Handa (Migration)

[2022] AATA 537

Handa (Migration) [2022] AATA 537 (25 February 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Handa

CASE NUMBER:  2108557

HOME AFFAIRS REFERENCE(S):          BCC2021/342638

MEMBER:Brendan Darcy

DATE:25 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 25 February 2022 at 12:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – applicant convicted of an offence – applicant paying off outstanding business debts – harassment from loan sharks – genuine temporary entrant – financial hardship – emotional hardship – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 362
Migration Regulations 1994, r 2.43

CASES

Wan v MIMA (2001) 107 FCR 133    

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 June 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 the prescribed grounds as defined in reg 2.43(1)(oa) had been breached. 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 first appeared before the Tribunal on 15 September 2021 to give evidence and present arguments. This hearing was adjourned on due to poor audio-visual communications.

4. A resumed hearing was held on 20 October 2021. This was also adjourned to provide the applicant sufficient time to access the Departmental file (BCC2021342638) through an ongoing Freedom of Information (FoI) request.

5. A further hearing was resumed and completed on 20 January 2022.

6. Each of the hearings was conducted via an internet-enabled audio-visual platform (MS Teams). The applicant was represented in relation to the review by a legal practitioner, however, the legal practitioner attended the first two hearings but not the third. (At the beginning of the third hearing, the applicant said his representative had not been engaged to attend.)

7. 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

8. 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?

   Section 116(1)(g) - prescribed ground

9. 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 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

10. The subregulation relevantly states:

    2.43(1)(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));…

    Background

11. The applicant, a male, is an Indian national who was born on 21 September 1984.

12. On 5 July 2019, the applicant arrived in Australia for the first time while holding a visitor visa. While holding this visitor visa in Australia, he applied for a Class TU student visa. The applicant claimed to be married at the time and that he and his then spouse, Shaveta Handa, have one daughter, Avirat Handa.

13. The applicant was granted a Class TU Subclass 500 visa on 30 August 2019 with the expiry date of 3 December 2021. In September 2019, the applicant commenced coursework in commercial cookery at Macallan College.

14. On 9 March 2021, the applicant was validly issued with a Notice of Intention to Consider Cancellation (NOICC). The NOICC stated the following about the grounds for cancelation:

    The Department has received information from the relevant authorities that you have been convicted of the following offence in Australia:

    Court: Perth Magistrates Court

    Date: 4 December 2020

    Offence: Stealing (6 offences)

    Result: Intensive Supervision Order: 9 months, concurrent from 4 December 2020.

    From the above information it appears grounds exist to cancel the visa holder’s visa under section 116(1)(g) of the Act because the prescribed ground for cancellation at Regulation 2.43(1)(oa) applies to his circumstances, as he holds a temporary visa other than a subclass 050, 051 or 444 visa and have been convicted of an offence against a law of the Commonwealth, State or Territory

15. The applicant was invited to comment in writing by 22 March 2021.

16. On 22 March 2021, a legal practitioner from Tang Law replied by email to the NOICC, attaching a written submission, which the visa holder signed on 22 March 2021, declaring that it accurately and completely represented his claims to the Department.

17. The NOICC response confirmed that the applicant was convicted of the offences put to him in the NOICC. It relevantly stated:

    On 20 November 2020, the Visa holder appeared before the Perth Magistrates Court and was convicted which constitutes the ground for cancellation set out in regulation 2.43(1)(oa) of the Regulations …

    The Visa holder was sentenced to six ISOs [Intensive Supervision Orders] with a term of nine months commencing from 4 December 2020.

18. As there was no information to the contrary, the delegate proceeded to make a finding that there were grounds for cancellation under s 116(1)(g) of the Act in his decision to cancel the then visa holder’s student visa on 29 June 2021.

19. The applicant then applied to have the delegate’s cancellation decision reviewed on 30 June 2021. Attached to the application for review were copies of the notification letter and the delegate’s written reasons for the cancellation decision (decision record).

20. On 8 July 2021, the Tribunal received a non-disclosure certificate dated 8 July 2021 stating that, in accordance with s 375A of the Act, a number of documents on the applicant’s Departmental file could not be released as it would be contrary to the public interest.

21. On 15 September 2021, the Tribunal wrote to the applicant about this non-disclosure certificate. It stated that the Tribunal was not satisfied the certificate have been validly issued:

    The Tribunal is not satisfied that the information covered by the certificate appears to be one of public interest immunity in the sense that it could not find any harm should it be released to the nation or the public service by the disclosure of the material. It is not satisfied that it would damage relations between the Commonwealth and a State or between two or more States, or prejudice the prevention, investigation or prosecution of an offence or anything else relevant to doing harm to the nation or public service as guided by the Commonwealth’s Evidence Act 1995 when provided a document relating to matters of the state.

    At this point in time, the Tribunal found no material relevancy in the information in assessing whether the grounds for cancelling the applicant’s student visa has been made out or towards the discretionary considerations to have the applicant's visa reinstated.

22. A copy of the certificate and copies of the documents with names and other personal particulars redacted were attached to the letter. (The Tribunal is satisfied the non-disclosure had not been validly issued and that the applicant had been provided with a fair opportunity to address any of the information put to him in writing.)

23. During the first hearing on 15 September 2021, the Tribunal commented that it appeared the grounds for cancellation existed on the basis of six convictions resulting in an intensive supervision order for nine months, not least because the applicant provided a statement acknowledging he had a conviction for breaching laws in Western Australian, and asked whether the applicant had any comment. The applicant responded that he could not comment because his previous representation had not provided him or his current representative with a copy of file and he had an FoI request under s 362A of the Act to access his Departmental file which had not been fully processed. The Tribunal pointed out to the applicant that his FoI request lodged on 4 September 2021 had been for the Tribunal’s file and he had not included a request for the Departmental file. (The Tribunal provided complete access to the file on 9 September 2021 (Folios1-72).) The Tribunal provided the applicant an adjournment to the hearing to address this.

24. At the second hearing on 20 October 2021, the applicant requested a further adjournment on the basis that he had not been provided access to his Departmental file since recently lodging a FoI request specifically to access this.

25. According to the correspondence between the Tribunal and the Department, the applicant had lodged an FoI request with the Department on 9 October 2021, and the applicant received a ‘Notification of Intention to Refuse Access Request’ on 14 October 2021. On 4 November 2021, the Department finalised the FoI request, deeming it withdrawn, as the applicant did not respond to ‘the Notice of Intention to Refuse’.

26. During the third hearing on 20 January 2022, the applicant raised the issue of a lack of access to his Departmental file. The Tribunal pointed out that the applicant had a fair opportunity to access these folios and that the applicant had not responded to the notice of the intention to refuse. The Tribunal stated it was going to proceed with the hearing.

27. The Tribunal noted the applicant had not provided comment regarding the information put to the applicant in writing on 15 September 2021. The applicant, who had many months to reflect on the material, initially stated that his representative had not shown him the information. The Tribunal pointed out that information had been provided to the applicant in accordance with the statutory requirements and there was an onus on him to make himself aware of it, given the information had been raised in the initial hearing. The applicant then stated that he did not have any comments.

28. The Tribunal then sought comment as to whether the applicant had breached six Western Australian laws which would make up the grounds for cancellation pursuant to s 116(1)(g) of the Act because the prescribed ground for cancellation at reg 2.43(1)(oa) applies to his circumstances.

29. The applicant admitted he had and that he had pleaded guilty to six offences of stealing while employed with a freight distributor, StarTrack, that he repaid the full amount of the required reparation and that he was sentenced to six concurrent intensive supervision orders over nine months which he has completed.

30. At the end of the hearing, the applicant was provided with a post hearing opportunity to submit further relevant documents or submissions. The non-disclosure certificate and information provided to him on 15 September 2021 were forwarded to the applicant so he could provide any comment.

31. In a post hearing submission received by the Tribunal on 11 February 2022, the applicant did not state the grounds for cancellation did not exist. He provided an email with evidence that the applicant had recompensed Australia Post and attached a certified copy of an Indian court order dated 2 September 2021 and associated documents in relation to his divorce from his former spouse.

32. The Tribunal notes there is a criminal history check dated 1 February 2021 is on the departmental file. It issued by the Criminal Intelligence Commission indicating the applicant had been convicted of six charges of stealing under Western Australia’s criminal code.

33. With no evidence to the contrary, the Tribunal finds the grounds exist to cancel the visa holder’s visa under s 116(1)(g) of the Act because the prescribed ground for cancellation at reg 2.43(1)(oa) applies to his circumstances, as he holds a temporary visa other than a Subclass 050, 051 or 444 visa and has been convicted of an offence against a law of the Commonwealth, State or Territory.

34. 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

35. 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

36. The Tribunal notes the applicant arrived in Australia on a visitor visa on 5 July 2019 and subsequently applied for a student visa, which was granted on 30 August 2019.

37. According to a PRISMS (Provider Registration and International Student Management System) document on the Departmental file, the applicant had initially enrolled in full-time studies with an education provider, Macallan College, to complete coursework for a certificate IV in commercial cookery and the applicant later enrolled in a Certificate III, a Certificate IV and a Diploma of Hospitality Management at another education provider, Lead College. 

38. The information before the Tribunal is that the applicant completed a Certificate III with Lead College and that he commenced the enrolled Certificate IV. Soon thereafter, the applicant’s visa was cancelled. The Tribunal accepts the applicant achieved steady academic progress. The Tribunal places notable weight on these aspects of the applicant’s academic progress in favour of the visa not remaining cancelled.

39. However, during the hearing, the applicant elaborated on his written claims which indicated the purpose of the applicant’s travel to Australia was to address the outstanding debts the applicant had accumulated prior to coming to Australia.

40. Prior to coming to Australia, the applicant had begun but did not complete a bachelor’s degrees in arts/humanities. He claimed he was required to work for his family as his father’s and his uncle’s garment business was struggling. The applicant claimed he came to Australia in 2019 for study. He further elaborated that he had acquired a substantial amount of debt owing to his uncle and to three loan sharks.

41. The Tribunal notes that the delegate did not accept the applicant’s claimed circumstances around his past employment history and debts back in India. However, the Tribunal has provided the applicant the benefit of the doubt.

42. As claimed by the applicant, the Tribunal accepts the applicant ran his own unregistered marketing business separate from the family business and that it ran on credit sales. It accepts the marketing business struggled in 2017 because the applicant made a large order for garments and that customer paid a 50 per cent deposit but later disappeared when the applicant sought the remaining 50 per cent of the purchase price. In relation to this, it accepts the financial loss amounted to AUD80,000.

43. It further accepts the applicant, in early 2018, borrowed around AUD15,000 from three loan sharks and that he borrowed around AUD12,000 from his uncle to cover some of the costs involved in the unpaid purchase order. It accepts the loan sharks harassed him and his family due to late payments, that his wife and child moved to his in-laws’ residence due to this harassment in late December 2019 and that the primary reason the applicant departed India was to repay these outstanding debts.

44. The applicant provided statements from his wife and his father-in-law, a retired policeman, supporting these claims about owing money to dangerous people. It accepts them as a supportive statement carrying a credible weight of authenticity.

45. On the Departmental file is a copy of the applicant’s ‘Genuine Temporary Entrant’ (GTE) statement. Nowhere in that statement is there any mention that the applicant travelled to Australia to repay debts to his uncle, or loan sharks, or even the difficulties he experienced in his family and business.  Instead, the statement outlines the applicant’s plan to return to India to open a restaurant with his wife.

46. Based on the applicant’s own admission, the content of the GTE statement attached to his student visa applicant was not true. The Tribunal finds that the GTE statement was a misleading statement with incorrect and embellished information, designed to deceive the Department into granting him a student visa. It follows from this that the applicant applied for a student visa not to complete a set of coursework to acquire qualifications and experience to return to India with, but to work in Australia to repay debts for as long as he could. Given the Tribunal accepts he and his family were harassed, this deceptive behaviour was understandable. Based on this finding and his long history of working in the Indian garment industry, the Tribunal does not accept the applicant is genuinely interested in a career in commercial cookery.

47. At the hearing, the applicant was asked if he had paid down all his debts to the loan sharks, to which he responded ‘yes’. Given this, and accepting that paying these debts to loan sharks threatening his family had been the most compelling reason for his travel to Australia, then it follows that the most compelling reason no longer exists at the time of making this decision. 

48. The Tribunal notes the applicant also said that he had an outstanding debt of about AUD2,000 to his uncle in the family garment industry. Given this is not a significant amount, the Tribunal finds this is not a compelling reason for this visa to be reinstated.

49. The Tribunal enquired into whether the applicant had repaid Australia Post for the value of computer equipment he stole. The applicant said he had but he had borrowed money from his parents and his brother. He added he still owed his brother around AUD8,000. Given this is not a large amount of money, the Tribunal finds this is not a compelling reason to remain in Australia or for the visa to be reinstated.

50. The applicant advanced his debt of around AUD50,000 to his wife as a compelling reason to remain in Australia. The amount owing was for the dowry to be returned to the applicant’s wife after their divorce. However, a court order (which was made prior to the last hearing) indicates that his marriage was dissolved in September 2021 – considerably earlier than the last hearing – and he will not have any custody or visitation rights in relation to his child. It further states that any repayment by the applicant of any dowry or alimony or child support to the other parties has been forgone. This significantly undermined this oral claim outlined at the hearing and further invited credibility concerns about aspects of the applicant’s claims to have this visa reinstated. The court document clearly states the applicant will not owe his ex-spouse restitution for the divorce or that he had any legal obligations to provide material support for his child back in India. As a result, the Tribunal finds there are no compelling reasons for the applicant to have this visa reinstated.

1. The Tribunal has also considered whether the applicant wished to move to Australia on a permanent basis. He said he wanted a bright future arising from completing his studies. Given the applicant’s family remained in India, the Tribunal has given the applicant the benefit of the doubt and accepts his initial motivation in travelling to Australia to remain in Australia temporarily. Should this visa be reinstated, the applicant is likely to resume full-time studies in the same or similar or even a different course in commercial cookery and to complete it.  In this regard, the Tribunal places some weight on the applicant being a genuine student in Australia on a temporary basis and not having the visa remain cancelled.

2. Notwithstanding this, the Tribunal places considerable weight on the applicant providing incorrect information in his GTE statement and in misrepresenting monies he owed to his ex-wife in favour of the visa not being reinstated. The applicant did not honestly reflect the genuine reasons he travelled to Australia at the time of application. The purpose of his student visa was to pay down debts owing to family members and illicit money lenders. The applicant has claimed that he has some compelling reasons to remain in Australia, but he no longer has outstanding debts to loan sharks and the amount owing to family members is manageable and not great. Overall, the Tribunal places very little weight on the applicant’s compelling reasons to have his cancelled student visa reinstated. 

   The extent of compliance with visa conditions

3. According to the decision record, the applicant’s visitor visa had conditions 8101 and 8201 attached, while his student visa had conditions 8105, 8202, 8501, 8516, 8517, 8532 and 8533 attached.

4. There is no evidence before the Tribunal that he had been non-compliant with the conditions imposed on him as a previous holder of a visitor visa.

5. During the hearing, the Tribunal enquired if the applicant had breached the work limitation condition requiring the applicant to work 40 hours a fortnight. The Tribunal notes the applicant said he had not. He partially attributed his stealing to his compliance with the work limitation condition. There is no evidence before the Tribunal that the applicant had breached any of the conditions imposed on his cancelled student visa.

6. The Tribunal places some weight on the applicant’s compliance with these conditions in favour of the visa not remaining cancelled.

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

   Degree of financial hardship

7. The applicant has provided a written NOICC response stating that his wife has been unemployed for years and he is unlikely to be employed in the near future. Should the visa be cancelled, the applicant, as the primary breadwinner, will experience a high degree of hardship.

8. During the hearing, the applicant explained that he was now divorced and that his wife has custody of his child while he had to pay maintenance for his child. He could not explain to the Tribunal how much he would owe but surmised schools were expensive.  At the end of the hearing, the Tribunal requested that the applicant provide a copy of the court order relating to his divorce. As previously outlined, the applicant submitted a copy of the court order as requested. The court order, dated 2 September 2021, states that: the marriage has been dissolved; the applicant will not have any custody or visitation rights of his child; and that the parties have forgone repayment of any dowry and any future requirement for alimony or child support. The applicant’s father represented the applicant in reaching this agreement as outlined in the court order. Based on this court order, the Tribunal does not accept the applicant will have any financial responsibilities towards his child that are enforceable by Indian law or that he will be the primary bread winner of his immediate family. Should this visa remain cancelled, the Tribunal finds the degree of financial hardship arising from the legal and familial burden of supporting dependants to be negligible, at best.

9. The applicant has also provided an explanation that he owes money to loan sharks and family members. As outlined above, the applicant has admitted to having no outstanding debts to loan sharks in India and a manageable debt owing to family members. The Tribunal does not accept the applicant has any significant hardship arising from these circumstances if his visa is not restored.

10. As part of his NOICC response, the applicant has also stated he intends to return to India to run a restaurant of his own. Should his visa remain cancelled, the applicant claims the studies he has undertaken in Australia will be futile and this would put the future of his family on hold. During the hearing, the Tribunal asked if he could resume studies in India or any other jurisdiction, such as the United Kingdom, as an international student. The applicant said he would not be able to afford tuition fees or a student loan.

11. However, the details of the applicant’s divorce mean that the applicant has no legal dependents to burden him if he returns to India to find remunerative work and/or resume studies by paying fees or gaining a loan.  The Tribunal accepts this will have a degree of financial hardship on him should he continue his studies. However, with no dependants and no outstanding debts, the degree of hardship in paying tuition fees would be manageable and could not be reasonably characterised as onerous or severe. Overall, the Tribunal assesses the overall degree of financial hardship to be encountered by the applicant should this visa remain cancelled to be insignificant and manageable.

    Degree of emotional and psychological hardship

12. During the scheduled hearing, the applicant claimed he was depressed and that while he was not taking medication, he was advised to undertake counselling. The Tribunal accepts the applicant suffers from depressive mental health symptoms as claimed. The applicant has, nonetheless, never been hospitalised or sectioned under a health act. Neither has the applicant been prescribed any medication. The Tribunal assesses that the applicant’s mental health symptoms are challenging. After all, his marriage has dissolved, and he has no custody or visiting rights in relation to his child. However, there is no medical evidence from a medical professional to support the applicant’s mental health symptoms are not treatable. The Tribunal does not accept they can be reasonably characterised as considerable, significant or severe.

13. The Tribunal enquired into whether he could undertake counselling in India. The applicant acknowledged he could, but it was expensive. The Tribunal accepts that mental health support in Australia is more advanced than in India. However, given the applicant’s lack of other financial commitments to his ex-wife and child, the Tribunal assesses that the expense of counselling in India would not be unaffordable, as claimed.

14. The applicant has also claimed that he has strong ties to Australia. However, the applicant arrived in Australia in mid-2019 and he has mostly resided in the State of Western Australia during this stay. His brother, who has permanently migrated to Australia, resides in Brisbane. The applicant claimed he is now estranged from his brother due to his offending. The applicant elaborated that his parents travel between India and Australia and have been emotionally, but not financially, supportive. He has another sibling, a sister, residing in his home city of Ludhiana in Punjab. This indicates the applicant’s ties to the Indian community are significantly stronger than in Australia. Should this visa be cancelled, the Tribunal does not assess that he has any significant ties to the community and that he could return to Punjab where he could resettle with his family to find employment in a familiar environment.

15. The offending for which the applicant has been convicted led to him encountering genuine feelings of embarrassment and he is credibly stigmatised among family members and others who are aware of it. The applicant has raised the issue of stigma if his visa were to be cancelled and he was consequently required to return to India. As discussed in the hearing, the stigma will not necessarily be diluted among those who are aware of his convictions should he remain in Australia or return to his country of nationality. The Tribunal accepts there is a genuine degree of emotional hardship on him arising from this stigmatisation and that it would contribute to his accepted mental health problems. However, the Tribunal does not accept that the stigmatisation is significant or severe, given he generally has the support of his family and access to counselling.

16. Overall, the Tribunal assesses the degree of emotional and psychological hardship, cumulatively considered, to be notable but not considerable or significant, in its adverse impact, should this visa not be reinstated.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

17. As outlined under the topic ‘the purpose of the visa holder’s travel and stay in Australia’ the Tribunal made a number of findings by providing the benefit of the doubt. It accepts the applicant’s claimed circumstances that he travelled to Australia with a number of extenuating reasons arising from debts he accrued in the Indian garment industry and the money he owed to family and a number of loan sharks and the harassment he and his family experienced. In relation to this, it further accepts the applicant was limited in his earning capacity by the visa condition 8105, as claimed.

18. In short, the Tribunal accepts the applicant was living with a degree of financial distress and emotional turmoil at the time of his offending.

19. However, as discussed in the last resumed hearing, the Tribunal does not accept there was any temporary loss of sanity due to this financial distress. As the findings above outline, the applicant’s mental health problems were treatable and not significant or severe. After all, the offending occurred over a reasonable period of time, and the applicant did not enter into a plea whereby he was innocent due to mental incapacity or breakdown.  It does not accept that the theft of valuable items could be attributed to extenuating circumstances arising from any debt he owed. It was open to the applicant to remain in India and make arrangements to repay debts with the support of his family, whether this involved continuing to work in the family business or finding other work. It was also open to the applicant to report the harassment by the illegal debt collectors to the authorities. The Tribunal does not accept the authorities would not have provided him effective protection measures, especially given the father of the applicant’s wife was a retired police official.

20. While the applicant had some genuine extenuating circumstances, the Tribunal does not accept the applicant’s offending leading to him being convicted of breaching laws of an Australian State, and therefore, the cancellation of this visa under review was fully or substantially attributable to the combined impact of any treatable mental disorder or financial stress, as claimed. The Tribunal knowingly and wilfully stole around AUD30,000 worth of items because he assessed at the time of the offending that he could evade being charged and prosecuted.

21. While it accepts the applicant experienced extenuating circumstances when he offended, the Tribunal places a notable amount of weight in favour of the visa remaining cancelled as it does not accept those circumstances leading to the grounds for cancellation were beyond his control.

    Past and present behaviour of the visa holder towards the Department

22. The applicant, according to the Department, has provided conflicting information regarding his employment in India. As outlined above, the applicant deliberately provided incorrect information to the Department in his Genuine Temporary Entrant statement for his student visa, and his primary purpose for travel to Australia was to repay debts, and not to study in Australia as a genuine temporary entrant. As the applicant has proffered a deceptive GTE statement, he was unlikely to have been granted the student visa in the first instance if his real purpose had been known. The Tribunal places significant weight on this past deceptive behaviour towards the Department in favour of the visa not being reinstated.

    Whether there would be consequential cancellations under s 140

23. The applicant does not have any dependants associated with the cancelled visa under review. As there would be no consequential cancellations under s 140 of the Act, the Tribunal places no weight on this consideration either in favour of or against the visa being reinstated.

    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

24. If the visa remains cancelled, the applicant will become an unlawful non-citizen. In such circumstances, his visa options would be subjected to s 48 provisions which would considerably limit those options. He risks being further detained and forcibly removed from Australia if he does not leave voluntarily. It is open to him to make arrangements to apply for a bridging visa to enable him to make arrangements for departure, but there is no guarantee he will be granted the visa or successful on merits review.  The provisions of PIC 4013 would also prevent further offshore visas being granted for a period of up to three years from the date of cancellation.

25. The Tribunal places some weight on these mandatory legal consequences against the visa remaining cancelled.

    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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28])

26. The applicant is a citizen of India. He had indicated in his NOICC response that he fears returning to his home country as he owed debts. During the hearing, the applicant explained he no longer owed money to loan sharks, but he would owe as much as AUD50,000 to his wife and in-laws to repay a dowry. As discussed above, the applicant has no legal obligations to restitute such monies as part of the court order concerning the divorce agreement. Even when considering a manageable amount of debt owing to other family members, the Tribunal does not consider cancelling the visa will potentially lead to the visa holder being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of Australia’s obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

27. Moreover, the Tribunal notes the applicant is eligible to apply for a protection visa to argue he is owed Australia’s protection obligations, but he has not yet applied. It places considerable weight on this migration option being open to the applicant in favour of the visa remaining cancelled.

28. In the NOICC response the applicant argued that if he is removed from Australia this would cause his family emotional stress, due to the social and cultural pressure from relatives and friends upon hearing of his criminal convictions and consequential visa cancellation in Australia. This pressure will adversely affect his child’s upbringing and cause her to feel inferior. As discussed in the hearing, the applicant’s convictions and any stigmatisation caused to his child would not be increased by the applicant’s visa being reinstated.

29. Furthermore, an Indian court order has determined that the best interest of the child is and will be served by the applicant not owing any money to his divorced wife and former in-laws and that he has no visitation or custody rights or any legal obligations to support his child. This was a decision reached by both parties. The Tribunal places considerable weight on this court order to indicate the best interest of the applicant’s child, either financially or emotionally, will not be served by this visa being reinstated.

30. There is also no information before the Tribunal to indicate there are any children of the applicant in Australia whose interests would be adversely affected if this visa were to remain cancelled, and relevantly trigger any obligation under the Convention of the Rights of the Child (CRC).

31. The Tribunal therefore does not consider cancelling the visa would potentially result in Australia breaching its international obligations including under the CRC.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

32. This consideration is not relevant as the applicant’s cancelled visa had been a temporary student visa.

    Any other relevant matters

    Seriousness of the offences

33. As discussed in the hearing, the seriousness of the offending that was the grounds for cancellation is relevant to the Tribunal’s considerations as to whether this visa should remain cancelled or not.  The property stolen had a value of around AUD30,000. This can be reasonably characterised as a considerable amount. The theft, as the applicant acknowledged, had a significant effect on those individuals or businesses relying on their timely delivery. The applicant expressed some remorse for the victims at the hearing which the Tribunal accepts as genuine.

34. The Tribunal accepts there is evidence the applicant repaid Australia Post the stolen amount as quickly as he was able to. There is no evidence he had offended while in India or that he had been further charged or convicted while in Australia. The penalty or sentence imposed on the applicant did not involve paying fines, community service orders or imprisonment, indicating the stealing was not at the higher end of criminal offending.

35. However, the stealing for which the applicant was convicted was not trivial or insignificant. It is likely he would have continued stealing in this manner if his offending was not discovered.

36. Taken as a whole, the Tribunal assesses the seriousness of the offending to be of moderate concern by community standards, while having greater gravity and urgency for the victims directly affected. In the context where the penalties were of a lower order, the Tribunal places notable, but not considerable or significant weight, on the seriousness of the offending against the visa not remaining cancelled.

37. There are no other relevant considerations.

    Summary

38. In this matter, the grounds for cancellation under s 116(1)(g) were made out. The review applicant has engaged in criminal offending by stealing valuable items worth almost AUD30,000 – not an insignificant amount.

39. Nevertheless, it is the role of the Tribunal in assessing reviews of cancellation decisions to weigh up all the factors and all the available evidence before exercising its discretion.

40. There were a number of favourable considerations arising from the applicant’s academic progress and his history of compliance with visa conditions.

41. The Tribunal has, however, assessed the seriousness of the offending to be notably but not significantly beyond community standards. It accepts the applicant had some extenuating circumstances leading to the grounds for cancellation, but these were not beyond his control. With the dissolution of this marriage and with no custody or visitation rights for the applicant’s child back in India, the applicant has no compelling reasons to remain in Australia and there are no international obligations owing to the applicant. The overall degree of hardship to be faced by the applicant is assessed as notable but not significant.  The applicant has considerably more ties to the Indian community than the Australian community. The Tribunal has placed particular emphasis on his past behaviour towards the Department as deceptive and lacking in honesty. 

1. The Tribunal assesses that those factors in favour of the visa being reinstated do not outweigh those factors in favour of having the visa remaining cancelled.

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

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   Brendan Darcy
   Member