Firdous (Migration)

[2024] AATA 407

Firdous (Migration) [2024] AATA 407 (26 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shoeb Bin Firdous

REPRESENTATIVE:  Mrs Parminder Kaur (MARN: 2117328)

CASE NUMBER:  2315640

HOME AFFAIRS REFERENCE(S):          BCC2023/5410977

MEMBER:Bridget Cullen

DATE:26 February 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 26 February 2024 at 1.08pm

CATCHWORDS
MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted on basis of application for student visa – criminal conviction, fine and community correction order in force – discretion to cancel visa – circumstances of offence – no insight into behaviour – character references – delay to wedding in home country because of visa travel restrictions – student visa application in progress and possibility of applying for Bridging E visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 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 29 September 2023 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 delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancellation of the Applicant’s visa existed under regulation 2.43(1)(oa) of the Migration Regulations on the basis that the Applicant had been convicted of an offence in the State of New South Wales on 1 August 2023. 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 15 February 2024 to give evidence and present arguments via Microsoft Teams videolink. The Applicant’s representative attended the hearing and made submissions in support of the Applicant’s case.

4. The Applicant gave evidence about the grounds for cancellation set out in the delegate’s decision record, which he provided to the Tribunal, as well as his current circumstances, desire to continue studying in Australia, the impact cancellation would have on himself and his family, and other matters relevant to the cancellation decision.

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(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 or the Tribunal 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(1)(oa) is relevant.

8. The evidence before the Tribunal indicates that the Applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging A visa on 11 September 2023. The Applicant held a Bridging A visa which was granted to him on 8 September 2023 on the basis of an application for a Student (Subclass 500) visa that he had lodged with the Department. The NOICC indicated that the Department of Immigration had been advised that the Applicant had been convicted of Assault occasioning actual bodily harm – T2, in the Waverley Local Court of New South Wales on 1 August 2023 for which he received a monetary fine of $750.00 and a Community Correction Order of 15 months commencing 1 August 2023, concluding on 31 October 2024.

9. The Departmental delegate invited the Applicant to provide any reasons as to why his visa should not be cancelled. The Applicant explained the circumstances that led to his offending in his response to the NOICC:

   I would like to start with explaining what happened that day. I was driving an uber and went to Travel Lodge Hotel at the domestic airport. There was a taxi driver who was blocking all the front entrance of the hotel. He stared at me weirdly and I asked if I knew him, to which he did not reply. He again stared at me weirdly and I asked again if I knew him. Upon me asking if there was anything he needed from me, he started abusing me. He started off by swearing my mother and sister and said that he will do bad things (reference to sexual things) to my mother and sister Infront of me. I resisted for some time, but he kept provoking me and kept abusing my mother and sister.

   My dad had passed away long time back and my mother has raised me and my sister. Being raised by a single mother, I am extremely close to my mother and could not resist him saying inappropriate things to her. I still did not say or do anything at that time. When I was leaving, he said come and meet me at the international airport and I will show you who I am and will show you how I treat your mother Infront of you.

   I dropped off my passenger at the international airport and found the taxi driver there. I don’t know what happened to me, I could not stop myself but broke into a fight with him. I knew that I did wrong by breaking into a fight and therefore, I went to the police station straight after that incident. I explained them what happened and realised that I could have stopped myself from doing so.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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 (1)(oa) is relevant.

11. The Tribunal is satisfied that the Applicant was the holder of a subclass 010 Bridging A visa, which is a temporary visa. The Tribunal is also satisfied that the Applicant has been convicted of an offence against the laws of New South Wales on 1 August 2023.

12. The Tribunal is therefore satisfied that r.2.43(1)(oa) is met and hence there is a prescribed ground for cancelling the Applicant’s visa under s.116(1)(g).

    Consideration of discretion

13. 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

14. The Applicant  arrived on a student visa for the purposes of studying, and has completed coursework including a Diploma of Business and Advanced Diploma of Telecommunications Network Engineering.

15. The Applicant says that following completion of his Advanced Diploma of Telecommunications Network Engineering, he realised that his true passion lies in the construction industry, and commenced an Advanced Diploma of Civil Construction Design at the Campbell Institute. The Applicant has provided evidence of his enrolment, and the Tribunal accepts that he is fulfilling the purpose for which his student visa was granted. As such, the Tribunal gives this consideration a little weight against cancellation.

    The extent of compliance with visa conditions

16. The visa in question is a Subclass 010 visa. There is no suggestion by the Department that the Applicant has breached any conditions of this visa. As the Tribunal expects that Applicants comply with visa conditions, the Tribunal weighs this slightly in the Applicant’s favour, as against cancellation.

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

17. The Applicant explained to the Tribunal that although he could obtain further qualifications in his home country of India, that these qualifications would not be viewed with the same esteem as Australian qualifications.

18. The Applicant would have to sell his car and bicycle if his visa was cancelled. He says that he will lose confidence in himself, and likely become depressed. He also says that his return to India in these circumstances would be distressing to his mother and sister. Further, he has had to delay his wedding to his Indian fiancée, as he is not able to enter and exit Australia at present to be able to attend a ceremony in India and then return.

19. The Tribunal accepts that the Applicant has experienced a level of emotional and psychological hardship, but also thinks that his own conduct led him to be in this situation. The Tribunal does not accept that the Applicant’s desire to work in the construction Industry can only be fulfilled by his attending school in Australia. There are many quality educational institutions in India where he could fulfill this desire. The Tribunal accepts that there would be some inconvenience in selling his car and bicycle, but otherwise does not accept that he would experience any financial hardship as he will be able to recover fair market value for those items.

20. The Tribunal gives this consideration some weight against cancellation of the visa.

    Circumstances in which ground of cancellation arose.

21. The Tribunal asked the Applicant if, at the time of his altercation with the taxi driver that led to the assault charges, if his mother and sister were in the car with him. The Applicant told the Tribunal that they were not, but that the driver of the taxi was from his hometown. The Tribunal asked if he had ever met the taxi driver before, and he said that he had not.

22. The Tribunal thinks that the Applicant has no insight into the unreasonableness of his response to the taxi driver’s alleged insults to his mother and sister, who were not even present for the alleged insults.

23. The Tribunal has considered the character references from the Applicant’s younger sister, fiancée, mother, relatives, and friends, as provided to the Tribunal by the Applicant. The Tribunal acknowledges that the Applicant has supportive references, which say that he has learned from his mistake. While these references are favourable, the Applicant continues to justify his behaviour by referring to the insults as a form of provocation; yet says that he is sorry.

24. The assault of the taxi driver in circumstances where the Applicant could simply have ignored him strikes the Tribunal as completely unreasonable. The Applicant told the Tribunal that his behaviour was the way that these sorts of matters are resolved back home. The Tribunal does not consider that the Applicant has any mature and considered appreciation for the extraordinary overreaction by him to the taxi driver’s alleged comments. The Applicant says that he was immature, but there was nothing in the Applicant’s evidence to suggest that he has since become more mature, as he continues to refer to the taxi driver’s alleged conduct without reflecting on his own in any depth.

25. The Applicant’s behaviour in the circumstances leading to cancellation was entirely unreasonable and caused harm to an individual. The Tribunal gives the Applicant’s conviction for Assault occasioning actual bodily harm – T2 significant weight in favour of cancellation.

    Past and present behaviour of the visa holder towards the department

26. Based on the evidence before it, the Applicant has been co-operative with the Department. He attended the police station voluntarily following the assault incident. The Tribunal gives this a little weight against cancellation of the visa.

    Whether there would be consequential cancellations under s 140

27. The circumstances of this case are such that there would be no consequential cancellations under s 140 of the Act. As such, this is not a relevant consideration and the Tribunal places no weight on this consideration, either in favour of or against a decision to cancel the visa.

    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

28. The Applicant has not claimed and there is no evidence before the Tribunal that the Applicant cannot return to India for reasons of safety or possible persecution, which should prevent refoulement.

29. If the Applicant’s visa is cancelled, he would become an unlawful non-citizen and could be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart. Additionally, cancellation will mean that a further limitation under section 48 of the Act will apply to the Applicant, which means that the Applicant will have limited options to apply for further visas in Australia. The Applicant may also be affected by Public Interest Criterion 4013, limiting the grant of a further temporary visa for a specified period.

30. Prior to visa cancellation, the Applicant lodged a student visa application which based on the evidence before the Tribunal does not appear to have been finalised. Upon affirming the cancellation of his Bridging A visa, the Applicant would be able to seek a Subclass 050 Bridging visa, valid until his student visa application is finally determined.

31. The Tribunal gives these considerations a little weight against cancellation.

    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

32. Based on the evidence before the Tribunal there are no children affected in the Applicant’s case. The Applicant has not raised any possible breaches of Australia’s international obligations. There is no suggestion that cancellation would lead to the Applicant’s removal in breach of Australia's non-refoulement obligations. As such, this is not a relevant consideration and the Tribunal places no weight on this consideration, either in favour of or against a decision to cancel the visa.

    Any other relevant matters

33. As noted, the evidence before the Tribunal indicates that the Applicant’s student visa application has not yet been determined.

    Overall consideration

34. The Applicant arrived in Australia in 2018 as a 20-year-old student visa holder.

35. The Tribunal notes that the Applicant was charged with Assault occasioning actual bodily harm – T2, in August 2023, at which time he was 25-years of age and had been in Australia for approximately 5-years. The Applicant is still subject to a Community Correction Order, which concludes on 31 October 2024.

36. The Applicant has been in Australia for an extended period as a temporary visa holder. He made a decision as an adult to contravene the laws of New South Wales, in circumstances that are difficult to comprehend, given that the insults he says were directed to his mother and sister could have no actual impact on his mother and sister given they were not even present. The Applicant’s poor impulse control led to his actually causing harm to a member of the public in a manner that is contrary to the laws that apply in this country.

37. The Tribunal accepts that there would be a degree of hardship if the visa was cancelled and the Applicant has to return to India, but the evidence before it does not lead to the Tribunal being satisfied that this hardship would be severe enough to warrant not cancelling the visa.

38. The Applicant’s student visa application, based on the evidence before the Tribunal is yet to be determined. In these circumstances, the Applicant will be able to make an application for a Subclass 050 Bridging visa until such time as it is determined.

39. In light of all the circumstances and consideration of the relevant discretionary considerations, the Tribunal finds that the Applicant’s Subclass 010 (Bridging A) visa should be cancelled.

    DECISION

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

    Bridget Cullen
    Senior Member