Gupta (Migration)

[2018] AATA 4247

Gupta (Migration) [2018] AATA 4247 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rydham Gupta

CASE NUMBER:  1826313

HOME AFFAIRS REFERENCE(S):           BCC2018/3184515

MEMBER:James Lambie

DATE:17 September 2018

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

Statement made on 17 September 2018 at 12:51pm

CATCHWORDS
MIRGATION – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal charges – deferral of studies – emotional and psychological hardship – detainment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 499
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 6 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis of the existence of a ground for cancellation under r.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 applicant appeared before the Tribunal on 14 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Akshay Narang. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. 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

5. 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

6. 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(1)(p)(ii) is relevant.

7. Mr Gupta has been charged with three offences under Queensland law:  one charge of sexual assault alleged to have been committed on 24 April 2018 and two breaches of bail, each alleged to have been committed on 29 July 2018.  The Queensland Police Service charge sheets were obtained by the Tribunal under summons.  Copies were provided to the applicant at the hearing pursuant to s.359A.

8. The existence of the charges (as opposed to the facts and matters alleged in them) was not disputed by Mr Gupta. The existence of the charges is a discrete issue for the purposes of r.2.43(i)(p)(ii).

9. 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

10. 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.

11. 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.

12. 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.

13. 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’.

14. Mr Gupta is a 20-year-old Indian citizen who entered Australia on a student visa on 15 February 2018.  He is single and has no dependents.  Accordingly, there are no children in Australia under the age of 18 who would be affected by the cancellation of his visa.  Therefore, the weight to be given to the consideration of cancellation of the visa is not affected by any other primary consideration.

15. I have had regard to the purpose of Mr Gupta’s travel and stay in Australia, which is to study for a Bachelor of Business at the University of the Sunshine Coast.  Mr Gupta has applied for a deferral of his studies and a refund of his second semester fees on the basis that the cancellation of his visa precludes him from continuing with his course. I give some weight to this factor.  However, I note that Mr Gupta’s deferral request is also predicated on the effect of the criminal charges on his ability to apply himself to his studies, which he describes as considerable.  I cannot ignore the totality of the circumstances affecting the continuation of Mr Gupta’s studies and I therefore reduce the weight I give this factor accordingly.

16. There was no evidence before me of any non-compliance with Mr Gupta’s visa conditions.  I give this factor some weight in his favour.

17. The bulk of the evidential material provided by or on behalf of Mr Gupta relates to the financial, psychological and emotional hardship that he is currently undergoing.  I have had regard to the testimony of Mr Gupta and Mr Narang and to the medical referral from Mr Gupta’s general practitioner.  While I consider that some emotional and psychological hardship has been occasioned by his being detained (and I give them some weight), it seems from the evidence that the principal stressors arise from the criminal charges he is facing.  These arose before the cancellation of his visa.  There are financial implications arising from the commitment of his tuition fees in respect of his second semester studies and the discontinuation of his casual employment.  I give some weight to this, although he has applied for a refund of his fees.  My comments in paragraph 15 also apply.  I note, but give only little weight to the consequential loss of rental income to Mr Narang.

18. I have considered the circumstances in which the ground of cancellation arose.  At present, it cannot be said that they arose because of factors beyond Mr Gupta’s control.  He offered explanations in respect of the charges but I am not in a position to ascribe any causal factors to them and, for the purposes of this application, must give primary regard to the fact of the charges and not to their merits.

19. Mr Gupta has been cooperative with the Department.  I accord this factor some weight in his favour.

20. There are no consequential cancellations arising from the cancellation of Mr Gupta’s visa.  The mandatory legal consequences have been considered in the context of paragraphs 15 and 17.  No international obligations are invoked and no further issues arise in terms of family or business ties.

21. On balance, after carefully considering the secondary considerations – especially those of claimed hardship – I must give the greatest weight to the primary consideration in circumstances where the applicant is facing serious criminal charges.

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

    DECISION

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

    James Lambie
    Senior Member