Bhutta (Migration)

[2023] AATA 3526

Bhutta (Migration) [2023] AATA 3526 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Usama Bhutta

CASE NUMBER:  2311248

HOME AFFAIRS REFERENCE(S):          BCC2023/1879272

MEMBER:Kira Raif

DATE:17 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

Statement made on 17 October 2023 at 3:58pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VF) visa – Subclass 476 (Skilled – Recognised Graduate) – criminal convictions and fine – careless driving causing bodily harm – discretion to cancel visa – parents’ reliance for financial support, with poor health and flood damage to house – recent application for another class visa – driving not reckless or deliberate – minor injuries to passengers – guilty plea – failure to declare conviction on incoming passenger card – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 102, 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 28 July 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Pakistan, born in June 1995. He was granted a Skilled visa in February 2020. In March 2023 the applicant was convicted of an offence. In July 2023 he was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling his visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled.

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

4. The applicant appeared before the Tribunal on 17 October 2023 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 set aside.

   Relevant law

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(g).

6. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. It states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (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:  

   (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))

7. 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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled Recognised Graduate Class VF visa in February 2020 and he first entered Australia on 13 May 2022. The visa was due to be in effect until 14 April 2024.

9. It is recorded that on 16 March 2023 the applicant was convicted, at Perth Magistrates Court, of three offences of careless driving causing death, grievous bodily harm or bodily harm. He was fined $8000 for the offences. The applicant confirmed that in his oral evidence to the Tribunal.

10. The Tribunal finds that the applicant was a holder of a Subclass 476 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s 116(1)(g) and reg 2.43(1)(oa).

11. The Tribunal is satisfied that the ground for cancellation in s116(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’.

    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

13. In his response to the NOICC the applicant states that he travelled to Australia to further his career and to build a better future and to settle in Australia. He provided in his submission to the delegate evidence of his employment in Australia. The applicant told the Tribunal that he has been working in IT support but initially he did other work as it was hard to find a job. The applicant states that he has an established skill set and has jobs available to him. The applicant told the Tribunal that he had travelled overseas as he has a nomination for another visa but if his visa is reinstated, he would return to Australia and would work in the same field.

14. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia by engaging in skilled employment. There is nothing to suggest the applicant has a compelling need to remain in Australia.

    The extent of compliance with visa conditions

15. There is no evidence of any non-compliance with visa conditions.

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

16. The applicant refers to his parents’ poor health (he provided medical reports in his submission to the NOICC) and states that his parents depend on him financially. He states that he has been working hard to provide them with better medical treatment, which would be impossible if his visa is cancelled. The Tribunal is prepared to accept that the applicant provides financial support to his parents and that they are reliant on the applicant to meet their medical treatment needs. There is limited evidence before the Tribunal as to what income (including from employment) may be available to the applicant in his home country and whether it might be sufficient to meet his parents’ needs. He told the Tribunal that he has applied for jobs in Pakistan but has not been able to find a job.

17. In oral evidence the applicant also told the Tribunal that his parents are dependent on him and he refers to the house being damaged due to the flood. The applicant states that due to poor health, his parents cannot work and he needs to support them financially.

18. The applicant claims that he planned to establish his future life in Australia and further his career. The Tribunal notes that the applicant held only a temporary visa which was due to expire in early 2024 but the Tribunal acknowledges the applicant’s evidence is that his intention is to apply for a further Australian visa.

19. The applicant stated in his response to the NOICC that the area in his home town was previously affected by flood, causing financial hardship. The Tribunal does not consider that  this natural occurrence would be in any way dependent upon, or associated with the applicant’s visa but the Tribunal accepts that this may have contributed to the family’s financial burden.

20. The applicant told the Tribunal that he has no job opportunities in Pakistan and he has not  been able to get a job. He has job offers in Australia but cannot work without a visa.

21. The Tribunal is prepared to accept that the applicant is financially supporting his parents and that he might no longer be able to do that if he cannot remain in Australia as a result of his visa being cancelled. The Tribunal accepts that some hardship would be caused to the applicant and his family by the cancellation of his visa.

    Circumstances in which ground of cancellation arose.

22. The ground for cancellation arises because the applicant held a temporary visa and was convicted of an offence.

23. In his response  to the NOICC the applicant states that he was driving a car as an Uber driver at night time, was unable to judge the speed of another vehicle and his car collided with the other vehicle when he was making a right turn. Two passengers sustained minor injuries and one had a dislocated collar bone. The applicant states that he attended the police station and explained the incident and took responsibility for what happened and pleaded guilty.

24. In oral evidence to the Tribunal the applicant also said that he did not see the oncoming car and was involved in an accident. One passenger had a dislocated collar bone and the other had bruising and nobody else was injured.

    Past and present behaviour of the visa holder towards the department

25. The applicant claims in his response to the NOICC that he has always been truthful to the Department. However, the primary decision record indicates that  the applicant completed an Incoming Passenger Card (IPC) upon his last entry to Australia on 14 May 2023 and he failed to declare the criminal convictions on his IPC, contrary to the requirements of s. 102 of the Act. In his response to the NOICC the applicant states that he made an error when completing the IPC, believing the question referred to convictions outside of Australia. The applicant noted that he did not seek to gain any benefit or advantage through the incorrect answer. In oral evidence to the Tribunal the applicant said that at the time, he had been travelling for nearly two days and was too tired and that is why he gave incorrect answer on the IPC.

    Whether there would be consequential cancellations under s 140

26. There are no persons who would be subject to the 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

27. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become 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 would have limited opportunities to make visa applications onshore due to the limitations imposed by s 48. The applicant may also be subject to an exclusion period if he was to make an application offshore.

    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

28. There are no children who would be affected by the cancelation of the visa. The applicant’s evidence to the Tribunal is that he has returned to Pakistan to await the processing of another visa and he told the Tribunal that he is not involved in any politics. The applicant has not raised any issues that may give rise to Australia’s protection obligations and, given that the applicant is now outside of Australia, the Tribunal does not consider that such obligations arise. The applicant does not have family in Australia. The Tribunal finds that  Australia’s international obligations will not be breached as a result of the cancellation.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

29. The visa in question is a temporary visa.

    Any other relevant matters

30. The applicant told the Tribunal that he deserves a second chance. He states that he has a good history, has never had a criminal record either in Australia or in Pakistan.

31. The applicant told the Tribunal that he has recently lodged an application for another skilled visa but that process might take time.

32. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant held a temporary visa and had been convicted of an offence. There are grounds for cancelling his visa.

33. The Tribunal accepts that the applicant has been fulfilling the purpose of his travel to and stay in Australia but working in a skilled occupation. The Tribunal accepts that  some hardship would be caused to the applicant and his family as the applicant will not have the opportunity to continue his employment in Australia if his visa is cancelled and that may affect his financial position and ability to support his parents. These matters weigh against the cancellation.

34. The cancellation of the visa will not be in breach of Australia’s international obligations. There is no evidence of any breaches of visa conditions.

35. The Tribunal acknowledges that the applicant may not have complied with s. 102 of the Act by failing to mention his conviction on the IPC. This is not the ground of the cancellation set out in the NOICC but evidences another breach of the law. The Tribunal gives it some weight in favour of the cancellation.

36. The Tribunal gives considerable weight to the circumstances in which the ground for cancellation arises. The applicant had been convicted of offences resulting from a car accident when the applicant claims he misjudged the distance between his car and another car and failed to give way. There is no suggestion that the applicant had deliberately engaged in criminal or anti-social conduct or that he had deliberately caused harm or injury to others. The offence indicates careless driving, rather than an intentional engagement in harmful conduct. In the Tribunal’s view, the circumstances in which the ground for cancellation arises do not weigh in favour of the cancellation.

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

    DECISION

38. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 476 (Skilled - Recognised Graduate) visa.

    Kira Raif
    Senior Member