Deol (Migration)

[2019] AATA 1063

Deol (Migration) [2019] AATA 1063 (13 March 2019)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hardeep Singh Deol

CASE NUMBER:  1900162

HOME AFFAIRS REFERENCE(S):           BCC2018/5272124

MEMBER:Ann Duffield

DATE:13 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 March 2019 at 12:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – financial and emotional support for primary visa holder – serious offences against women – lack of remorse – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory. 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 applicant appeared before the Tribunal on 13 March 2019 to give evidence and present arguments. His wife was also present and gave evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent and his agent attended the hearing and made submissions.

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

   BACKGROUND

6. The parties provided the Tribunal with a copy of the delegate’s decision along with this application for review.

7. The applicant arrived in Australia in April 2017 as a dependent on his wife’s subclass 500 visa. His first offence occurred on 10 July 2017.

8. The applicant’s visa was cancelled on 28 December 2018 and he has been detained since that time. Had it not been cancelled, the applicant’s visa was due to cease on 19 March 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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?

   s.116(1)(g) - prescribed ground

10. 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(oa) is relevant.

11. In short, and relevant to the applicant’s particular circumstances, r.2.43(oa) states that for the purposes of paragraph 116(1)(g), the Minister may cancel a visa on prescribed grounds, including, as in the present case, if the Minister is satisfied that the visa holder has been convicted of an offence against a law of Queensland regardless of the penalty imposed.

12. In the present case the applicant has been charged and or convicted of the following two offences:

    a.10 July 2017 - Common Assault – 9 months’ probation – no conviction recorded

    b.25 July 2017 – sexual assault – 4 months imprisonment suspended for 2 years – conviction recorded

13. The Tribunal wrote to the applicant, providing him with a copy of his person history which it had summonsed from the Queensland Police Service, and seeking his response to the contents therein. The Tribunal informed the applicant that the information would, depending upon his response form the reason or part of the reason for affirming the decision under review.

14. In his written submission to the Tribunal the applicant stated that both incidents were misunderstandings due to his limited command of the English language, lack of understanding of social norms and the fact that he was unable to afford legal assistance. The applicant maintains he is innocent.

15. The applicant contends that he has suffered emotional and mental harm as a result of being detained and separated from his wife.

16. The applicant has provided a number of letters of support. However, it is notable that none of those letters refer to the actual charges and conviction imposed on the applicant

17. The applicant’s evidence at the hearing was that he believes that he was not given the opportunity to fully defend his case as he had no money for a lawyer to make an extensive defence. He claims that as a result his lawyer told him to plead guilty. The Tribunal asked the applicant if his lawyer explained to him why he should plead guilty he affirmed that he did.

18. The applicant continued to claim that the Australian judicial system did not give him a proper opportunity to defend himself because he couldn’t afford the cost and because of cultural misunderstandings. The Tribunal told the applicant that it was not its role to ventilate the charges for which he was found guilty. The Tribunal informed the applicant that its role was to find if grounds for cancellation existed as a result of his conviction.

19. The Tribunal put to the applicant that because of his conviction and the provisions of s.116(1)(g) it found that prescribed grounds existed and it would therefore proceed to consider whether or not his visa should be cancelled.

    DECISION WHETHER TO CANCEL

20. Having found that there are grounds to cancel the applicant visa, the Tribunal has taken into account the following matters as required by the Migration Act and Regulations and the guidelines set out in the Procedural Instructions on visa cancellation.

21. 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 including the degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the applicant’s visa is cancelled.

22. The applicant travelled to Australia as a dependent upon his wife’s visa in April 2017. Her visa ceases on 19 March 2019 and she told the Tribunal that she had applied for a further visa to complete her studies. She said that the applicant was not a party to that visa. The Tribunal asked her if she would return to India with the applicant in the event that his visa was cancelled and she said that whilst it would be difficult she wanted to stay and complete her studies.

23. The parties both told the Tribunal that the applicant was needed by his wife to remain in Australia as he provided financial and emotional support. The Tribunal put to both parties that should he be required to leave Australia and return to India he could nevertheless get a job there and send some money to his wife to pay for her fees. The applicant said it would difficult to make enough money to support his wife in India. The Tribunal notes in this regard that he applicant’s wife has nevertheless managed to survive whilst the applicant has been detained for the past several months. Prior to his detention the applicant was working full time.

24. The Tribunal accepts that the applicant’s wife wants to remain in Australia to complete her studies and that the applicant has supported her in these endeavours. However, it is a matter for both of them to decide whether she remains in Australia alone to complete her studies or returns to India with her husband.  The Tribunal is not satisfied that the applicant’s personal circumstances are such that they would compel the Tribunal not to cancel the applicant’s visa.

25. The Tribunal has considered the circumstances in which ground of cancellation arose and notes that a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

26. The applicant committed and was charged with two serious offences against two women. The applicant does not appear to have any awareness of the seriousness of his offending and has attributed his incarceration to failures in Australia’s judicial system. The facts are that the applicant assaulted two young women and caused them to fear for their safety and change their routines. He continues to make excuses for his behaviour claiming misunderstanding and cultural differences. When asked by the Tribunal which part of the judicial proceedings he thought were unfair and which part represented a misunderstanding of cultural matters the applicant claimed that he pleaded guilty because his lawyer told him to and there was a money problem.

27. The Tribunal is not satisfied that the applicant’s offences were beyond his control. He acted deliberately and without remorse for his actions.

28. The Tribunal has no information before it to suggest that the applicant’s past and present behaviour towards the Department has been uncooperative.

29. The Tribunal has considered whether there would be consequential cancellations under s.140 and finds there are no relevant factors.

30. The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable 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.

31. The Tribunal notes that if the applicant’s visa is cancelled this will not affect his wife’s visa which in any case is due to cease on 19 March 2019. She has applied for a further visa that does not include him as a dependent. It seems to the Tribunal there is no impediment to both the applicant departing Australia.

32. It is the case however that the cancellation of the applicants visa may prevent him from lodging new applications in Australia and may also be restrict his re-entry to Australia for a period of time. The Tribunal considers that this is the intention of parliament in introducing these measures and does not therefore give it any weight in the applicant’s favour.

33. The Tribunal has considered whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation. The applicant has not indicated that he has any children either in Australia or India who would be affected by the cancellation of his visa.

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

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Ann Duffield
    Senior Member