Hatti (Migration)

[2023] AATA 3763

Hatti (Migration) [2023] AATA 3763 (5 September 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhijeet Hatti

REPRESENTATIVE:  Mr Jaimin Darbar (MARN: 1575637)

CASE NUMBER:  2214304

HOME AFFAIRS REFERENCE(S):          BCC2021/1956064

MEMBER:David McCulloch

DATE OF DECISION:  5 September 2023

DATE CORRIGENDUM

SIGNED:19 October 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

“On the front page of the decision record the words “Dr Renu Dhunna (MARN: 1678919)” should be replaced with Mr Jaimin Darbar (MARN: 1575637)”

David McCulloch
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhijeet Hatti

REPRESENTATIVE:  Dr Renu Dhunna (MARN: 1678919)

CASE NUMBER:  2214304

HOME AFFAIRS REFERENCE(S):          BCC2021/1956064

MEMBER:David McCulloch

DATE:5 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 05 September 2023 at 3:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – criminal convictions – fines and driving disqualification – discretion to cancel visa – circumstances of offending – lower range offences – one other charge dismissed – mental health and compliance with treatment plan – originally little study progress, then completed qualification with plans for further study – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 September 2022 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 applicant is a citizen of India born on [Date]. The visa that was granted on 21 October 2020, and expired on 30 September 2022.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 8 September 2022. The applicant did not provide a response to the NOICC.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 14 June 2023 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. However, the applicant elected to communicate in English only needing the interpreter if necessary. The applicant mostly communicated in English with the interpreter being used on occasions.

6. The applicant was represented in relation to the review. The representative attended the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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?

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, reg 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

10. The delegate’s decision record and documents on the Department file indicate that, according to a report provided by the NSW Police, the applicant has been convicted of the following criminal offences:

    ·On 20 February 2020 at the Sutherland Local Court: Drive with middle range PCA – 1st offence. He was fined $600 and disqualified from driving for three months and required to participate in a 12-month alcohol interlock program.

    ·On 12 October 2020 at the Burwood Local Court: Drive motor vehicle during disqualification period – 2nd offence. He was given a fine of $1100 and disqualified from driving 12 months.

11. The Tribunal also notes that on 2 August 2022 at the Wyong Local Court the applicant plead guilty to three counts of ‘commit an act of cruelty upon an animal’ and received a court ordered diversion treatment for anxiety, depression, alcohol abuse and gambling.

12. In the hearing it was accepted that the applicant was convicted of the two driving offences. In relation to the animal cruelty charges, it was indicated and evidence provided that the charges had been dismissed pursuant to s 14(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the NSW Mental Health Act). The dismissal was on the basis of the applicant complying with certain conditions including specific psychological treatment.

13. 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

14. 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’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (that is, consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

15. Provided the day before the Tribunal hearing was a report by Mr Chafic Awit, Registered Psychologist dated 2 August 2022 which appears to have been created for the purpose of the animal cruelty charges faced by the applicant. The report refers to five consultations having been undertaken with the applicant. The report details the applicant’s early history, employment history and alcohol, gambling and drug history. Comments on the applicant’s psychosocial history indicate that the applicant has struggled with self-esteem issues for a number of years and is afraid of disappointing his parents. He has underlying feelings of worthlessness and feeling that he is not good enough for a long period. The applicant lied to his parents about dropping out of courses in Australia. This has led to an exacerbation of underlying anxiety and depressive symptoms. During COVID-19 the applicant struggled financially which further worsened his symptoms leading to development of an alcohol use disorder and gambling disorder. Alcohol was used to numb feelings.

16. It is the writer’s professional opinion that the applicant has met relevant criteria for generalised anxiety disorder, alcohol use disorder and gambling disorder. It is the writer’s professional opinion that the applicant’s psychological condition meets the requirements for the purpose of s 14 of the NSW Mental Health Act which outlines options in cases where the defendant appears to be mentally impaired or cognitively impaired. It is the opinion of the writer that at the time of the offences the applicant’s condition led to a mental impairment as defined in the NSW Mental Health Act. This caused a temporary thought and mood volition and the disturbance would be regarded as significant for clinical diagnostic purposes. The disturbance impaired the emotional well-being and judgement of the applicant.

17. It is noted that the applicant consumed alcohol around the period of reoffending. He does not justify his actions as he knows they are inexcusable. However, the applicant noted that he has never had an issue with dogs or any incident of cruelty towards animals. In fact, in the year prior to the offence, the applicant risked his own life to save a dog from a Pitbull.

18. It is the writer’s opinion that the applicant’s condition was exacerbated by his desperation to work and get on top of financial issues.

19. The report refers to a treatment plan for the applicant which involves the applicant remaining under the care of the psychologist for the next 12 months with sessions held fortnightly. Once improvement is seen, the period between sessions will extend. If further treatment is warranted, this will continue.

20. Also provided the day before the Tribunal hearing were character references as follows:

    ·from Mohammad Kalid Rasuli dated 14 November 2022 who indicates he has been the applicant’s employer at a pizza and kebab shop since around December 2018. It attests to the applicant being a hard worker and having a good moral compass. The report refers to challenges faced by the applicant which are not an excuse for what he has done. The applicant has remorse for his actions. He has completed a traffic offenders’ program.

    ·from Gaurav Gupta dated 8 November 2022 who was the applicant’s employer at a 7-Eleven. The writer indicates he is aware of the applicant being charged with an offence of driving while disqualified. He attests to the applicant’s repute and moral character and being committed to his work and studies. The driving offences shocked the writer. The applicant is remorseful and stated that he believed he was permitted to drive. He believed he had served the disqualification period.

21. Also provided at this time was a statement from New South Wales Corrective Services dated 13 April 2023 relating to community service the applicant was undergoing at The Salvos Store – North Parramatta and indicating he had 41.30 hours remaining.

22. Provided on the morning of the Tribunal hearing was a court report dated 14 November 2022 indicating the applicant’s competency in modules as part of the Traffic Offender Intervention Program.

23. The applicant in the hearing indicated that the first traffic offence of driving with mid-range alcohol content happened when he had been drinking but did not realise he had drunk enough to place him over the limit. The applicant indicated that the second offence occurred when he drove after the three-month disqualification period but he was confused as to the requirements for the 12-month alcohol interlock program, and did not realise he was not able to drive at the point that he did because the interlock device had not been properly installed in his car.

24. The Tribunal has some concerns that the applicant would not have known the requirements of the interlock program and to ensure compliance before driving.

25. While the driving offences are adverse to the applicant, they are in the lower range of seriousness in terms of criminal offences.

26. While some adverse inferences are drawn from the admission by the applicant that he engaged in animal cruelty, a not insignificant exculpatory factor is that the charges were dismissed on the basis of the magistrate accepting mental health conditions by the applicant.

27. The applicant in the hearing also indicated that his mental health issues were in part responsible for his offence of driving under the influence of alcohol.

28. It had been requested by the representative at the hearing that there be the ability of the applicant’s psychologist to provide a further report as to the course of the applicant’s treatment in terms of the diversionary order of the magistrate in relation to the animal cruelty charges. It was indicated that this report could be provided in August 2023. The Tribunal provided time for this report to be provided.

29. A report from the psychologist was provided dated 4 August 2023. It indicates that the applicant was released into the care of the psychologist from July 2022. It indicates the applicant has been compliant with the treatment program of the writer and has progressed to sustain remission for all conditions. The applicant is reported to be doing well and no longer is required to be under the care of the writer. The writer provides the opinion that the applicant would do well. The applicant’s anxiety levels are elevated slightly due to the migration proceedings.

30. Based on the report and other evidence in the hearing, the Tribunal is satisfied that the applicant has complied with the orders of the magistrate in terms of the dismissal of the animal cruelty charges.

31. The Tribunal explored with the applicant in the hearing his study history in Australia. The applicant originally when he arrived in 2018 was enrolled in business courses in which he did not make any significant progress. At a certain point, the applicant decided that business was not his area of interest and decided to pursue cookery and hospitality. The applicant from 20 July 2020 enrolled in a Certificate IV in Commercial Cookery.

32. The applicant in the hearing indicated that he had fulfilled all the requirements of this course, but due to financial constraints and his fees for this course not being paid, the institution had declined to issue his certification. The Tribunal determined it needed to see evidence of this certification as well as the financial capacity of the applicant, particularly in terms of future study.

33. The applicant indicated that he would be able to pay outstanding fees by August 2023 and gain the evidence of the certification in the Certificate IV in Commercial Cookery. The applicant indicated that his previous subsequent enrolment in a Diploma of Hospitality Management from 26 April 2022 was not in fact studied by the applicant due to a combination of his mental health issues and financial problems. The representative also submitted that COVID-19 had caused delays in the practical component of the Certificate IV being completed which delayed future study.

34. The applicant indicates that his intentions if the visa is reinstated are to undertake and complete the six-month Diploma of Hospitality Management course. Thereafter, the applicant intends to return to India and work as a chef. The applicant indicated that the key hardship if the visa is not reinstated would be his inability to undertake this further hospitality study. The Tribunal accepts some hardship in this respect.

35. The Tribunal also accepts hardship to the applicant if his visa is not reinstated in terms of his inability to apply for visas onshore. The Tribunal also accepts that if the visa is not reinstated the applicant could be an unlawful non-citizen. However, the applicant would have eligibility for a bridging visa to make his status lawful while he makes arrangements to leave the country.

36. The Tribunal needed evidence of the applicant in fact completing the Certificate IV in Commercial Cookery which would not be satisfied until the applicant has paid outstanding fees. The applicant’s financial capacity is also relevant to him being able to study the Diploma of Hospitality Management.

37. The applicant indicated in the hearing that by August 2023 he would be in a position to pay off the fees outstanding and provide evidence of his completing the Certificate IV in Commercial Cookery. The applicant also indicated that he would be able to provide evidence of his ability to fund the Diploma of Hospitality Management.

38. In response the applicant provided a Certificate of Completion of the Certificate IV in Commercial Cookery issued 18 August 2023. The applicant also provided financial records of himself and his father and a declaration from the applicant’s father that he will be providing financial support to the applicant in terms of his studies and residence in Australia.

39. The applicant also provided an offer and acceptance agreement from the education provider in a Diploma of Hospitality Management due to commence on 2 October 2023.

40. The Tribunal accepts that the applicant successfully completed the Certificate IV in Commercial Cookery and has the resources including those provided by his father to progress with the Diploma of Hospitality Management.

41. The Tribunal weighs discretionary factors both favourable and adverse to the applicant.

42. It is adverse to the applicant that the applicant has been convicted of two driving offences which have some level of seriousness in terms of driving under the influence and driving while disqualified. Nevertheless, the Tribunal does not consider that the offences are at the overly serious end of the spectrum of criminal offences and accepts, in relation to the second offence, some confusion by the applicant as to the requirements of the interlock program and understanding that this resulted in him not having the lawful ability to drive given that the three-month suspension period had ended.

43. There is adverse inference drawn in relation to the applicant in terms of him admitting to animal cruelty but this is ameliorated by the magistrate dismissing the charges on mental health grounds and the Tribunal’s acceptance that the applicant has complied with the order of the magistrate in terms of future psychological treatment, mental health issues being contributing factors to the offence and the psychologist’s opinion as to the applicant’s reform.

44. In terms of study history, it is adverse to the applicant to a limited degree that he made very little progress for two years in Australia while studying business courses. However, on the evidence provided the Tribunal accepts that the applicant has been reasonably committed and successful in terms of hospitality studies and has completed the Certificate IV in Commercial Cookery.

45. The Tribunal accepts based on the material provided in August 2023 that the applicant has been certified as completing this course as well as the fact that he has the financial ability to study the Diploma of Hospitality Management.

46. At its heart, the key adverse issue for the applicant is his conviction for the driving offences which while not insignificant are not at the serious end of the spectrum. Given mental health issues accepted by the magistrate the Tribunal makes allowances for the applicant in relation to the animal cruelty charges and the fact that there was not a recorded conviction for the offences. The applicant has clearly been committed to attendance with a psychologist after the events in question and has made good progress.

1. The Tribunal accepts hardship to the applicant if he is not able to study his intended Diploma of Hospitality Management in Australia to increase his qualifications to facilitate a career as a chef in India.

2. Balancing discretionary issues, the Tribunal is satisfied that matters adverse to the applicant are outweighed by matters identified against exercising its discretion to cancel the visa.

3. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   David McCulloch
   Member