigh against cancellation of the visa.

3. In relation to the applicant’s past and present behaviour towards the Department, the Tribunal notes that there is nothing adverse known about the applicant’s behaviour in that regard.

4. The cancellation of the applicant’s visa would not result in consequential cancellation under s.140 of the Act.

5. The Tribunal has also considered the mandatory legal consequences of cancellation. The Tribunal notes that the cancellation of the applicant’s Bridging A visa would not result in him being unlawful as he currently holds a Bridging E visa and would be eligible to continue to hold this type of visa on the basis of his pending application for review of the student visa refusal. As noted above, if the applicant’s Bridging A visa is cancelled, he may be subject to a three-year exclusion period.

6. When asked if there was any reason why he could not return to his home country of Pakistan, the applicant stated that there was no reason for him not to return but that currently Pakistan was struggling with the impacts of COVID-19. He also stated that he would like to complete his studies before returning.

7. The Tribunal has also had regard to Ms Devi’s evidence that the applicant has greatly supported her over the last two years and that he has assisted her in rebuilding her life after she decided to leave her abusive husband. When asked about her children, Ms Devi gave evidence that they were being looked after by their paternal grandparents. She stated that she hopes to study and get a good job so that she can get the children back and look after them.

8. The Tribunal acknowledges that the applicant’s presence in Australia would be of benefit to Ms Devi, the Tribunal notes however that the cancellation of the applicant’s Bridging A visa, would not result in the applicant having to depart Australia. For this reason, the Tribunal gives limited weight to Ms Devi’s circumstances in the exercise of its discretion.

   Conclusion

9. In considering all of the relevant circumstances, the Tribunal formed the view that the factors in favour of not cancelling the visa outweigh those in favour of cancelling the visa. 

10. While the applicant appears to have breached his student visa conditions and has not maintained enrolment in a university level course, the Tribunal considers that these issues will be the subject of greater scrutiny by the member considering the review of his student visa refusal.

11. Of significance to the present Tribunal is that the incident which triggered the cancellation under s.116 of the applicant’s Bridging A visa was, according to the bail report, of a minor nature and was in the context of a domestic dispute during which the applicant was attempting to protect his girlfriend from her ex-husband. In the context of these circumstances, the Tribunal gives weight to the fact that the applicant does not have a criminal history or any history of violence and that the conviction arose out of a one-off incident for which the applicant is remorseful.

12. Having carefully considered the evidence before it, the Tribunal concludes that the Bridging A visa should not be cancelled.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    R. Skaros
    Senior Member