Gurpreet Singh (Migration)

[2024] AATA 182

Gurpreet Singh (Migration) [2024] AATA 182 (1 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  2202008

HOME AFFAIRS REFERENCE(S):          BCC2021/1546180

MEMBER:Michael Ison

DATE:1 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 01 February 2024 at 12:26pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with application for student visa, now refused – criminal convictions – community correction orders, including unpaid community work, treatment and rehabilitation – migration and procedural history – arrived as dependent of wife, now divorced, before applying in own right – period as unlawful non-citizen – confusion between student and bridging decisions and reviews, and lack of documentation – no current information provided and loss of right to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359A, 362A
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 24 January 2022 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).

   Background

2. The applicant in this review is Mr Gurpreet Singh, who is a 34-year-old Indian national.  Mr Gurpreet Singh is referred to as the applicant in these reasons for decision. The applicant’s immigration history in Australia may be summarised as follows.   

3. The applicant first arrived in Australia on 26 July 2016 as the holder of a Student (Class TU) (Subclass 573) visa, as a dependent of his ex-wife Ms Jaspreet Kaur. The applicant’s Student visa was valid to 30 August 2018 and had conditions 8104 (work restriction), 8501 (maintain health insurance) and 8516 (continue to satisfy secondary criteria) from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations) attached.

4. The applicant has not departed Australia since his arrival on 26 July 2016.

5. On 28 August 2018 the applicant applied for a Skilled (Provisional) (Class VC) (Subclass 485) visa, as a dependent of Ms Kaur. At that time, the applicant was granted a Bridging A (Subclass 010) visa pending the resolution of his Graduate visa application. The applicant’s Bridging A visa had condition 8501 (maintain health insurance) from Schedule 8 to the Regulations attached.

6. On 5 November 2018 the applicant was granted the Graduate (Subclass 485) visa which was valid to 5 November 2020.

7. On 5 November 2020 the applicant applied for a Student visa as the primary visa applicant. That application was refused on 21 January 2022.  The applicant did not apply to the Tribunal for the Tribunal to review that visa refusal.

8. When the applicant applied for his Student visa, he was granted a second Bridging A visa pending the resolution of his Student visa application. The applicant’s second Bridging A visa did not have any conditions from Schedule 8 to the Regulations attached.

9. On 24 January 2022 the applicant’s second Bridging A visa was cancelled under s 116(1)(g) and reg 2.43(1)(oa). It is the cancellation of the applicant’s second Bridging A visa that is the subject of this review.

10. The applicant has not held a visa since his second Bridging A visa was cancelled on 24 January 2022 and therefore has been an unlawful non-citizen in Australia since that time.

    Applicant failed to attend the Tribunal hearing on 12 October 2023

11. By letter dated 6 September 2023 the Tribunal invited the applicant to appear before it to give evidence and present arguments on 12 October 2023.

12. The applicant did not appear before the Tribunal at the designated time and place.

13. On 12 October 2023 after the applicant’s non-appearance, the Tribunal dismissed the applicant’s application for review with a right for the applicant to request reinstatement.

14. On 13 and 16 October 2023 the applicant contacted the Tribunal to say he had lost his mobile telephone between 8 and 11 October 2023 on a trip to Western Australia, had obtained a new phone restoring his text messages but is no longer able to access his emails and was concerned he missed his Tribunal hearing. The applicant updated his contact details and orally requested reinstatement of his review.

15. The Tribunal officer who spoke to the applicant on 16 October 2023 sent the applicant a copy of the Tribunal’s hearing invitation, non-appearance decision and decision to dismiss the application for review to the applicant’s new email address. The applicant confirmed receipt of those documents during the telephone conversation.

16. On 27 October 2023 the Tribunal formally reinstated the applicant’s application for review.

    Appointment of a representative

17. On 8 November 2023 the Tribunal was informed in writing that registered migration agent, Mrs Pratibha Sharma of Honest Immigrations, had been appointed as the applicant’s representative and authorised recipient for communications from the Tribunal. Mrs Sharma is referred to as the applicant’s representative or the representative in these reasons for decision.

    Tribunal hearing held on 28 November 2023

18. By letter dated 8 November 2023 the Tribunal invited the applicant to appear before it on 28 November 2023, in-person. After the applicant informed the Tribunal he was still in Western Australia this hearing invitation was changed to a video hearing at the request of the applicant.

19. The applicant and the representative appeared before the Tribunal on 28 November 2023 by video.

20. At the commencement of the hearing the applicant told the Tribunal he had not received any correspondence from the Department in relation to his Bridging A (Subclass 010) visa but had received correspondence in relation to his application for a Student visa. The applicant told the Tribunal that he thought the Tribunal hearing related to his Student visa, not the cancellation of his Bridging A visa and he was not ready to have a Tribunal hearing about the cancellation of his Bridging A visa.

21. The applicant explained in some detail his dealings with a previous migration agent about his application for a Student visa, his application for review to the Tribunal and inability to get any documents from his previous migration agent.

22. The representative confirmed that without a copy of the Tribunal’s hearing invitation and the applicant’s documents from his previous migration agent she thought the Tribunal hearing was about the applicant’s application for a Student visa and she was not in a position to represent the applicant about the cancellation of his Bridging A visa. The representative indicated to the Tribunal she would promptly apply after the hearing for a copy of the Tribunal and Department file in relation to the cancellation of the applicant’s Bridging A visa under s 362A of the Act.

23. The Tribunal adjourned the Tribunal hearing to a date and time to be fixed.

    The primary decision of a delegate of the Minister

24. The applicant did not provide the Tribunal with a copy of the primary decision.

25. The delegate cancelled the visa under s 116(1)(g) of the Act on the basis that on 8 January 2021 the applicant was convicted of 27 criminal charges in the Magistrates’ Court of Victoria at Moorabbin and then on 21 September 2021 the applicant was convicted of five criminal charges in the Magistrates’ Court of Victoria at Sunshine. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Section 359A letter sent to the applicant

26. During the Tribunal hearing held on 28 November 2023 the Tribunal informed the applicant and his representative that the Department file included the primary decision. The Tribunal indicated it would write to the applicant after the hearing in accordance with the procedure set out in s 359A of the Act and provide the applicant with a copy of the primary decision. The Tribunal informed the applicant he would lose his right to appear before the Tribunal if he did not respond to the letter within the time allowed.

27. The representative requested that the Tribunal allow the applicant three weeks, rather than the usual two weeks, to respond to the proposed s 359A letter. The Tribunal agreed to this request.

28. On 29 November 2023 the Tribunal wrote to the applicant in accordance with the procedure set out in s 359A of the Act. The Tribunal informed the applicant in its s 359A letter that information in the primary decision would be the reason or a part of the reason for the Tribunal to affirm the decision under review.

29. This information included details of the applicant’s criminal record in Australia, information about key discretionary considerations that the delegate of the Minister who made the primary decision decided supported the cancellation of the applicant’s visa and also information about the applicant’s study record as an international student in Australia. The Tribunal provided a copy of the primary decision, a copy of the applicant’s Australian Criminal Intelligence Commission check results report setting out his criminal history in Australia as at 23 November 2021 and a copy of a search of his records as an international student undertaken on 24 January 2022.

30. The Tribunal’s letter explained in considerable detail the relevance of each item of information in the above documents to the applicant’s review and the consequences for his review if the Tribunal relied upon each item of that information.

31. The Tribunal’s letter requested the applicant to give comments or respond to the information in the Tribunal’s letter in writing within three weeks, being by 20 December 2023, with a right to seek an extension of time, failing which he would lose his right to appear before the Tribunal to give evidence and present arguments.

32. The applicant did not respond to the Tribunal’s letter dated 29 November 2023.

    Withdrawal of representative

33. On 27 December 2023 the representative emailed the Tribunal that she would no longer be representing the applicant.

34. On 2 January 2024 the Tribunal wrote to the applicant requesting his advice whether he wanted all documents now to be sent to him directly by completing the relevant Tribunal form confirming same. The applicant did not respond to the Tribunal’s letter. This letter was sent to the representative and copied to the applicant directly.

35. On 12 January 2024 the Tribunal wrote to the applicant to confirm he had lost his right to appear before the Tribunal to give evidence and present arguments. The letter confirmed that the Tribunal would consider any information provided by or on behalf of the applicant prior to the Tribunal making a decision on his review. This letter was sent to the representative and copied to the applicant directly.

36. As at the date of this decision, the applicant has not responded to the Tribunal’s letters dated 29 November 2023, 2 January 2024 and 12 January 2024.

    Submissions from the applicant  

37. The Tribunal received a four-page submission dated 19 November 2023 from the applicant’s representative, but this submission was in relation to the applicant’s application for a Student visa and did not address the ground for cancellation of his Bridging A visa or the discretionary considerations if a ground for cancellation is found. The Tribunal has considered this submission in so far as it details the applicant’s personal circumstances in Australia.

    Tribunal decision

38. The Tribunal has had regard to all of the information provided to the Tribunal and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal.  The Department file included a copy of the Notice of Intention to Consider Cancellation of a visa (NOICC) sent by the Department to the applicant by registered mail on 15 December 2021 and the primary decision made on 24 January 2022.

39. 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

40. 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

41. 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 reg 2.43. In the present case, the ground in reg 2.43(1)(oa) is relevant.

42. Regulation 2.43(1)(oa) provides:

    (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 the following:

    …

    (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));

43. The primary decision records the applicant was convicted of the following offences:

    8 January 2021

    ·Theft (12 charges);

    ·Attempt to commit indictable offence (four charges);

    ·Attempt to commit indictable offence whilst on bail (nine charges);

    ·Theft from shop; and

    ·Possess drug of dependence (not named).

    21 September 2021

    ·Theft from shop (two charges);

    ·Theft;

    ·Commit indictable offence whilst on bail;

    ·Contravene Community Corrections Order; and

    ·Possess heroin.

44. A 12-month Community Correction Order was imposed on the applicant as a result of the 8 January 2021 convictions, the conditions of which included that the applicant must perform 70 hours of unpaid community work at least 25 hours of which were to be undertaken for treatment and rehabilitation.

45. A second 12-month Community Correction Order was imposed on the applicant as a result of the 21 September 2021 convictions, the conditions of which were identical to his first Community Corrections Order.

46. There is no information before the Tribunal to suggest that the applicant has or intends to appeal any of his convictions or appeal his sentences.

47. 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

48. 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 Procedural Instructions. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

49. The applicant did not respond to the NOICC.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

50. The purpose of the applicant’s original travel to and stay in Australia was to accompany his then wife, Ms Kaur, as she studied in Australia. The primary decision records that the applicant’s relationship with Ms Kaur ended in divorce in 2020.

51. The applicant applied for a Student visa as the primary applicant in November 2020, with sequential enrolments in a Certificate III, Certificate IV and Diploma of automotive studies. The applicant’s application for a Student visa was refused in January 2022 because the Department found the applicant’s –

    … Provider Registration and International Student Management System (PRISMS) records indicate that the enrolments for the abovementioned courses were cancelled on 10 March 2021. Since then, the visa holder has not obtained a valid enrolment in a course of study.

52. In short, the applicant has not undertaken or completed any study in Australia since applying for a Student visa as the primary applicant in November 2021.

53. In the submission to the Tribunal dated 19 November 2023 the applicant’s then representative submitted the applicant has been exposed to or the victim of a series of unexpected events which have prevented him from studying, as follows (errors and abbreviations in the original):

    On behalf of our client, we request to consider his circumstances which were unforeseen and beyond his control. He genuinely wanted to upgrade his skills but due to the circumstances such as unexpected divorce, migration fraud by previous agent, car accident, allegation of stealing a car-by-car rentals, theft in his own house and his stolen phone he could not think straight and started losing track of day today activities. On top of all when he was trying to enroll in a college in automotive courses, the college asked for his current visa but when he tried to download his visa grant letter from VEVO, he found out due to technical issues his bridging visa status is not showing in VEVO. Since then, he is in contact with the department after complaining about the technical error as shown on VEVO but nothing has been done by the department yet and without his current visa letter he could not be enrolled by any education provider.

    …

    On behalf of our client, we state that he has lost all the paper work to prove his claims of the incidents happening with him. After losing all the important documents He vaguely remembers the time but does not remember the accurate dates and months. Our client apologizes for the inconvenience accrued to the Administrative Appeal Tribunal and thankful from the bottom of his heart for re-arranging the hearing for him.

54. The Tribunal finds that as the applicant and his ex-wife divorced over two years ago the applicant’s original purpose for travelling to and staying in Australia no longer subsists.

55. The Tribunal also finds that the applicant’s desire to be granted a Student visa in his own right to study in Australia does not amount to a compelling reason for the applicant to stay in Australia. A Student visa is a temporary visa only and does not grant the right to ongoing or permanent residence in Australia.

56. The Tribunal finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

    The extent of the applicant’s compliance with their visa conditions

57. The Tribunal notes the applicant has held the following dependant visas with the relevant conditions that were attached from Schedule 8 to the Regulations noted:

    Student (Subclass 573) visa

    ·8104 - work restriction;

    ·8501 - maintain health insurance; and

    ·8516 - continue to satisfy secondary criteria;

    Bridging A visa

    ·8501 - maintain health insurance;

    Graduate (Subclass 485) visa

    ·8501 - maintain health insurance.

58. There is no information before the Tribunal to indicate that the applicant has breached a condition of any visa he has held.

59. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

60. There is no information before the Tribunal about whether cancellation of the applicant’s Bridging A visa will cause him or anyone else any hardship.

1. However, the information before the Tribunal is that the applicant has resided in Australia since 26 July 2016 and has not departed Australia since that time. The Tribunal accepts that having lived in Australia for over seven and a half years the applicant is likely to have established ties to the Australian community and cancellation of his visa would mean a loss of his right to work and reside in Australia.

2. In those circumstances the Tribunal finds that cancellation of the applicant’s visa would cause him some personal, financial and social hardship.

3. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa, but given the lack of information before the Tribunal about the effect cancellation of his Bridging A visa will have on the applicant, the Tribunal only gives this consideration some weight.

   The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

4. The circumstances in which the ground for cancellation arose are that in 2021 the applicant was convicted of 33 separate criminal offences as a result of which two Community Corrections Orders have been imposed upon him.

5. As the applicant has not responded to the NOICC, has not responded to the Tribunal’s s 359A letter dated 29 November 2023 and has not provided any information to the Tribunal after it confirmed his loss of hearing right on 12 January 2024, the Tribunal is unable to find that there were any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation arising.

6. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.

   The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

7. The visa holder did not respond to the NOICC which was sent by registered mail to his last known address in Craigieburn, Victoria, Australia. The Department’s file indicates the NOICC was ‘returned to sender’.

8. The address the applicant provided to the Tribunal is in St Albans, Victoria.

9. This indicates to the Tribunal that the applicant did not keep the Department informed of his current address.

10. The Tribunal also notes that since the cancellation of the applicant’s second Bridging A visa he has not held any visa. At the date of this decision this means the applicant has been an unlawful non-citizen in Australia for approximately 737 days or just over two years without making any effort known to the Tribunal to contact the Department to regularise his immigration status in Australia.

11. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

12. There is no information before the Tribunal to indicate that the applicant has any dependent family members whose visas may be cancelled if his visa is cancelled.

13. The Tribunal finds that this consideration is neutral and weighs neither in support of or against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

14. The delegate in the primary decision noted in relation to this consideration:

    If the visa is cancelled, the visa holder will become an unlawful non-citizen and may be liable for detention under section 189 and removal under section 198 of the Act if he does not voluntarily depart Australia. The visa holder would also be affected by section 48 of the Act, which would cause him to have limited options if applying for further visas while in Australia and Public Interest Criterion 4013, which may prevent him from being granted particular temporary visas for a specific period. However, he might be eligible to apply for a Bridging E visa, which may allow him to stay lawfully in Australia whilst making departure arrangements.

15. There is no information before the Tribunal that indefinite detention of the applicant is a possible consequence of the cancellation of his visa. However, the Tribunal accepts that cancellation of the applicant’s visa means he would remain at risk of being detained in immigration detention and removed from Australia if he did not depart voluntarily. The Tribunal also accepts that cancellation of the applicant’s visa would mean that he would be subject to s 48 of the Act limiting the visas he can apply for while he remains in Australia and also to Public Interest Criterion 4013 limiting his ability to be granted a visa to return to Australia for a period of time, currently three years.

16. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

17. There is no information before the Tribunal to indicate that the applicant has any children or that there is any reason why he cannot return to India.

18. Based on the information before the Tribunal, the Tribunal finds that cancellation of the applicant’s visa would not breach any of Australia’s obligations under international agreements – including non-refoulement obligations.

19. The Tribunal also finds that Australia’s obligations under international agreements to not arbitrarily separate family members and to act in the best interests of any children of the applicant are not relevant in the applicant’s circumstances.

20. The Tribunal finds that this consideration is neutral and weighs neither in support of or against the cancellation of the applicant’s visa.

    If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

21. At the time of this decision the applicant does not hold a visa. The applicant has previously held a Student visa, a Graduate visa and two Bridging A visas, all of which are temporary visas.

22. The Tribunal finds that this consideration is neutral and weighs neither in support of or against the cancellation of the applicant’s visa.

    Any other relevant matter

23. The applicant did not bring any other relevant matters to the attention of the Tribunal.

24. The Tribunal finds that this consideration is neutral and weighs neither in support of or against the cancellation of the applicant’s visa.

    Conclusion

25. The Tribunal finds that the discretionary considerations that weigh in support of the cancellation of the applicant’s visa outweigh those discretionary considerations that weigh against the cancellation of the applicant’s visa.

26. Considering the applicant’s circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Michael Ison
    Senior Member