Jabarjeet Singh (Migration) - [2022] AATA 3653

Jabarjeet Singh (Migration) [2022] AATA 3653 (6 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jabarjeet Singh
Mrs Gurjinder Kaur
REPRESENTATIVE:  Mr Satwinder Singh
CASE NUMBER:  2119972
HOME AFFAIRS REFERENCE(S):          BCC2021/2164499
MEMBER:Alan McMurran
DATE:6 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 06 September 2022 at 10:29am

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – conviction – applicant’s genuine remorse for his behaviour – contribution to the Australian community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 348
Migration Regulations 1994, r 2.43, Schedule 2
CASES
Tien & Ors v MIMA (1998) 89 FCR 80
Rani & Ors v MIMA (1997) 80 FCR 379
STATEMENT OF DECISION AND REASONS
application for review

This is an application lodged 24 December 2021 for review of a decision dated 21 December 2021 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (“the applicant”) Subclass 485 (Temporary Graduate) visa (“the visa”) under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant, Mr Jabarjeet Singh, is a 32 year old citizen of the Republic of India. The secondary applicant, Mrs Gurjinder Kaur, is the applicant’s spouse. The applicant was granted the visa on 14 April 2020 and which, but for cancellation, ceased on 14 April 2022.
The delegate cancelled the visa under s 116(1)(g), for a prescribed ground contained in regulation 2.43(1)(oa) of the Migration Regulations (the Regulations), which prescribes that a visa of the type issued to the applicant may be cancelled where the applicant is convicted of an offence against a law (in this case) of the Australian Capital Territory. The applicant was found guilty of two driving offences for having driven under the influence of alcohol, and for having refused a breath analysis test, both offences occurring on the same date.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96.
As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jabarjeet Singh (Migration)

Details

AGLC: Jabarjeet Singh (Migration) [2022] AATA 3653
Case: [2022] AATA 3653
Decision Date: 6 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel Jabarjeet Singh's Subclass 485 (Temporary Graduate) visa. The cancellation was based on Mr. Singh's conviction for driving under the influence of alcohol and failing to provide a breath sample to police in the ACT.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(oa) of the Migration Regulations 1994 were made out. Having found that the ground for cancellation existed, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the applicant had been convicted of the specified offences, thus satisfying the ground for cancellation. However, as the cancellation was not mandatory, the Tribunal proceeded to consider the exercise of discretion. The applicant provided evidence of genuine remorse, explaining the offences arose from a temporary emotional disturbance and were a one-off incident not reflective of his character. He highlighted his contributions to the Australian community, including his work during the COVID-19 lockdown with ACT Health and at various vaccination and testing centres, and his commitment to abstaining from alcohol. The Tribunal considered these factors, along with the applicant's stated intention to apply for a Subclass 491 visa, and concluded that the decision to cancel the visa should be set aside.

The Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Singh's Subclass 485 visa. The Tribunal noted it had no jurisdiction concerning a second applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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. These may include matters of government policy.Does the ground for cancellation exist? 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 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. It prescribes that in the case of a holder of a temporary visa, as in the present case, the Minister is satisfied that the holder (the applicant) has been convicted of an offence against the law of the Commonwealth, State or Territory, whether or not the holder held the visa at the time of the conviction and penalty imposed (if any). The applicant was the holder of a subclass VC-485 visa, granted 14 April 2020 and which expired on 14 April 2022. It is not in issue before this Tribunal and the applicant concedes that he was convicted by the ACT Magistrates’ Court of the following two offences on 30 September 2021:a.DRIVER/DRIV. TRAINER FAIL/REF. BREATH SAMPLE – DIRECT BY POLICE OFF. The offence was recorded with conviction. The visa holder was also fined $650, his license has been suspended for six months and he was ordered to pay $250 in reparation.b.DUI DRIVE UNDER INFLUENCE OF LIQUOR/DRUG. The offence was recorded with conviction. The visa holder was fined $1500, and his license was suspended for twelve months from the date of conviction. The circumstances of these offences are outlined below and were discussed in some detail with the applicant at the hearing. The delegate was satisfied that in light of these convictions, the grounds for cancellation under s116(1)(g) of the Act and reg.2.43(1)(oa) of the Regulations were made out. The Tribunal asked the applicant at the hearing if he understood the Department’s reasons for the decision to cancel the visa, and whether he accepted that there was a valid reason for termination in accordance with the Act and the Regulations. The applicant, who gave his evidence in English and which was readily understood by the Tribunal, confirmed he had understood the reason for the cancellation arising, and indicated he wished to provide some background and reasons for the Tribunal to consider for the exercise of discretion in his favour. For these reasons, the Tribunal is satisfied that the ground for cancellation in s116(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 for the exercise of discretion

Decision

Reasons for decision

The Tribunal notes that the applicant’s temporary Subclass 485 visa would have ceased on 14 April 2022, if not cancelled by the delegate, and the applicant therefore may need to consider making another visa application, depending upon the outcome of his EOI to the Department in respect of the subclass 491 visa.decision The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 485 (Temporary Graduate) visa. The Tribunal has no jurisdiction with respect to the second named applicant.Alan McMurranMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s116(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 for the exercise 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 information available from the Department and Tribunal files, the oral evidence from the hearing, available court decisions, and the submissions from the applicant’s representative.The purpose of the visa holder’s travel and stay in Australia The applicant came to Australia with his wife in July 2017 on a temporary visa to complete a degree at Sydney University. He was subsequently granted a further temporary visa, Subclass 485, in April 2020. He said on completion of his degree in 2020, he moved to the ACT with his wife to improve the opportunity for him to obtain ultimately a career with the Commonwealth in cyber security, which aligns with his IT qualifications. Pending the outcome of the cancellation decision, the applicant is proposing to lodge an application for a Subclass 491 visa, where invited to do so, following the lodgement of an expression of interest on his behalf. But otherwise, the applicant has no compelling circumstances or reason to remain in Australia, notwithstanding his stated preference to do so for the benefit of himself and his family.Circumstances in which the ground for cancellation arose When considering the matter, the Department had initially provided the applicant with a Notice of Intention to Consider Cancelling the visa on 1 December 2021. In response to that Notice, the applicant provided a written statement to the Department on 14 December 2021, and which he also relied upon for this hearing. His statement set out in full submits:““On 1 July 2021 (i.e. the date of the offence), there was a minor argument between me and my wife. I was emotionally disturbed and started drinking at home. We do not have any parking spot in our building. We park our car in the nearby Westfield shopping centre in Woden. I walked to the nearby Westfield shopping centre for the alteration of my trousers. However, the tailor’s shop was closed. I drove to the next shopping centre. On my way back home, Police charged me with drink driving and failure to provide a breath testing sample.”“I am ashamed and highly embarrassed by my act. This was the reason that I have pleaded guilty at the first opportunity in the ACT magistrate’s court. The act committed was due to my immature response, and poor mishandling of the situation. This was the first-and-one-off incident that is not a true reflection of my character. I also request you to consider my previous records as I am otherwise a law-abiding citizen working currently in security industry as well as with ACT health. I have worked very hard on the CHS Covid Recovery Response Team during August 2021 ACT Covid lockdown and worked tirelessly at EPIC Covid testing, AIS Covid vaccination centre and the Canberra Hospital. It was very difficult working at two different locations without a driver’s license, but I saw this hardship as a chance of redeeming myself from my mistake. Neither me or my wife have never breached of our visa conditions nor we have been involved in any breaches of law in the past. It was a one-off event that was triggered due to my poor response to temporary emotional instability.”“I unreservedly admit that my temporary lack of maturity and disproportionate response to the circumstances involved me in trouble with police and ultimately, I was dealt with Justice System. I have realised my mistake and as part of that I have quitted drinking alcohol completely and have promised to myself not to drink at all in the future.”