Gurparkash Singh (Migration)

Gurparkash Singh (Migration) [2023] AATA 3663 (13 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gurparkash Singh
CASE NUMBER:  2311491
HOME AFFAIRS REFERENCE(S):          BCC2023/3550088
MEMBER:Kira Raif
DATE:13 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 13 October 2023 at 4:01pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal convictions – fines, licence disqualification and drug and alcohol counselling – discretion to cancel visa – temporary visa and genuine temporary entrant – work in field unrelated to studies – no evidence of financial support or emotional hardship to sister – no convictions recorded and community corrections order for further offences – more charges pending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e), (g), 359A
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 27 July 2023 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 (Cth) (the Act).
The applicant is a national of India, born in May 1998. He was granted the Skilled visa in December 2022 and it was due to be in effect until December 2024. In February 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of his visa under 1116(1)(e) on the basis that his presence in Australia is or may be, or would or might be a risk to the health, safety or good order of the Australian community. The applicant provided his response to that NOICC and a decisions was made not to cancel the applicant’s visa. He was subsequently convicted of an offence and issued with a further NOICC was issued in June 2023 by reference to s. 116(1)(g). The applicant provided his response to the second NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Relevant law
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).
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. It states:
Reg 2.43 Grounds for cancellation of visa (Act, s116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
(oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))
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?
The applicant provided to the Tribunal a copy of the primary decisions record. It indicates that the applicant had been convicted of the following offences

17/03/21

Critical risk breach – solo driver insufficient rest time

Fine $6000

23/03/23

Drive under influence

Fine $900

Driver license disqualification 6 months

In his response to the NOICC the applicant conceded that there are grounds for cancelling his visa.
The Tribunal finds that the applicant was a holder of a Subclass 485 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).
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
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
In his response to the NOICC the applicant states that he travelled to Australia on a Student visa and had completed studies here, before applying for the Skilled visa. He completed a Certificate III in Carpentry and a Diploma in Building and Construction and worked for approximately 19 months in carpentry during that period. He subsequently worked as a truck driver but intends to do carpentry work.
The applicant told the Tribunal that he has been living in Australia for a long time and has no future in his home country as he has done his study and work experience only in Australia and would not be able to secure any job in his home country. The applicant presented no evidence to support these assertions and the Tribunal is mindful that it is a requirement for the grant of a Student visa that the person is a genuine temporary entrant (that is, the applicant would have been required to establish his intention to return to India after completion of his Australian study). It is also significant that the visa in question is a temporary visa only and does not permit the applicant to remain in Australia permanently and the visa would have ceased in December 2024. The applicant’s claim that he cannot return to India is, in the Tribunal’s view, misguided because the applicant has no right to remain in Australia beyond December 2024 even if his visa is reinstated. The applicant told the Tribunal that upon the expiry of his visa, he might consider returning home if he has completed the Job Ready program or he may apply for another visa if he needs more work experience.
The applicant told the Tribunal that he is trying to ‘secure assets’ in Australia so that he would have enough funds to start his own business. He does not work at present as he has no work rights but in the past, he worked as a carpenter and will continue to work as a carpenter if his visa is reinstated. The applicant said that he had worked as a carpenter for nine months while studying and then he started working as a driver. He then worked as a carpenter for less than two months and lost his job due to the cancellation of his visa. The applicant told the Tribunal that it has been hard for him to find a carpenter job in a good company and he did not want to work as a subcontractor.
In his response to the NOICC the applicant refers to the work opportunities for carpenters and the importance of these skills to the building and construction. The applicant states that his skills are in need and of benefit to Australia. However, the Tribunal is mindful that despite the claimed availability of work, the applicant chose to do something that was entirely different and unrelated to his field of studies and to engage in the freight business. The Tribunal notes that the purpose of the Subclass 485 visa is to provide opportunities for furthering skills and employment to those who completed their studies in Australia. Despite completing his study in the carpentry and building and construction field, the applicant worked in that field for a very limited period of time (about nine months during his study and less than two months more recently). The applicant generally preferred to work in a different field that is unrelated to his field of study. In the Tribunal’s view, the fact that the applicant was not employed in an occupation relevant to his field of Australian study for the majority of the period when he was holding the Subclass 485 visa means, in the Tribunal’s view, that he was not fulfilling the purpose of his stay in Australia.
The applicant has not identified any compelling need for him to remain in Australia other than his desire to make money to start a business in India. The Tribunal is not satisfied there is a compelling need for the applicant to remain in Australia.
The extent of compliance with visa conditions
There is no evidence of non-compliance with visa conditions.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant states in his response to the NOICC that he has been living with his sister in Australia and if he is forced to leave as a result of his visa being cancelled, his sister will suffer as she will be deprived of a close sibling relationship and will struggle to maintain her payments. The Tribunal does not accept that evidence.
Firstly, as noted above, the visa in question is a temporary visa that would have been in effect until December 2024. The applicant does not have a permanent visa and does not have permission to remain in Australia permanently to support his sister emotionally and financially.
Secondly, the applicant’s evidence to the Tribunal is that he has not worked since the cancellation of his visa and that would suggest that he has not been able to provide financial support to his sister. The applicant has not provided any evidence to the Tribunal to indicate that his sister had experienced any financial hardship as a result.
Thirdly, the applicant failed to present any documentary evidence to indicate that prior to losing his job, the applicant had provided financial support to his sister. There is no evidence that his sister would ‘struggle to maintain her payments’ without his support. On the very limited evidence before it, the Tribunal does not accept the applicant’s assertions.
As for the sister being deprived of a sibling relationship, it is not apparent to the Tribunal why that would be the case and why the applicant believes such a relationship could only exist if he and his sister reside in the same country. The Tribunal is of the view that the applicant and his sister could maintain their relationship irrespective of the applicant’s country of residence.
The applicant told the Tribunal in oral evidence that if his visa is cancelled, he would experience emotional and psychological hardship. He states that he cannot ‘start his future’ otherwise. The applicant states that he is now staying away from drugs and understands that he has already been given a lot of chances and does not want to continue to act in the same way he acted in the past.
The Tribunal accepts that if the applicant’s visa is cancelled, he may be required to leave Australia and that would mean that he is not able to earn the funds he wanted to earn to support himself overseas. However, the applicant has not established that not being able to work in Australia would cause him financial hardship (as opposed to denying him the opportunity to earn as much as he would like).
As for emotional hardship, the applicant presented no evidence to support his claim and, as noted above, the Tribunal is of the view that such claims must be considered in light of the fact that the visa in question is a temporary visa that would only permit the applicant to remain in Australia until December 2024. It is not readily apparent to the Tribunal why the applicant would experience emotional hardship if he was required to leave Australia earlier than what his visa envisaged.
Circumstances in which ground of cancellation arose
The applicant described the circumstances leading to the convictions in his response to the NOICC. He also provided information in relation to the further offences set out below for which no convictions was recorded.
With respect to the first conviction, the applicant states that there were six counts of critical risk breach – solo driver insufficient rest time. The applicant suggests that the imposition of a fine indicates the low level of offending, that the conviction is relatively minor and does not suggest that he is a risk to the community.
In relation to the DUI offence, the applicant states that he received a relatively small fine and license suspension. The applicant states that this offending was relatively minor and he took steps to rehabilitate himself. The fact that his licence was suspended means that the risk of further reoffending is mitigated. (The Tribunal notes that this reasoning may only be applicable during the relatively short period of license suspension).
The applicant submits that he has been cooperative with the police and with the Department.
In his response to the second NOICC the applicant states that the offending arose primarily as a result of his drug addiction and likely would not have occurred if he was not suffering form a worsening drug addiction. The applicant stated that he has recognised the impact of his drug addiction and that he is undergoing court-mandated rehabilitation and drug counselling. He also intends to enter a drug and alcohol rehabilitation centre to avoid reoffending. The applicant states in his first NOICC response that he had told his family about the addiction and has sought help. He states that he fact that he is drug-free and has sold his truck (having no intention to engage in that type of work) reduces his risk of reoffending.
The applicant provided to the delegate and the Tribunal evidence of his participation in the rehabilitation program. The applicant states that he has sold the truck and does not intend to return to truck driving and will commence work in another field, so he will not commit the same type of offending. He has not used drugs and remains drug free. The applicant refers to finding employment relevant to his field of study and his compliance with court orders. He provided to the delegate and the Tribunal a number of payslips relating to his employment at Peuker & Alexander Pty Ltd. The applicant also provided to the Tribunal a letter from STAR program (Substance Treatment and Recovery) managed by Salvation Army which states that the applicant had attended three sessions so far and is working on his goals to detox. On 13 October 2023 the applicant provided to the Tribunal a number of character references and the Tribunal accepts that those who provided references believe the applicant to be of good character.
The applicant told the Tribunal that he made bad decisions in the past due to the influence of drugs. The applicant states that the primary reasons for the offending is drugs. He tried to quit many times but he could not but now he lives in home detention and has made many changes in himself and no longer uses drugs. The applicant states that he dd not offend before taking drugs and all of his offending was because of drugs and he was not able to make good decisions. He sincerely regrets what happened. He assured the Tribunal that if he is drug-free, he will not reoffend again. The applicant states that his parents came from India to support him and will stay in Australia for at least a year and he also lives with his sister who holds a Student visa and will live with him long-term. The applicant states that he is living in a changed environment and has no plans to take drugs again. The applicant states that he had moved states because he was not under the influence of drugs and did not appreciate what he was required to do.
The Tribunal acknowledges the applicant’s claim that he would not reoffend, given his abstinence from drugs and intention not to drive a truck. However information before the Tribunal indicates that in September 2023 – after the applicant’s visa was already cancelled and after he made the above undertakings in his response to the NOICC - the applicant had been charged with further offences relating to him driving while disqualified, contravening prohibition notice, drug driving and fatigue offences. (This information was put to the applicant pursuant to s. 359A of the Act.) It is recorded that the applicant also breached a prohibition notice issued to him on 24/01/2023 and he breached two community corrections orders where he was required to seek approval before leaving the state. Further, he pleaded guilty to a drug possession offence in March 2023, although no conviction was recorded.
The Tribunal acknowledges that the applicant had not been convicted of the September 2023 offences (he told the Tribunal he is still discussing his plea with the lawyer). However, the applicant seems to concede that he was in possession of a prohibited drug, that he was driving while disqualified and that he left the state contrary to the prohibition order because he was under influence. In these circumstances the Tribunal gives the applicant’s assurances given in response to the NOICC of being drug-free and compliance with the law no weight. Despite the applicant’s claims to the delegate that he would no longer drive while under influence and that his participation in rehabilitation programs means he would no longer take drugs, it appears that the applicant did engage in at least some such conduct. His doing so while he was already facing the cancelation of the visa (and recognising the significant repercussions of his conduct) suggests to the Tribunal that the applicant is unable to control his behaviour and ensure it is in accordance with the Australian law.
Past and present behaviour of the visa holder towards the department
The applicant claims he has been cooperative with the Department.
Whether there would be consequential cancellations under s 140
There are no persons whose visas would be subject to consequential cancellation.
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
If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he would have limited opportunities to make visa applications onshore due to the limitations imposed by s. 48. The applicant may also be subject to an exclusion period if he was to make an application offshore.
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
There is no evidence that any children would be affected by the cancellation of the applicant’s visa and the applicant’s evidence to the Tribunal is that there are no children who would be affected be the cancelation of his visa.
There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations or family unity principles arise in this case. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

The visa in question is a temporary visa.
Any other relevant matters
In his response to the NOICC the applicant suggests that the offending was at the low level, there was no violent offending and there are predominantly driving – related offences. The applicant refers to his remorse and steps he took to rehabilitate himself.
However, the information in the primary decision record suggests that the applicant may have had engaged in other criminal or antisocial conduct. The primary decision record indicates that in March 2023 the applicant pleaded guilty to stalking with intent to arouse apprehension / fear and possession of heroin. No conviction was recorded and the applicant was given a community corrections order for 18 months and was ordered to perform 100 hours of community work.
In his response to the NOICC the applicant stated that the circumstances arose when he tried to give his phone number to the victim and while his behaviour was unacceptable, it was not a deliberate attempt to cause fear or and there was no violent nature, so the offending was at the lower end of the spectrum as is evidenced by lack of conviction. The applicant states this was an isolated incident in which he exercised poor judgment and that he regrets his actions. The applicant suggested that the offending was at the low end of the spectrum, as evidenced by the fact that no conviction was recorded. The applicant states that he did not have an intention of stalking the victim. The Tribunal accepts that this maybe so but it cannot be said that the offending was predominantly driving – related.
The primary decision record also indicates that at the time the primary decision was made, there were outstanding charges in relation to the applicant, including
oReckless conduct endanger life
oDrive in a manner dangerous
oCommit indictable offence whilst on bail
oCareless driving on a motor vehicle
oDrive Heavy vehicle whilst impaired by fatigue
oFail to keep left of dividing lane
oPossess prescription drug
oPossess controlled drug
In his response to the NOICC the applicant stated that he intends to plead not guilty to the charges of reckless conduct endangering life but to plead guilty to the offences under the Road Safety Act. In oral evidence the applicant said that he is still communicating with his lawyer as to how he would plead in relation to some of the charges and he decided to plead not guilty to ‘reckless conduct endangering life’. He denies committing drug related offences. The applicant submits that these matters should be given little weight as the offences have not been proven.
With respect to drug possession, the applicant explains in his response to the NOICC and to the Tribunal that his Indian doctor sent him the drug after an online consultation and the drug was to assist the applicant with the withdrawal symptoms as a result of his previous addictions. He is now seeking treatment through the appropriate channels and the risk of recidivism is greatly reduced.
The Tribunal accepts that in the circumstances where the alleged offending conduct has not been proven, these matters should be given no weight against the applicant. However, as the applicant had indicated that he intends to plead guilty to some of these alleged offences, and concedes to the possession of an illegal drug, in the Tribunal’s view, these can be taken into consideration as evidence of the applicant’s disregard for the law. The Tribunal also has regard to the March 2023 offending in relation to which the applicant had been found guilty, albeit with no conviction recorded.
The applicant repeatedly refers to misunderstandings or his lack of intention to offend (such as in relation to the drug possession and the stalking offence). It is of considerable concern to the Tribunal if the applicant genuinely fails to recognise inappropriate behaviour or behaviour that is not considered appropriate under the Australian legal system and societal norms. The applicant also consistently states that his offending, in relation to each of the offences, was at the lower level, as is evidenced by the nature of the penalties imposed. The Tribunal accepts that this is so, but the Tribunal places significant weight on the repeated nature of offending. The applicant has been living in Australia for a relatively short period since May 2019 and over the years had been convicted of multiple offences. Even if these can be classified as being at the lower end of seriousness, the applicant’s repeated engagement in criminal conduct, and his repeated failure to recognise that his conduct is inappropriate, does not support the applicant’s contention that the risk of reoffending has been greatly reduced.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa as the applicant was the holder of a temporary visa and had been convicted of offences. The Tribunal is prepared to accept that some hardship may be caused by the cancellation, primarily because the applicant intended to work in Australia and earn more money and he would be precluded from doing so if he is required to leave Australia as a result of his visa being cancelled. However, the Tribunal does not consider that the cancellation would cause significant hardship to the applicant. The Tribunal has rejected the applicant’s evidence that there would be emotional hardship to him or his sister or that his sister would experience financial hardship as a result of the cancellation of his visa. The cancellation would not be in breach of Australia’s international law.
The Tribunal acknowledges the applicant’s evidence that his offending was caused by drugs and that he has now taken steps to become drug free. The Tribunal acknowledges that the applicant had taken part in various rehabilitation programs and his undertaking not to use drugs and not to reoffend. However, the Tribunal does not finds that undertaking persuasive, given that despite the initial convictions and the applicant’s awareness of the possibility that his visa might be cancelled, the applicant continued to reoffend. The Tribunal is not satisfied the applicant had fully rehabilitated.
The Tribunal has also formed the view that there is no compelling need for the applicant to remain in Australia.
In circumstances of this case, the Tribunal has decided to give greatest weight to the circumstances in which the offending occurred and other considerations, namely his repeated offending. The Tribunal gives weight to the fact that the offending continued despite the applicant’s undertaking to be drug-free and despite being aware of the serious consequences of his conduct.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Kira Raif
Senior Member

[2023] AATA 3663

13 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction