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

1. 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).

2. 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.

3. 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.

4. 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. 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.

6. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

7. The applicants appeared before the Tribunal on Monday, 5 September 2022, to give evidence and present arguments. The hearing was conducted by video in accordance with the Tribunal’s practice direction, and the applicant agreed to the hearing proceeding in that manner. No adjournment was sought, and the applicant indicated that he was ready to proceed. The Tribunal also received oral evidence from the second named applicant, who appeared for the hearing with the applicant. Both were appearing from the ACT where they currently work and reside and with their representative, who was in Sydney.

8. The applicants were represented throughout the process and in relation to the review by their solicitor, Mr Satwinder Singh, who also made written submissions.

9. 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

10. 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.

11. 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?

12. 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.

13. 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).

14. 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.

15. 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.

16. 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.

17. 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

18. 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

19. 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.

20. 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

21. 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.

22. 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.”

23. The statement from this Tribunal’s perspective required some further explanation as to the circumstances giving rise to the offences and the subsequent cancellation. At a hearing, the Tribunal has the advantage of both seeing and listening to the applicant giving life to the words on the page and obtaining a more fulsome particularisation of relevant details. The applicant was asked about his level of intoxication and he responded that a subsequent breath analysis reading was 0.175. He conceded this was significantly high and said that he was “highly intoxicated” at the time. He said he had drunk several glasses of vodka at his home, following an argument with Mrs Kaur. He explained that his home is very close to a bus interchange, and adjacent supermarket, and that he has a permanent car park in the shopping centre. He said after drinking, he walked to the shopping centre to find a tailor to alter his pants. When he found the tailor was closed, he decided to drive to another shopping centre. While walking to his car, he received a phone call from his cousin in Brisbane and he said he walked around for quite a bit talking to his cousin. He said about an hour had passed since his drinking by the time he started driving, and that he was quite intoxicated by that stage. He said he had no conscious realisation in retrospect of why he had made that decision. He said when he drove to the shopping centre, he had parked incorrectly, and had hit and broken a subway window with his car. He decided to drive home and in doing so, near his home, took a wrong turn into the bus interchange, which prohibits private traffic, and where he was seen by a bus supervisor who called the police. Police arrived at his home a short time afterwards while he was still sitting outside in his car. He had a verbal altercation with police who would not allow him to go in and speak with his wife. He does not remember refusing the breast test, but believes he was quite agitated at the time. The Tribunal did not form the view and the applicant did not submit, that the circumstances giving rise to the ground for cancellation were beyond his control.

24. The applicant entered a plea of guilty on two offences and was fined $250 and ordered to pay $650 for damage to the window as reparation. He was further fined $1500 and disqualified from driving for a period of 12 months. The applicant said he had paid some of the fine but had an agreement to pay the balance of approximately $2200 which is not yet due, but which he proposes will be paid “by this week or the end of next week”. The applicant was extremely apologetic and repentant for his behaviour and was particularly candid in describing the details which he did not attempt to trivialise or downplay. He thought himself lucky that there had been no more serious outcome from his behaviour. He told the Tribunal the incident was “life changing”, and that he has not had any alcohol at all since that time. He said he has also attended an ACT rehabilitation course, “Know the Risk”, for drink driving offences and has had no further issues concerning police and acknowledges that the sentencing and outcome was entirely appropriate.

25. He was asked about the circumstances leading up to his offending. He stated that he and his wife had both been working extremely hard and were under some significant work stress. He said he had been working at the time for six-day / 48-hour shifts at various COVID-19 testing stations in the ACT. In addition, he had a second job for four hours each night, six nights a week working as a checkout security officer for Woolworths. He said his total workload around 72 hours per week left him very fatigued. He said his wife also worked six days a week at COVID-19 testing stations, doing 12 hour shifts. He said it was at the height of the pandemic and both of them were also concerned about his future, as his visa was due to expire in April 2022. He said at the time he was trying to accumulate points towards a visa for permanent residency. He said that he acknowledged “it was a stupid decision on my part”, and that he was “fairly punished”. He said he had put his family in jeopardy as a result. He said that since the event and his conviction, his life has changed significantly. He said it was the first and only time he has had any involvement with police.

    Past and present behaviour of the applicant

26. He said in July 2021, he had started a new role with Canberra Health Services. He produced an employer’s letter for the Tribunal dated 1 August 2022 from his Administration Team Leader, COVID-19 Testing and Vaccination, at ACT Health. The letter explains the applicant’s role as an Accommodation Support Officer working with the Health Services “screening, testing and vaccination, maintaining and transmitting covid-19 testing statistics and wait times, recording and dispensing RAT stocks, maintaining and transmitting statistics, liaise with nursing staff, traffic and security teams for the smooth operation of health sites and train new staff and shift leads”. The applicant said that his employer has introduced new software for digital health records, which he has been trained to operate, and where he hopes to work for the Canberra Regional Cancer Centre as part of ACT Health Services and which has offered him that employment. He said his training and education in IT has been of great assistance to him in carrying out that employment and assisting his employer in the health services role. The applicant explained that he had obtained a qualification from Sydney University with a Master’s degree in IT, specialising in Cyber Security, and to which he was admitted in June 2020. He produced a copy of his qualification.

27. When asked about his current role with ACT Health Services, the applicant said that he was promoted to an ASO4, working at the Canberra Regional Cancer Centre, where he maintains clinical records, schedules patients for their clinical appointments, maintains all medical records including referrals and immunology reports, utilising the DHR software. He said he is currently on a salary of $68,000 per annum plus superannuation. He said that he has also lodged an expression of interest for a Subclass 491 Skilled Work Regional (Provisional) visa, which is still being considered and in respect of which he is hoping to receive an invitation to lodge a visa application. He said this provides a pathway to permanent residency for him and his family and also to his career goal of working for the Commonwealth as a Cyber Security specialist, which aligns with his qualifications and career aspirations. He said there are career opportunities available in that profession for trained specialists, and in which he has obtained a suitable skills assessment from the Australian Computer Society, dated 1 March 2021, following completion of the ACS Professional Year Program in ICT.

28. The Tribunal accepts the applicant’s evidence and is satisfied that there is no evidence before it of any past behaviour on the part of the applicant and involving the Department, such as failure to comply with any visa conditions, save for the offending outlined above, which would warrant further consideration for cancellation of the visa. The Tribunal considers relevant the fact that the second named applicant will lose her visa pursuant to the operation of section 140 of the Act and as a consequence of the applicant’s visa cancellation.

    Hardship, and the effect of a cancellation

29. The Tribunal discussed with the applicant what hardship he might anticipate on returning to India. He stated that it would be difficult for he and his wife to relocate from their hometown to a major city for him to pursue an IT career. He said he had no business or financial connections in India and that his principal familial relationship was with his mother who remains in their hometown. He said they would both be financially and psychologically stressed by that experience and it may take some years for them to recover. He said his unborn child would also benefit from remaining in Australia. He said however there were no reasons for him to fear returning to India such that he might require or consider protection as a refugee. Were the visa cancelled, the applicant would have sufficient time to negotiate his exit from Australia with the Department within the available time frame and would not be liable to detention unless or until he breached departure guidelines. The Tribunal finds there is no other mandatory consequence for the visa holder of a possible cancellation, and which might weigh otherwise against such decision, and the question of any international obligation including non-refoulement, family unity and best interests of a child as a primary consideration do not arise in this case.

    Other relevant matters

30. The Tribunal asked the applicant whether there were other considerations to which the Tribunal should have regard. In summary, the applicant asked the Tribunal to take account firstly of his work during the pandemic, which is continuing, and the lengthy hours worked both by himself and his wife at the height of the pandemic in COVID-19 testing facilities. He said both he and his wife had contracted the virus from their workplace. He said further that he was extremely remorseful for his behaviour under stress, and that he has since sought to redeem himself both through his work and abstinence. He said his wife is now pregnant with her first child and he is conscious of ensuring his personal behaviour has improved and that he is able to commence a better family life in Australia. He said he has a younger brother who is returning to Australia shortly to be with his wife who is in Sydney studying hotel management. He said his youngest sister is also in Sydney currently studying nursing and also hoping to remain in Australia and develop her career. He said he has two cousins in Brisbane who are Australian citizens, a cousin in Melbourne who is a permanent resident and another cousin in Adelaide who is on a five year long-term employment visa. He said he will lose those close family connections if he is compelled to return to India. He said all his relatives in Australia are close and as the elder brother, he supports them not only with his IT skills but with other needs. He said he is hopeful that his expression of interest to be invited to apply for the subclass 491 visa will be successful, as his IT skills are highly sought after. He said he enjoys his work for the Canberra Health Services in the meantime, where he is able to utilise his IT training in application of the DHR software, and where he feels he is making a contribution through working at the Cancer Centre where he also has direct contact with patients and their management. He said his wife is also working in the health sector for ACT Health Services and trained in COVID-19 screening and protection services.

1. The applicant said he and his wife are both practising Sikhs and regularly attend their local temple where they volunteer on weekends serving meals to local people, principally fellow Hindus, and Sikhs. He said the temple’s workload was significant during the ACT pandemic lockdowns. He said they have also joined the ACT branch of “Helping Hands”, who are members of the Sikh community offering services for other migrants and young people. He said they help with meals, and with colleagues they have met in the ACT, utilising his IT skills by providing computer assistance and to some of their small businesses.

2. On completion of the hearing, the representative submitted that the Tribunal should give significant consideration to the matters outlined by the applicant, his contributions both to his employment, and to the community, and apply the exercise of discretion with empathy and compassion in the circumstances of this case.

   Conclusion

3. Having considered the applicant’s evidence and the overall circumstances set out above, the Tribunal is of the view in this case that the weight of consideration is in favour of the applicant, a qualified IT cyber security specialist, to remain working in regional Australia where there is a significant skill shortage and where the applicant has already demonstrated a successful career path, either as proposed by him for skilled work in cyber security, or alternatively, remaining in the health sector with  ACT Health Services, who need and prefer to retain him in their employment. The Tribunal has taken account of the applicant’s genuine remorse for his behaviour on the one occasion involving his drink driving. The Tribunal is satisfied the applicant’s contrition is genuine and that he is sincere and credible in his desire to make a meaningful contribution to the Australian community.

4. The overall weight of consideration therefore in this Tribunal’s view in this instance favours the applicant. Considering the circumstances as a whole, the Tribunal concludes therefore that the visa should not be cancelled.

5. 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

6. 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.

7. The Tribunal has no jurisdiction with respect to the second named applicant.

   Alan McMurran
   Member