Brar (Migration)

[2023] AATA 806

Brar (Migration) [2023] AATA 806 (30 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navdeep Singh Brar

CASE NUMBER:  2303429

HOME AFFAIRS REFERENCE(S):          CLF2017/15174

MEMBER:James Lambie

DATE:30 March 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 30 March 2023 at 2:57pm

CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – granted after student visa ceased – charged with criminal offences – convictions and imprisonment – ground for cancellation accepted – discretion to cancel visa – circumstances of offending – deaths of mother and sister, mental health, drug use and rehabilitation – insufficient evidence about relationship with partner and her children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359A, 359AA, 375A, 376
Migration Regulations 1994 (Cth), r 2.43(1)(p)(ii)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant, namely, that he had been charged with an offence against a law of the Commonwealth, a State, a Territory or another country, a ground prescribed in reg. 2.43(1)(p)(ii). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The decision of 20 September 2018 was incorrectly notified to the applicant.  The Deopartment renotified the applicant of its decision 10 March 2023.

4. The applicant appeared before the Tribunal on 23 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. 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

6. 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). 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?

7. 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)(p)(ii) is relevant.

8. The Department issued the applicant with of a notice of intention to consider cancellation of his visa (‘the NOICC’) on 20 September 2018, citing the following particulars:

   Information has been received from Victoria Police indicating that, on the 5^th August 2018, you were charged with the criminal offences of unlicenced driving, driving an unregistered vehicle (also without correct plates), handle stolen goods and proceeds of crime.

   Victoria Police also provided further documents indicating that you were also charged, on 30^th April 2018, with handle stolen goods and statidng a false name to Police.

9. On 15 March 2023, the Tribunal issued a summons to Victoria Police for the applicant’s criminal history and all materials, summaries of charges, charge sheets, court decisions and orders, judgement records relating to the charges and any other documents relating to past and outstanding charges in the State of Victoria concerning the applicant.  That material was received the same day and put to the applicant under s. 359AA at the hearing, and also by letter under s. 359A on 23 March 2023.  The Tribunal asked if he wished to take some time to review that material.  He said he was ready to proceed. 

10. Following the hearing, in view of the applicant’s desire to submit additional evidence, the applicant extended the review period to 30 March 2023.

11. At the hearing, the Tribunal advised the applicant that it was in receipt of two notices, one issued under s. 375A of the Act and the other under s. 376, relating to certain folios of the Department’s file.  The Tribunal explained the effect of the notices and the general nature of the documents to which they applied.  It told the applicant that it considered the notices valid, but that also considered that the material to which they applied to be irrelevant to the review because the material concerns information gathering processes and internal Departmental procedures.  The material also refers to aspects of his criminal history which have been superseded by material provided to the applicant by the Tribunal, for which reason that material was also irrelevant.   The applicant confirmed that he understood and did not seek to make any submissions in respect of the notices.

12. The Tribunal asked the applicant if he accepted that the charges specified in the NOICC enlivened the ground for cancellation, noting that he had told the delegate in September 2018 that he would be pleading not guilty to the charges and would be contesting them, and that he was convicted of them on 13 November 2018 and sentenced to a term of imprisonment.  He told the Tribunal that he accepted that the grounds for cancellation existed but that they had arisen during a period in which his mental health had deteriorated, leading him to misuse drugs and commit crimes.  The Tribunal told him that it would come to the circumstances in which the grounds for cancellation arose separately.

13. 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

14. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

15. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

16. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

17. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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 took the applicant to the purpose of his travel and stay in Australia, and whether he had a compelling need to remain in Australia.  It suggested to him that he arrived in Australia in 2008 on a student visa.  He agreed that this was correct.  The Tribunal suggested that a student visa is a temporary visa.  He said that he accepted that.  The Tribunal further suggested that when someone enters a country on a temporary visa and commits criminal offences, it would not be an extraordinary result if their visa was cancelled.  He said that when he was on a student visa he was not taking drugs.  He said that he only started taking drugs when he was granted his subclass 485 (temporary graduate) visa.  He said he only started taking drugs when his mother and sister died within a short time of each other. 

19. The Tribunal asked if he received treatment or rehabilitation for his drug addiction while he was in prison or immigration detention.  He said he did a drug and alcohol course and was receiving monthly injections for his drug addiction and was now completely free of drugs.

20. The Tribunal asked if there were any people in Australia who would be financially, psychologically, or emotionally affected by the cancellation of his visa.  He said his girlfriend and her children would be affected.  He said that financially they would not be greatly affected but would be emotionally affected.  The Tribunal noted that it would be assisted by receiving some evidence from his girlfriend to that effect.

21. The Tribunal asked if there was personal hardship that might be caused to him.  He said he would find obtaining employment in India difficult.  The Tribunal suggested that he had previously claimed that his relationship with his father was a problem.  He said that his father wanted to him to enter an arranged marriage, which he did not wish to do.  He said he wanted an inter-caste or inter-religion marriage in Australia.  The Tribunal asked if he was referring to his girlfriend.  He agreed but conceded that he was not engaged to her.  The relationship started about 12 months ago. The Tribunal asked if his extensive criminal record might cause him problems with his family in India. He thought that it might.

22. The Tribunal suggested that the applicant had previously told the Department that he would be pleading not guilty to the charges listed in the NOICC and asked if he accepted that he had been guilty of them.  He said that he had to enter a guilty plea because it was easier to get bail.  The Tribunal asked if he accepted that he had subsequently been convicted of many additional offences.  He said that was true, but he was only really guilty of the driving offences.

23. The Tribunal asked if it was his claim that the charges arose from his psychological reaction to the deaths of close family members.  He said it was, but he had done many diplomas and now had those issues under control.  He said that some later charges arose from the mental health problems of his former girlfriend.  He said he was now totally reformed.  The Tribunal observed that some of his convictions may be too recent for it to fully accept his submission, but that his claim was noted.  He said he was now a different person, that he regretted his past behaviour, and was now psychologically stable.

24. The Tribunal suggested that, should the visa be cancelled, he might not be able to get another visa and there may be additional legal consequences.  He said that he understood.

25. The Tribunal asked if there were any other people in Australia who might be affected by the cancellation of the visa.  The applicant said there were not, but that he had a couple of cars in his name that he needed to sell and also needed to claim a tax refund.

26. The applicant told the Tribunal that he was ashamed of his offending and that, if given another chance, there would be no disappointments.

27. The Tribunal has considered 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.  It notes that he entered Australia on a student visa and was subsequently granted a temporary graduate visa in April 2015.  This visa, which ceased in 2016, was the last substantive visa he has held.  The Tribunal can give no weight to this factor in the applicant’s favour.

28. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The delegate noted that the applicant had been generally compliant with visa condition but had previously overstayed and become unlawful.  The Tribunal treats this matter as neutral in its determination.

29. The Tribunal has considered the degree of hardship (financial, psychological, emotional or other hardship) that may be caused by cancellation.  The applicant specifically disclaimed that his girlfriend or her children would be financially affected but claimed she and they would suffer emotional hardship.  Following the hearing, the applicant forwarded an undated document from a Samantha Watson, who claimed:

    I also wanted to mention the emotional impact of his departure from Australia would have on myself and my 2 little kids since Navdeep is like a father figure to them.  We would be devastated if Mr Navdeep is to sent back.

    The Tribunal notes that the relationship to which this refers is one of short duration and that it can have only limited confidence in the provenance of the document.  However, it is prepared to accord this factor a limited amount of weight in the applicant’s favour.  The Tribunal gives no weight to the applicant’s desire to sell his cars and await his tax refund.

30. The Tribunal has given careful consideration to the circumstances in which the ground for cancellation arose.  It accepts the evidence from the forensic reports that the applicant’s mother and sister died within a short time of each other, that this affected him psychologically, and that his drug use arose in that context.  However, it cannot be accepted that his criminal offending arose in circumstances beyond his control.  This conclusion is reinforced by the significant extent of the applicant’s further offending after having expressed remorse and an intention to reform in 2018.  No weight in favour of the applicant can be given to this factor. The applicant’s criminal history prior to the issue of the NOICC, commencing in 2011, is a matter to which I give weight in favour of cancellation.

31. The delegate found that the applicant had been generally cooperative and compliant in his dealings with the Department and gave this some weight in the applicant’s favour.  I do not propose to disturb this finding.

32. There would be no consequential cancellations under s. 140. 

33. The Tribunal has given consideration to the 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.  These are matters to which I give some weight in the applicant’s favour.

34. The Tribunal has considered 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.  The applicant did not raise the issue of non-refoulement, only claiming that his employment prospects in India would be limited and that his relationship with his father has been affected by differences over marriage and his criminal history.  He did not claim to fear coming to harm.  I do not consider that these give rise to non-refoulement obligations.  There is insufficient evidence as to the effect of cancellation on Ms Watson’s children, in particular, whether it is the applicant or another person or persons who provide paternal support to them.  The applicant conceded that he did not provide financial support.  The relationship has been of short duration and the Tribunal cannot be satisfied that family unity issues can be invoked.  The Tribunal does not accept that the best interests of children would be adversely affected by cancellation.

35. Having regard to the primary and secondary considerations, the Tribunal considers that the criminal charges (and subsequent convictions) should be given the greatest weight and that, for the reasons given above, very little weight can be given to the other factors.

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

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    James Lambie
    Senior Member