Gill (Migration)

[2019] AATA 3132

Gill (Migration) [2019] AATA 3132 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amritpal Singh Gill

CASE NUMBER:  1902434

HOME AFFAIRS REFERENCE(S):          BCC2018/4121487

MEMBER:Jason Pennell

DATE:13 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 13 May 2019 at 4.30pm

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – convicted of offences – arrived as wife’s dependant – relationship break down – convicted and sentenced – relatively young and qualified – able to find employment upon return to India – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 140
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 25 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa under s.116(1)(g) of the Act and the prescribed grounds under Regulation 2.43(1)(oa) on the basis that he has been convicted of offences against the 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 May 2019 to give evidence and present arguments. 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.

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) and Reg 2.43(1)(oa). 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

1. 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.

2. The applicant arrived in Australia on 30 November 2014 with his wife Ravinderjeet Kaur (‘the wife’) as a dependant on her Student visa. Ms Kaur was enrolled to study in a Master’s Degree in Electronic Engineering at RMIT. The applicant holds a Temporary Graduate visa granted to him on 17 May 2017 as a dependant of Ms Kaur. The visa is due to expire on 17 May 2019.

3. The applicant claims that he was born in Ludhiana, Punjab, India on 17 January 1989. His parents continue to live in Ludhiana. His father is a retired government employee and his mother is engaged in home duties. He has sister who resides in the United States of America. The applicant attended school at Kundan Vidya Mandir School in Ludhiana, Punjab and obtained a Bachelor of Engineering from Ludhiana College of Engineering and Technology (LCET). Prior to traveling to Australia the applicant worked as a CNC Machine operator in an automotive manufacturing parts company. The marriage between the applicant and Ms Kaur was arranged by their families and they were married in 2013. The Tribunal accepts the applicant’s evidence in relation to his background and family.

4. The applicant’s evidence was that he travelled to Australia for a better life and to support his wife while she pursued her studies. While in Australia the applicant initially worked in a carwash and as a pizza delivery person and then as a fulltime courier. The applicant’s evidence was that in or about January 2018 his wife travelled to India. His evidence was that she has returned to Australia but he has not had any contact with her since her return. The applicant conceded that the department was informed in or about July 2018 that their relationship had ended. His evidence to the Tribunal was that his wife had recently issued proceedings for a divorce.

5. On 2 January 2019 the department received information from Victoria Police that the applicant had been convicted and sentenced for the following charges (‘the offences’) at the Broadmeadows Magistrates Court on 30 October 2018:

Charge

Result

·     Use Unregistered Motor Vehicle – Highway

·     2x State False Name when requested

·     Use Heroin

·     Drive Vehicle Number Plate not Affixed/ Displayed as required.

With conviction, fined an aggregate of $1500.00

Order referred to the Director, fines Victoria for collection and management.

·      Drive Whilst Authorisation Suspended

With conviction, fined an aggregate of $1,500.00

Order referred to the Director, fines Victoria for collection and management.

Suspended from driving for 3 months

Order on licence effective from 30/10/2018

·      2x obtain property by deception

·      3x Burglary

·      4x Theft

·      2x Commit Indictable Offence Whilst on Bail

·      Attempted Burglary

·      Dishonestly receive Stolen Goods

·      3x Fail to Answer Bail

·      Theft from Shop (shop steal)

·      Carry Prohibited Weapon without Exemption or Approval

·      Hinder Police Officer

·      Resist Police Officer

·      3x Dishonestly Undertake in Retention of Stolen Goods Go Equipped to Steal/ Cheat

Aggregate 6 months imprisonment concurrent.

Effective total state term imposed 6 months. Time held in custody, 49 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with other State sentences imposed this day.

·     Traffic cocaine

·     Possess Ecstasy (MDMA/MDA/MDEA/MDA’s)

·     Posses cannabis

·     Possess Methylamphetamine

Aggregate 6 months imprisonment Concurrent.

Effective total state term imposed 6 months. Time held in custody, 49 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with other State sentences imposed this day.

·     Possess Prohibited Weapon without Exemption/Approval.

·     Go equipped to Steal/Cheat

·     Possess Controlled Weapon without Excuse.

Aggregate 6 months imprisonment concurrent.

Effective total state term imposed 6 months. Time held in custody, 49 days, reckoned as a period of imprisonment already served under this sentence. Concurrent with other State sentences imposed this day.

1. The applicant pleaded guilty to all the charges and was convicted and sentenced to an aggregate fine of $1,500.00 together with 6 month’s imprisonment to be served concurrently with other State sentences imposed.

2. By a Notice of Intention to Consider Cancellation (NOICC) dated 7 January 2019 the applicant was informed by the Department of Home Affairs that as he had been convicted of offences against the laws of the Commonwealth, State or a Territory his visa may be cancelled in accordance with r.2.43(1)(oa) under s.116(1)(g) of the Act. Accordingly, the Department invited the applicant to make any comment on the grounds of cancellation and to give reasons as to why his visa should not be cancelled.

3. By a letter dated 9 January 2019 the applicant confirmed to the Department that he had been convicted and sentenced of the offences. However, he claimed that his visa should not be cancelled by reason of the fact that from the time he was charged in or about March 2018 to the time he was convicted and sentenced on 30 October 2018 he did not commit and further offences and had complied with all his conditions.

4. By a Notification of Cancellation under section 116 of the Migration Act dated 25 January 2019 the Department advised the applicant that after weighing up all the available information that his visa was cancelled under paragraph 116(1)(g) of the Act. The Department did not consider any other ground under s.116 of the Act in cancelling the applicant’s visa. The applicant acknowledged receipt of the Notification of Cancellation under section 116 by signing an Acknowledgment of Receipt dated 25 January 2019.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation in 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

1. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.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.

2. The primary considerations are:

   ·the Government’s view that the prescribed grounds for cancellation at r.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.

19.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.

1. 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’.

Applicants purpose of traveling and staying in Australia.

1. The applicant arrived in Australia on 30 November 2014 with his wife Ravinderjeet Kaur as ad dependant on her Student visa. Ms Kaur was enrolled to study in a Master’s Degree in Electronic Engineering at RMIT. The applicant holds a Temporary Graduate visa granted to him on 17 May 2017 as a dependant of Ms Kaur. The visa is due to expire on 17 May 2019.

2. The applicant’s evidence was that he travelled to Australia for a better life and to support his wife while she pursued her studies.

3. The applicant’s evidence was that he and his wife were having difficulties in or about 2016. His evidence was that from March 2016 he started to receive threats from his brother in law. Despite the threats in August 2016 he travelled back to India to meet with this wife’s family (in particular his brother in law) to discuss the matter. However, he said that he only saw his in-laws for a short period of time and since his brother in law had refused to travel to his parents’ house he did not speak to him at all. His evidence was that in or about January 2018 his wife had travelled back to India and upon her return had refused all contact with him. The applicant conceded that his wife had informed the department in early 2018 that their relationship had ended and that he had been served with court documents from his wife by which she had issued proceedings for a divorce. The Tribunal notes that by an email dated 19 January 2019[1] the applicant’s wife confirmed to the department that their relationship had broken down. Accordingly, based on the applicants own evidence and Ms Kaur’s email on the department file, the Tribunal finds that the applicant’s relationship with his wife has broken down.

   [1] Department File BCC2018/4121487 @ f63

4. Therefore, while Tribunal accepts that at the time of his visa application the applicant’s intention was to travel and stay in Australia to support his wife, given the breakdown of their relationship, the Tribunal gives no weight to this consideration in favour of the applicant.  

Compliance with visa conditions

1. In his letter dated 9 January 2019 the applicant concedes that he was convicted and sentenced of the offences. The applicant also conceded to the Tribunal that having been convicted and sentenced of the offences that he breached of s.116(1)(g) of the Act. The applicant admitted that he was aware that it was a condition of his visa that he complied with the laws of Australia. Therefore, in circumstances where he has been convicted and sentenced of the offences, the Tribunal gives no weight in favour of the applicant in relation to this factor.

The degree of hardship that may be caused to the Applicant. 

1. The applicant’s evidence was that in the event his visa is cancelled he would suffer hardship by having to return to India. The applicant stated to the Tribunal that he had come to Australia to obtain a better life. He said that he had nothing left in India. He said that his parents had spent all they had on his wife’s education and that, if he was to return to India, despite his Tertiary qualification, he would not be able to find employment that would provide him with a better income that he could obtain in Australia.

2. However, the applicant is still relatively young. The applicant holds a Bachelor of Engineering from LCET which has been described as of the prestigious institutes for Engineering and Management studies in India and is said to have an excellent placement record. Therefore, given his tertiary qualifications and experience in India and Australia, the Tribunal finds that he has the ability to apply himself for the purposes of earning and living and providing a good and stable life for himself in India. 

3. The applicant also says that because of the he has been convicted and sentenced for the offences he has been shamed in the eyes of his family.  While the Tribunal accepts that he will be embarrassed and ashamed for having been convicted and sentences for the offences, given his relatively young age he still has the opportunity of finding work and applying himself to his career for the benefit of himself and his family.

4. He has resided in Australia since 30 November 2014 having returned to India for approximately 3 months from August 2016 to December 2016.  The Tribunal accepts that the applicant may have established some personal ties to the Australian community during his time in the country. However, in his time living in Australia he has amassed a considerable criminal record for which he has been convicted and received a custodial sentence. The Tribunal notes the applicant’s evidence that while here in Australia he ‘fell into the wrong crowd’ which lead to him being convicted and sentenced for the offences. However, the seriousness of the crimes for which the applicant has been found guilty, he has demonstrated a considerable lack of self-control and a complete disregard for the welfare of his family and community. In the circumstances, the severity of the crimes committed by the applicant is of considerable concern to the Tribunal.  

5. The applicant stated in his email dated 9 January 2019 that he wanted to help his wife to get better experience for her job in the future. He stated that he wanted to continue to assist his wife to establish her career in Australia. However, the applicant’s evidence to the Tribunal was that in or about July 2018 his wife had informed the department that their relationship had broken down and that she had recently issued proceedings for a divorce. Accordingly, based on the applicant’s evidence and the email by the applicant’s wife dated 18 January 2019, Tribunal gives no weight to this consideration in favour of the applicant.  

6. The Tribunal notes that the applicant’s evidence was that he and his parents have funded his wife’s tuition fees and living expenses in Australia. The applicant did not provide any supporting evidence in relation to him or his parents having funded his wife’s study in Australia.  Nevertheless, the Tribunal accepts his evidence and therefore accepts that they have suffered some financial hardship. However, it appears that such financial hardship is as a result of the breakdown of his relationship with his wife rather than the cancellation of his visa. While, the Tribunal accepts that the applicant’s conviction and sentencing of the offences will have contributed to the breakdown of their relationship, from the applicants own evidence, it appears that their relationship was under strain in or about 2016 and that the breakdown was would have occurred anyway. However, even accepting that the cancellation of the applicant’s visa has caused him and his parent’s financial pressure as claimed, the Tribunal repeats and affirms it finding that the applicant is relatively young, qualified and as such it is reasonably likely that he will be able to find employment upon his return to India for the benefit of himself and his family. Accordingly the Tribunal gives little weight to this consideration in favour of the applicant.

7. Therefore, while the Tribunal recognises that the applicant will suffer some hardship as a result of his visa being cancelled it places little weight on this consideration. The applicant was aware of the visa conditions when he obtained his visa. As such he would have reasonably known that by being convicted of a criminal offence that it would impact on his eligibility to maintain his visa in Australia. As such, the Tribunal gives little weight in favour of the applicant in considering this factor. 

The circumstances in which the grounds for cancellation arose

1. On 2 January 2019 the department received information from Victoria Police that the applicant had been convicted and sentenced of the following charges at the Broadmeadows Magistrates Court on 30 October 2018. The applicant claims that up until 2018 he and his wife were happy and doing well. He said that he started going out and fell in with the wrong crowd. He claims that he lost his job ad fell under the influence of drugs and the wrong people. As a result he says that he started committing crime to support his drug addiction and support his living costs.

2. The applicant states that he was arrested in March 2018 and was convicted and sentenced in October 2018. He states that during this time he did not commit any other crime and complied with his conditions. However, the Tribunal notes that the applicant has been convicted of failing to comply with his bail conditions on three occasions. The applicant says that his failure to comply with his bail conditions was a mistake and was not as a result of his failure to report but as a result of him reporting late.

3. The applicant says that he has completed a drug and alcohol programs while he was in prison and now realises that his offending has jeopardised his wife’s and his status to remain in Australia. He states that he is now remorseful for his actions.

4. The applicant says that his offending was over a period of one month and that as a result of him being in with the wrong crowd. However, the applicant’s behavior was not an isolated incident, but conducted over a number of occasions and includes a number of offences ranging including drug possession, burglary, theft, firearms offences and receiving stolen goods. The circumstances by which the grounds for canceling the applicant’s visa were not beyond his control. Rather, the applicant has demonstrated behavior that has been opportunistic and demonstrating a complete lack of self-control and a disregard for the welfare of his family and community.  More generally he has displayed a flagrant disregard and lack of respect for the law of the Commonwealth and State.

1. Therefore, given the sever nature of the offences, the opportunistic nature of the applicant’s actions and his  flagrant disregard for law, the Tribunal gives no weight no weight to this consideration in the applicant’s favour.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act. The applicant holds a Temporary Graduate visa granted to him on 17 May 2017 as a dependant of his wife. As such, the cancellation of the applicant’s visa will not affect his wife’s visa.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

DECEISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Jason Pennell

Senior Member