Behari (Migration)

[2018] AATA 2888

Behari (Migration) [2018] AATA 2888 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dav Behari (aka Davendra Raj Kumar)

CASE NUMBER:  1807678

DIBP REFERENCE(S):  BCC2017/4590716

MEMBER:Kira Raif

DATE:12 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 12 July 2018 at 9:44am

CATCHWORDS

Migration – Cancellation – Incorrect information provided on Incoming Passenger Cards – Australian criminal history not disclosed – Previously subject to a Apprehended Violence Order – Community work in Australia – No family in New Zealand – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 32, 100, 111, 102, 107, 109, 140, 166
Migration Regulations 1994 (Cth), rr 2.41, 3.02

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The visa applicant is a national of New Zealand, born in June 1972. He was last granted the Special Category visa on 2 December 2017. On 3 January 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.109 of the Act. He provided a written response to the delegate and his visa was cancelled on 13 March 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 11 July 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

   Did the notice comply with the requirements in s.107?

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. In the Tribunal’s view, the NOICC contains sufficient particulars to enable the applicant to identify and address the issues, and the applicant’s response to the NOICC indicates that he understood the issues that arose. The Tribunal is also satisfied that the delegate had reached the necessary state of mind to engage s.107. The Tribunal finds that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice and, if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.102 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant travelled to Australia and completed the Incoming Passenger Cards (IPCs) on the following occasions:

    5 April 2012
    14 May 2012
    26 July 2012
    22 September 2012
    24 November 2012
    10 January 2013
    25 March 2013
    18 February 2014
    19 September 2016
    10 March 2017
    1 April 2017
    30 May 2017
    2 December 2017

11. On each occasion the applicant answered ‘no’ in response to the question ‘do you have any criminal convictions?’

12. The primary decision record indicates that the Department received information from the AFP which indicates that the applicant had been convicted of the following offences in Australia:

    18/04/16     shoplifting  infringement notice
    28/04/12     assault occasioning actual bodily harm                   fine $600;

    12 months bond

    28/04/12     excluded person re-enter/attempt to re-enter s.        10A conviction
    09/04/05     never licensed person drive vehicle on road             fine $750;

    12 months disqualification

    09/04/05     driver/rider state false name or address                   fine $200
    09/04/05     class A m/v drive > 130 kmh  fine $600
    09/04/06     class A m/v drive > 130 kmh and exceed limit          6 months disqualification

13. In his written submission to the delegate of 2 March 2018 the applicant confirmed he had also been convicted in December 2017 of ‘entering enclosed land not prescribed premises without lawful excuse’ and fined $1,000.

14. The Department also received information from the AFP that the applicant had been convicted of 41 offences in Australia between 1989 and 1995 in NSW and Victoria, including:

    Theft
    Burglary
    Handling stolen property
    Stealing
    Stealing from dwelling
    Stealing from person
    Malicious damage
    Receiving stolen property
    Demanding money with intent to steal
    Assault
    Malicious wounding
    Obtaining financial advantage by deception
    Escaping from YTC
    Burglary

15. In his written response to the NOICC the applicant states that he did not intentionally lie to the Border Control Service. The applicant states that he did not realise the speeding offences were criminal offences. He thought the s.10A conviction was not a recorded criminal conviction. The applicant states that he did not plead guilty but paid the fine for the shoplifting charge and had no understanding that it was recorded as a conviction. The applicant states that he did not intentionally lie on his immigration form but honestly answered that he had no current convictions. The applicant also states that the earlier convictions had been dealt with over 20 years ago and were not included due to statute of limitation.

16. The Tribunal finds the applicant’s submission unconvincing. Having had multiple and extensive dealings with the criminal justice system, the applicant should have no difficulty recognising that he had convictions, including for the speeding offences and shoplifting.

17. The applicant told the Tribunal that he was feeling ashamed about his past and wanted to ‘move on’. However, the obligation to disclose is not dependent on how the applicant felt about his convictions and his past conduct. The question on the IPC was very clear – whether or not the applicant had any convictions – and there was no basis to withhold that information simply because the applicant felt ashamed about his convictions. The applicant also told the Tribunal that he did not realise the severity of the repercussions. Again, the applicant’s obligations arise whether or not the applicant appreciated the consequences of his conduct.

18. The Tribunal is also mindful that in accordance with s.100 of the Act, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s.111 provides that s.109 applies whether the non-compliance was deliberate or inadvertent.

19. Having regard to the information in the primary decision record, the Tribunal finds that the applicant has several criminal convictions. The Tribunal finds that by stating ‘no’ in response to the question about his criminal convictions on the IPC, the applicant gave an answer that was incorrect. The Tribunal finds that there was non-compliance with s.102(b) by the applicant in the way described in the Notice. The Tribunal finds that there was non-compliance with s.102 by the applicant in the way described in the s.107 notice.

    Should the visa be cancelled?

20. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

21. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:

    The correct information

22. The correct information is that the applicant has several criminal convictions in Australia.

    The content of the genuine document (if any)

23. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

24. Section 166(1)(b) of the Act requires a non-citizen to provide information required by the Act or the Regulations and r.3.02(1)(b) of the Regulations provides that a passenger card for a person entering Australia must include a question about criminal convictions. To be granted the Special Category visa, the applicant must have shown that he is not a behaviour concern non-citizen, as required by s.32 of the Act. ‘Behaviour concern non-citizen’ is defined in s.5 of the Act and relevantly refers to a conviction or convictions for crimes resulting in imprisonment for a period of at least one year.

25. According to the primary decision record, the applicant had been convicted of a number of crimes that would be relevant to determining whether he is a behaviour concern non-citizen. These include two convictions in 1990 and 1991 which resulted in custodial sentences. Further, on 10 February 1997 the applicant was convicted for receiving stolen property and assault which resulted in a minimum term of 8 months imprisonment and an additional term of 12 months imprisonment (later reduced to 6 months).

26. The two earlier convictions appear to relate to conduct when the applicant was a minor. However, the 1997 conviction relates to a serious offence when the applicant was an adult and does not appear to be a ‘spent conviction’ given the length of the imposed sentence. That conviction would have been relevant in assessing whether the applicant was a behaviour concern non-citizen.

27. The Tribunal finds that the decision to grant the visa was based, wholly or partly, on information about the applicant’s convictions. It is not necessary for the Tribunal to decide whether the applicant would have been immigration cleared, had the correct information been disclosed.

    The circumstances in which the non-compliance occurred

28. In his submission to the delegate of 2 March 2018 the applicant outlined the circumstances of his offending. The Tribunal notes, however, that the issue here is not the applicant’s criminal conduct and convictions but his failure to disclose the convictions when completing the IPCs. That is, the non-compliance relates to the applicant’s completion of the IPC and not the criminal conduct.

29. The applicant’s evidence is that he did not intentionally provide incorrect information because he either did not believe his convictions counted as convictions or because they occurred too long ago. The Tribunal does not accept that explanation because there is nothing on the Incoming Passenger Card that would suggest to the applicant that old convictions need not be declared. The Tribunal is of the view that the applicant would have been well aware of what constituted a conviction and that he had criminal convictions.

30. The applicant told the Tribunal he did not think the older convictions had to be mentioned because he declared them in the past and was allowed to enter Australia. Later on, the process was taking a very long time each time he entered Australia, so he decided not to mention the convictions. That is, the applicant made a deliberate decision not to declare the convictions because it was more convenient and speedy. The Tribunal has formed the view that the failure to provide information about convictions was deliberate.

    The present circumstances of the visa holder

31. In his written response to the NOICC the applicant states that his elderly parents are dependent on him and that he is managing all aspects of their care as their next of kin. The applicant provided to the Tribunal evidence concerning his parents’ arrangements. The Tribunal accepts that evidence. The applicant told the Tribunal that his father has Parkinson’s and his parents are in a nursing home in Tweed Heads. The applicant states that his brother lives in Newcastle and cannot move to Tweed Heads while his parents cannot be moved to Newcastle, so his brother cannot care for them. The applicant provided to the Tribunal a written statement from the nursing home and the Tribunal accepts that the applicant’s parents are in a nursing home and that the applicant is identified as their carer. The Tribunal accepts that the applicant plays a role in caring for his parents. However, the applicant also told the Tribunal he spends a significant amount of time overseas and while he is overseas, it is the nursing home that cares for his parents. In the Tribunal’s view, if the level of care that is needed does not require the applicant’s ongoing and continuous presence near his parents, such care can be provided by the nursing home and the applicant’s brother or other family members.

32. The applicant states that he has two children in Australia and although he is separated from their mother, he is taking steps to see them and wants to be part of their lives. In his submission to the delegate of 2 March 2018 the applicant states that he last saw his children in 2012, visited them in 2014 but the police was called, and had not pursued legal proceedings to obtain access. The applicant told the Tribunal in oral evidence that he has two children in Australia but he has not seen them for six years. He had a Family Court case for two years but because he learned that his son was suicidal, he dropped the case and he intends to start the proceedings again. The applicant said his ex-wife took a number of AVOs against him and he agreed to these to give her peace of mind. The applicant said that he started contesting the AVOs but in the end, did not contest them. The last was issued about four years ago and is no longer in place. The applicant said he has had no contact whatsoever with the children for several years and has not had any contact with his ex-wife for six or seven years, so he cannot tell whether she would agree to him seeing the children.

33. The applicant states that he has been living in Australia from a young age and was educated here and has tried to give back to the community, including his involvement in voluntary activities. The applicant provided to the delegate a number of supporting statements, including evidence of the applicant’s community work, his participation in the Alcohol and Drugs Outreach program and a statement from his treating psychologist. The applicant subsequently provided to the Tribunal a statement from his brother outlining the family circumstances. The Tribunal has had regard to the information contained in these letters. The Tribunal accepts that the applicant has participated in such activities, has been actively involved in community programs and had sought psychological counselling for a number of years. The Tribunal accepts that the applicant has a close relationship with his family, his parents and brother. The Tribunal accepts that the applicant’s family would prefer for the applicant to remain in Australia.

34. The applicant states that he has no family in New Zealand. His elderly parents and his brother live in Australia. He has distant relatives in the US, Canada and Fiji. The Tribunal acknowledges that evidence, although the Tribunal also notes that the applicant is an independent adult and the Tribunal is of the view that the applicant will be able to re-establish himself in New Zealand, even if he has no family support there.

35. The applicant said that he works in Hong Kong acquiring art for a friend and working as an art curator. He spends a lot of time overseas. The Tribunal accepts that if the visa is cancelled, the applicant may not be able to, or may find it more difficult, to travel in and out of the country, although the Tribunal is mindful that the cancellation of the visa would not preclude the applicant from applying for the Special Category visa in the future and he would have been required to make such an application each time he re-entered Australia irrespective of the outcome of these proceedings.

36. The applicant told the Tribunal that he still has all the goods from the family home and the kids’ goods which he placed in storage and he may lose all these things if he is required to leave Australia. He has not been able to contact his ex-wife to take them and he has been keeping the things in storage. The Tribunal is mindful that the applicant’s relationship broke down many years ago. Whether or not the applicant decides to keep goods from his home in storage, this can be done irrespective of the applicant’s visa status and his presence in Australia.  

37. The applicant provided to the Tribunal a statement from his psychologist which indicates that the applicant had actively sought treatment for a number of years. The Tribunal accepts that evidence, although the Tribunal is also mindful that the more recent offences occurred after the applicant had commenced the treatment.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

38. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the above provisions.

    Any other instances of non-compliance by the visa holder known to the Minister

39. According to the primary decision record, the applicant made 13 entries to Australia between April 2012 and December 2017 and has not mentioned his criminal convictions on the Incoming Passenger Cards on any of these occasions. That would suggest 13 other instances of non-compliance with s.102 of the Act. The applicant expressed regret about his actions.

    The time that has elapsed since the non-compliance

40. According to the decision record, the applicant’s most recent entry to Australia, when he completed the IPC and failed to refer to his convictions, was in December 2017. Less than a year has passed since the most recent non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

41. The applicant told the Tribunal that since he last entered the country, he went to his girlfriend’s place to get his things. They had not spoken for a long time but he had the key. When he went to her place, she called the police and he was charged with trespass and fined $1,000. The applicant said that he did not contest the conviction because he had nowhere to stay in Sydney.

    Any contribution made by the holder to the community

42. The applicant referred to his employment at South Sydney Services facilitating art workshops with children, his voluntary work with Intragroup, involvement with various festivals and community work with Sydney City. The applicant provided to the Tribunal a number of statements concerning his activities and the Tribunal accepts that the applicant has contributed to the community.

1. Following the hearing, the applicant provided to the Tribunal a number of character references, as well as references from various community organisations. The Tribunal accepts that those who provided references believe the applicant to be a good person. The Tribunal also accepts that the applicant had actively engaged in community activities.  

2. The applicant told the Tribunal that he came to Australia when he was 10 years old and he has no family in New Zealand. He has family in other countries but not in New Zealand and he has not been back to New Zealand for a number of years. The applicant said he has been approached by a government agency for help and he agreed to help, which might mean that he would have to return to Fiji where he has some family. The applicant has not provided evidence relating to his stated agreement to work with a government agency.

3. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual, PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

4. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may be an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention, although he may be subject to an exclusion period in relation to some visa applications. There is no suggestion that the applicant will be indefinitely detained.

   Whether there would be consequential cancellations under s.140

5. There are no persons whose visas would be subject to consequential cancellations.

   Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child    

6. There is no evidence, and the applicant does not claim, that Australia has any protection obligations towards him. The applicant claims that he has nothing in New Zealand but the Tribunal does not consider this gives rise to Australia’s protection obligations.

7. The applicant has two children in Australia. In his written submission to the delegate of 2 March 2018 he states that his partner left with the children in June 2012 and he last saw his children in September 2014 when he went to the house of his father-in-law and the police was called and he was issued with an AVO. The applicant claims there has never been any violence and there was no truth to the claim that he had been violent. The applicant indicates he was the subject of an AVO which expired in 2014 and when he visited his father-in-law’s place, the police was called. The applicant states that there is nothing preventing him from seeing his children as the AVO has finished. The applicant states that he has commenced court proceedings in January 2015 to be able to see his children but when he realised that the process was causing his son to be suicidal, he decided to drop the case.

8. The applicant gave the same evidence in his oral evidence to the Tribunal. He told the Tribunal that he wants to be part of his children’s lives but he has not seen the children for several years and does not have any court proceedings in relation to the children. However, the applicant’s evidence suggests that he has had very little, if any, involvement with his children for over five years. He does not appear to have any parental responsibilities or any role in the children’s upbringing. The applicant’s evidence also indicates that his former partner had an AVO issued to protect her from the applicant and while the applicant claims there was no violence, he also states that he did not contest the AVO which was issued following a court hearing.

9. The Tribunal notes that the applicant has an extensive criminal history spanning many years. The most recent conviction occurred in December 2017 and there were convictions in the preceding years. The earlier convictions, which are set out in the primary decision record, involve violent offences including convictions for assault. The Tribunal acknowledges the applicant’s evidence that the more serious of these offences occurred many years ago and that he has since reformed and participated in a number of programs but the Tribunal is mindful that despite that, the applicant continued to reoffend as recently as seven months ago.

10. The Tribunal accepts that the applicant has children in Australia. However, given the applicant’s extensive criminal conduct, which includes violence, the fact that he has been issued with the AVO in the past to protect the mother of the children, all suggest that it may not be in the best interests of the children to be with their father. The Tribunal is also mindful that the applicant has played no role in the children’s affairs since 2012. The applicant’s evidence is that he did not pursue the Family Court proceedings because he believed the issue was causing his son to be suicidal. Considering all the circumstances, the Tribunal has formed the view that the best interests of the children do not require the children to be with their father or to have close contact with their father. The Tribunal finds that the best interests of the children would not be adversely affected as a result of the visa cancellation.

11. The applicant’s brother also states in his statement that his children are attached to the applicant and would be affected if the visa is cancelled. No evidence is presented of the applicant’s involvement with his brother’s children. There is no evidence of such attachment or of any activities they may have undertaken together. There is no evidence of regular contact between the applicant and these children. While the Tribunal is prepared to accept that the children do have a relationship with their uncle, the Tribunal is not satisfied that their interests would be adversely affected by the cancellation of the visa.

    Any other relevant matters

12. The applicant has spent the majority of his life in Australia. He travelled to Australia as a child and his immediate family is in Australia, with no family support in New Zealand. The Tribunal accepts, as noted above, that considerable hardship would be caused to the applicant if his visa is cancelled and if he is required to leave Australia.

13. However, the Tribunal is also mindful that the applicant would be required to reapply for a visa each time he travels overseas. The visa would not remain valid once the applicant leaves Australia. The applicant has travelled extensively, according to the information in the primary decision record, and his evidence to the Tribunal is that his work requires him to travel to Hong Kong. Thus, the present visa may, in a practical sense, be available for only a brief period until the applicant’s next departure from Australia. The applicant suggested to the Tribunal that he may remain in Australia and not travel but that contradicts his evidence that he needs to travel to Hong Kong for work and that he intends to travel to Fiji at the request of an Australian government agency.

14. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s.102 of the Act. The Tribunal accepts that the applicant has been living in Australia since he was a young child and that he considers Australia his home. The Tribunal accepts that the applicant’s family is in Australia and he has no family in New Zealand. The Tribunal also acknowledges that the applicant wants to continue to care for his parents in Australia and that he wants to re-establish a relationship with his children. The Tribunal accepts that considerable hardship would be caused to the applicant if his visa is cancelled.

15. The Tribunal accepts that the applicant has contributed to the community through various community activities. The Tribunal accepts he supports his elderly parents. The Tribunal accepts the applicant would have nothing to return to if he was to leave the country. The Tribunal accepts there are strong reasons why his visa should not be cancelled.

16. Against these considerations, the Tribunal considers the breach to be serious. The applicant failed to mention multiple convictions and these were central to the assessment as to whether the applicant was a behaviour concern non-citizen and to the grant of the Special Category visa. The Tribunal also places weight on the fact that the applicant has persistently failed to comply with s.102 of the Act. His evidence to the Tribunal, which is consistent with the information in the primary decision record, is that he has not declared his convictions on the IPCs since 2012, partly because he decided it was inconvenient for him to do that. The Tribunal has also formed the view that the applicant has a broader disregard for the Australian law. The applicant claimed that many of the offences occurred many years ago and he had not re-offended for a long time and while that is the case, the primary decision record refers to several offences from 2006 until as recently as December 2017. The Tribunal places significant weight on the applicant’s multiple breaches of the law.

17. The Tribunal acknowledges that the applicant has strong family ties in Australia and provides care to his parents. The Tribunal accepts that the family would prefer for the applicant to remain in Australia. However, the Tribunal also notes that the applicant’s visa would only be valid until his next departure from Australia and the applicant would be required to seek a new visa each time he travels. He will be able to do so in the future.

18. The Tribunal has formed the view that the best interests of the children do not require the applicant’s presence in Australia, given the nature of the applicant’s relationship with the children’s mother and the applicant’s lack of involvement in the children’s lives for a number of years. Australia’s protection obligations would not be breached as a result of the cancellation.

19. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

    DECISION

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kira Raif
    Senior Member