Bista (Migration)

[2022] AATA 2796

Bista (Migration) [2022] AATA 2796 (8 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjog Bista

REPRESENTATIVE:  Mr Raju Kc (MARN: 1799073)

CASE NUMBER:  2113060

HOME AFFAIRS REFERENCE(S):          BCC2021/1414574

MEMBER:James Silva

DATE:8 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 08 July 2022 at 10:59am

CATCHWORDS
MIGRATION – Cancellation – Subclass 010 (Bridging A ) visa – criminal conviction – applicant’s relationship with his spouse has broken down –applicant would no longer be eligible for the grant of a temporary skilled visa as his wife’s dependant –  domestic violence – no compelling reason to stay in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 September 2021 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 (Cth) (the Act).

2. The applicant (former visa holder) is a national of Nepal, born in August 1993. On 11 March 2021, he was granted a Bridging A visa in association with his spouse’s application for a temporary skilled visa. On 4 August 2021, a delegate of the Minister issued a Notice of Intention to Consider Cancellation (NOICC) of the visa, which was notified on 26 August 2021[1]. On 7 September 2021, the applicant provided a response to the NOICC. On 21 September 2021, the delegate cancelled the visa. The applicant seeks review of the delegate’s decision.

   [1] The decision was originally notified to the applicant by letter sent by registered post, but this was returned unclaimed. It was then notified by email, after the applicant notified the Department of his email address.

3. The delegate cancelled the visa under s.116(1)(g), following the applicant’s convictions on 5 March 2021 for criminal offences.

4. The applicant does not dispute that the ground for cancellation is made out. The issue in this case is whether the visa should be cancelled.

5. On 12 May 2022, the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 July 2022. On 7 July 2022, the applicant advised the Tribunal that he did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable him to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

6. The applicant was represented in relation to the review by Mr Raju Kc, a migration agent of Koala Solutions.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s 116 of the Act, the Minister may cancel a visa if they are satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s 116(1)(g), which requires that a prescribed ground for cancelling a visa applies to the holder (subject to certain qualifications that are not relevant to this case). In the present case, the prescribed ground is regulation 2.43(1)(oa) which refer to the holder having been convicted of an offence (further details are set out below).

9. 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.

   Background

10. The applicant is a 29 year old man from Nepal. The delegate’s decision record, which the applicant provided to the Tribunal, contains relevant background information.

    §  He arrived in Australia on 26 May 2019, on a student visa, as the dependant of his spouse, Ms Binita Rayamajhi.

    §  On 11 March 2021, Ms Rayamajhi applied for a Skilled (Provisional)(subclass 485) visa and included the applicant as her dependant in this application. The applicant (as well as Ms Rayamajhi) was a granted Bridging A visa in association with the skilled visa application.

    § On 4 August 2021, the Department issued an NOICC under s.116, on the basis of the applicant’s conviction for offences in Victoria. The applicant responded on 7 September 2021.

    §  On 21 September 2021, the delegate cancelled the visa. On 27 September 2021, the applicant lodged an application for review of the decision to cancel the visa.

    §  The applicant has not held any visa since the Bridging A visa cancellation. He is currently in the community, unlawfully.

11. The Tribunal has before it the Department file, which includes documents relating to the applicant’s conviction[2], and procedural and administrative matters. The delegate’s decision record includes relevant information relating to the applicant’s conviction. In his response to the NOICC, the applicant provided a number of supporting documents:

    §  A statutory declaration dated 7 September 2021.

    §  Letter of support from Ms Sneha Bista, the applicant’s sister.

    §  Letter of support from Mr Sukdhev Thapa, the applicant’s friend.

    §  Correspondence about the applicant’s enrolment in a community work program, July 2021

    [2] Victoria Police Brief of Evidence Cover Sheet, Charge Sheet, Undertaking of Bail and witness statement.

12. The applicant provided a copy of the delegate’s decision record to the Tribunal, but no further documentary evidence relevant to the visa cancellation. On 5 July and 6 July 2022, his representative advised the Tribunal orally that the applicant’s relationship with his spouse has broken down. The context for this was in explaining the applicant’s decision not to attend the hearing, and his (the applicant’s) acknowledgement that would likely result in the decision under review being affirmed.

    Does the ground for cancellation exist?

13. 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. It states:

    (oa) 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)).

14. In the present case, the applicant was the holder of a Bridging A visa, which is a temporary visa other than subclass 050, 051 and 444 visas.[3]

    [3] The Tribunal notes that, at the time of the conviction on 5 March 2021, the applicant held a student visa. However, this is not the relevant point in time and, in any event, would also fall within the category of temporary visa referred to in r.2.43(1)(oa).

15. As noted in the delegate’s decision record, the applicant was convicted on 5 March 2021 in Broadmeadows Magistrates’ Court of the following offences: ‘Unlawful Assault’, ‘Assault By Kicking’, ‘Make Threat to Kill’, and ‘Contra Fam Viol Ord-Int Harm/Fear’.

16. The applicant acknowledged these facts in his response to the NOICC (although he provided some comments about the circumstances in which the offending occurred). He did not dispute that the ground for cancellation exists.

17. The Tribunal finds that the conviction falls within the prescribed ground set out in s.2.43(1)(oa), as a ground for cancellation.

18. 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

19. 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

20. The applicant’s travel to Australia was to accompany his wife, who held a student visa. When she applied for a skilled visa on 11 March 2021, he obtained a Bridging A visa for the purpose of continuing to accompany and support her while the visa application was being processed. In his response to the NOICC, the applicant identified this as the reason why he needs to remain in Australia.

21. The delegate’s decision record of 21 September 2021 noted that there was ‘no evidence their relationship has broken down’, despite the applicant’s conviction for domestic violence offences. However, recent advice that the relationship has indeed broken down raises questions about the purpose of the applicant’s continued stay in Australia.

22. The Tribunal has no further information about the extent of the relationship breakdown, the applicant’s current circumstances or whether he has any other need to remain in Australia. It is unable to be satisfied that there exists any need, let alone compelling need, for him to remain here.

23. The Tribunal gives this factor neutral weight in considering whether to cancel the visa.

    The extent of compliance with visa conditions

24. The Bridging A visa had no conditions attached. This consideration is therefore not relevant.

    Circumstances in which the ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

25. The ground for cancellation arose from the applicant’s conviction on 5 March 2021 for the offences of ‘Unlawful Assault’, ‘Assault by Kicking’, ‘Make Threat to Kill’, and ‘Contra-Fam Viol Interv Ord-Int/Harm/Fear’. He was given a community correction order for 18 months, requiring the performance of 175 hours of unpaid community work.

26. In his statutory declaration of 7 September 2021 (response to the NOICC), the applicant commented on the circumstances that led to the offending:

    §  He admitted verbally and physically abusing his wife, on 13 April 2020 and on 19 July 2020.

    §  He explained that he was unemployed for three months during the COVID pandemic. During this period, his wife met their living expenses, and the couple argued over financial matters. Prior to the incidents in April 2020 and July 2020, they had been arguing for several weeks.

    §  The applicant became depressed, due to his lack of work and his worry about his family’s welfare in Nepal. He turned to alcohol and recreational drugs, which further impacted his judgement and decision-making.

27. The applicant also addressed subsequent events (current as of 7 September 2021, and relevant insofar as they may shed light on the circumstances of the prior offending):

    §  He is remorseful of his past treatment of his wife. He and his wife have subsequently been living together, working on their marriage. He would like to remain in Australia to live and support his wife while she is on a skilled visa.

    §  He has complied with the court order to stay away from his wife.

    §  He also performed the unpaid community work to which he was sentenced, but had been unable to complete it due to COVID lockdown restrictions. (There is no updated information as to whether he has since complied with this requirement.)

    §  He underwent anger management and telephone assessments, and did activities such as yoga and meditation to improve himself.

28. The applicant’s sister Ms Sneha Bista wrote that he is a ‘very responsible and hardworking person who loves his family so much’. His friend Mr Sukhdev Thapa described the applicant as a ‘great personality and very respectful person’.

29. The limited available information indicates that there were specific incidents of domestic violence on two occasions, and that they formed part of ongoing friction within the relationship. The National Domestic and Family Violence Bench Book recommends caution when considering whether external factors (in this case, the applicant’s unemployment, financial pressures and worries about the COVID-19 pandemic) are to blame for such violence. The Tribunal is not satisfied on the limited available material – including the applicant’s response to the NOICC, the supporting statements and his evidence about subsequent steps to address his conduct – that the circumstances that led to the applicant’s offending were beyond his control.

30. Taking all of this information into account, the Tribunal places significant weight on this consideration in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

31. The Tribunal has no adverse information about the applicant’s behaviour towards the Department, and notes the delegate’s observation that he was ‘co-operative and prompt’ in his dealings with the Department. A question arises as to whether he has since approached the Department to regularise his visa status (given that he is unlawful, and may be able to apply for a Bridging E visa), but the Tribunal has insufficient information on this matter. It places a small degree of weight on this consideration against cancelling the visa.

    Whether there would be consequential cancellations under s 140

32. There is no information to suggest that the Bridging A visa cancellation would result in any consequential cancellations. It would have no impact on his wife’s ongoing temporary skilled visa application, as she is the primary visa applicant and he is the dependant; or on her continued eligibility for a Bridging A visa associated with that application.

    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

33. The cancellation of the Bridging A visa means that the applicant would likely become unlawful, and liable to detention and removal.

34. The Tribunal notes that the applicant has in fact been unlawful and in the community since the cancellation of the Bridging A visa on 21 September 2021. There is scant information as to his current circumstances, such as whether he has engaged with the Department to obtain a Bridging E visa (on the basis of this application for review, and/or his wife’s skilled visa application); and/or other factors that explain why he is not currently in immigration detention.

35. Looking ahead, the available information strongly suggests that, if the visa is cancelled, the applicant would not be eligible for a Bridging E visa on the basis of his wife’s ongoing application for a skilled visa, as he would no longer be her dependant.

36. Section 48 statutory bar: Under s 48(1)(b)(ii) of the Act, applicants who have had their visas cancelled since their last entry into Australia may only make a valid visa application for the classes of visas which have been prescribed by reg 2.12 of the Migration Regulations. These include partner, protection and bridging visas, among others. The applicant has not indicated his future intentions in relation to staying in Australia or making any such visa applications.

37. Public Interest Criterion 4013: PIC 4013(2) states that a person is affected by a risk factor if a visa previously held by the person was cancelled under s.116 [and other sections of the Act] […] (d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(oa) [and other sub-regulations…] applied to the person. PIC 4013(1) states that a person affected by this risk factor can be granted a visa only if the visa application is made more than three years after the visa cancellation; or the visa grant is justified within three years on the basis that the Minister is satisfied there are compelling circumstances that affect the interests of Australia, or compassionate and compelling circumstances that affect the interest of an Australian citizen […]. In practical terms, this means that the applicant would not be eligible for a relevant visa grant until September 2024.

38. The breakdown of the relationship means that the applicant would no longer be eligible for the grant of a temporary skilled visa as his wife’s dependant. There is no information to suggest that he has applied for any other relevant visa.

39. The Tribunal considers it likely that the visa cancellation would leave the applicant unlawful, and liable to detention and removal. This is an intended consequence of the legislation, and the limited available information suggests this would be appropriate and would not cause undue hardship.

40. The Tribunal places negligible weight on this factor against cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)[4]

    [4] The Tribunal has decided to first consider the legal consequences of cancellation, as these will play a key role in determining what other financial, psychological, emotional or other hardships may flow from cancellation.

41. In his response to the NOICC, the applicant focused on the hardship that the visa cancellation would cause if he could no longer live with his wife in Australia and support her. Recent advice of the relationship breakdown leaves the Tribunal unable to be satisfied that the visa cancellation would cause any such hardship in the future. Also, the lack of current information about his current circumstances means that the Tribunal is unable to be satisfied that the applicant would suffer any other hardship, including financial or psychological, as a result of the visa cancellation.

42. The Tribunal places negligible weight on this consideration against cancelling the visa.

    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

43. The applicant has not claimed or suggested that Australia has protection obligations in respect of him, although s.48 would not prevent him from making a protection visa application in the future. As such, the Tribunal is not satisfied that the visa cancellation would result in any breach of Australia’s non-refoulement obligations.

44. The delegate briefly considered whether the applicant’s removal from Australia would breach Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR), which establishes the right to respect for the family (article 23) and the prohibition on unlawful or arbitrary interference with the family (article 17). On the limited available evidence – that is, the recent advice that the couple’s relationship has broken down, and the lack of any indication to the contrary – the Tribunal does not consider that the visa cancellation would disrupt ‘family unity’.

45. There is no evidence to suggest that the applicant has any children, or that any children would be affected as a result of the cancellation.

46. The Tribunal places negligible weight on this factor against cancelling the visa.

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

1. As the Bridging A visa is not a permanent visa, this is not a relevant consideration.

   Any other relevant matters

2. As noted above, in his statutory declaration of 7 September 2021, the applicant alluded to his remorse about the past abuse; his intention to support his wife while she is in Australia temporarily on a skilled visa; and his commitment to comply with court orders. This information is limited and, in light of recent advice that the applicant and his wife has separated, out-of-date. The applicant also mentioned his efforts to address the causes of his criminal conduct (such as anger management) and to improve himself. There is no current information about such activities, or their results, and the Tribunal is unable to place weight on them in this assessment.

   Summary

3. The Tribunal has considered the totality of the applicant’s circumstances. It finds that there are grounds for cancelling the visa because the applicant has been convicted of criminal offences while holding a relevant temporary visa.

4. The Tribunal places significant weight on the circumstances in which grounds for cancellation arose, namely the applicant’s conviction for assault, making threats to kill and breach of family violence orders. These are serious offences that breach community standards. The Tribunal is not satisfied on the available evidence that factors such as the COVID pandemic, the applicant’s period of unemployment, financial or mental health issues, or any substance abuse render this conduct beyond the applicant’s control, or mitigate it.

5. At the time of the decision under review, the applicant’s relationship with his wife weighed somewhat against the visa cancellation, as he had intended to remain in Australia as her dependant and to support her. Recent advice that the relationship has broken down means that the Tribunal is unable to place weight on it as a factor against cancellation of the visa.

6. The information before the Tribunal is limited mainly to the applicant’s response to the NOICC, from September 2021. As he did not participate in the hearing or make other substantive submissions, the Tribunal does not have before it other material that might weigh against cancellation of the visa.

7. The Tribunal concludes that the factors in favour of cancelling the visa outweigh those against.

   Conclusion

8. Considering the circumstances as a whole, the Tribunal concludes that the visa should be  cancelled

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   James Silva
   Member