Kattell (Migration)

[2023] AATA 3014

Kattell (Migration) [2023] AATA 3014 (12 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Aakash Kattell
Ms Manaandiny Roka

REPRESENTATIVE:  Mr Ajay Sharma

CASE NUMBER:  2306408

HOME AFFAIRS REFERENCE(S):          BCC2023/156929

MEMBER:Kira Raif

DATE:12 September 2023

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 12 September 2023 at 3:30pm

CATCHWORDS

MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) visa – Subclass 485 (Temporary Graduate) – applicant convicted of an offense – family and financial hardship – assessed low risk of reoffending – family responsibilities in Nepal – recent contribution to the community – disruption to wife’s studies – decision under review set aside    

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, r 2.43

CASES

Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 4 May 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s (the applicant) Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a national of Nepal, born in April 1996. He was granted the Temporary Graduate Visa in November 2022. In April 2023 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be a ground for cancelling his visa under s. 116(1)(g) of the Act. The applicant provided his response to the NOICC and his visa was cancelled in May 2023. The applicant seeks review of the delegate’s decision.

3. The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. 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 second named applicant.

5. The applicants appeared before the Tribunal on 12 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicants were represented in relation to the review.  For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

6. 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(g).

7. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It relevantly states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (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))

8. 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. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Temporary Graduate Subclass 485 visa on 14 November 2022. The visa was due to be in effect until November 2024.

10. The Department received advice that in November 2022 the applicant had been convicted at the Magistrates Court of Victoria at Broadmeadow of intentionally causing injury. He was sentenced to a Community Corrections Order for a period of 18 months, and 175 hours of community work. The applicant provided to the Tribunal a copy of the Community Corrections Order which indicates the offence was family violence related.

11. The Tribunal finds that the applicant was a holder of a Subclass 485 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of an offence against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa). The applicant concedes in his evidence to the Tribunal that there are grounds for cancelling his visa.

12. 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

13. 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

14. The applicant states in his response to the NOICC and in his evidence to the Tribunal that he arrived in Australia holding a Student visa and had completed his studies in IT before being granted the subclass 485 visa. He provided to the Tribunal evidence of study completion, as well as evidence relating to his partner, including evidence of her employment, skills and English assessments.

15. In his written statement to the Tribunal the applicant also stated that he travelled to Australia to study and after he married his wife in Nepal, he sponsored her for a visa, but the process was delayed due to Covid.

16. The applicant explained to the Tribunal that after completing the Bachelor of IT, he had not worked in that field. He said he was interested in cooking and had been working in hospitality when he came to Australia. He subsequently completed some cookery qualifications. The applicant told the Tribunal that he made the application for the Skilled visa on the basis of his IT qualification and only did the cookery course after he made the application. The representative submits that there was no requirement for the applicant to work in a particular occupation after being granted the Skilled visa and he would be allowed to seek a two year extension on his visa because he had completed the Bachelor IT, even if he had not worked in that field.

17. The Tribunal finds that the Skilled visa was granted on the basis of the applicant’s IT qualification and the applicant is not engaged in employment in that field. However, the Tribunal also acknowledges the applicant’s evidence that he does not need to work in the field, that he has completed formal study in hospitality and is working in that field and that he intends to apply for another visa on that basis or obtain visa sponsorship based on his employment in hospitality. It appears that the applicant is fulfilling the purpose of his visa.

    The extent of compliance with visa conditions

18. There is no evidence of non-compliance with visa conditions.

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

19. The applicant states that if his visa is cancelled, there would be financial hardship as he and his wife are primary carers for their parents. He states that his wife’s parents had recently undergone surgery and some medical records have been presented.

20. The applicant refers to psychological and emotional distress. He states that he is “under depression medication” and that the process “has made him and his wife morally down for their future”. The applicant states that due to the ‘incident’ he and his wife stopped planning to start their family as they are worried about the future. The applicant provided evidence that he has been prescribed medication for his depression. The doctor’s report states that the applicant had attended the clinic twice, was prescribed one medication and referred to a psychologist and no other treatment was deemed suitable.

21. The applicant told the Tribunal that  he and his wife support family in Nepal and there would be financial hardship, as well as emotional hardship and reputational loss, if the visa is cancelled and people will ask them why they came back. The applicant refers to the caste difference between him and his wife and opposition to their marriage from the family and he states that if they return to Nepal, the families may try to break their marriage so they can marry within their casts. The applicant claims that there may be relationship problems if he is to return.

22. The applicant states that if they were to return to Nepal, they would be shamed because of the incident and questions will be raised about his wife.

23. The applicant states that he has invested heavily into his career and his wife came to Australia with the hope of a bright future in her field. If they need to return to Nepal because of the incident, they will face criticism as the incident will “drastically change their future”.  The applicant states that he works as a chef and plans to work as a chef on a long term basis and settle in Melbourne while his wife is a qualified engineer and wants to do a Masters course and she has applied for a Skills assessment. The Tribunal accepts that if the visa is cancelled, the applicant’s spouse may not have an opportunity to study in Australia (unless granted another visa).

24. The Tribunal is mindful that the applicant and his spouse held temporary visas only which were due to expire in late 2024. Unless granted other visas (for which there can be no guarantee), they are expected to return to Nepal. It is unclear, then, on what basis the applicant has assumed that he and his spouse would be (or should be) permitted to remain in Australia on a long term basis and pursue their career aspirations and avoid returning to Nepal. The applicant states that he is in a good position to be granted a permanent visa and can extent his subclass 485 visa but the Tribunal cannot assume that would be the outcome of any future process.

25. The applicant refers to his mental health and states that return to Nepal may affect his mental health and he refers to the medication he is taking. There is no probative evidence (such as medical reports) supporting the applicant’s claim that his mental health would be adversely affected if he returns to his home country. The Tribunal finds the applicant’s evidence purely speculative and does not accept it.

26. The applicant states that if he is to return to Nepal, he would be ostracised by the community due to what he has done and because he would have returned to Nepal earlier than his visa would have expired, with no savings and no career. The Tribunal is of the view that if there is any adverse reaction by the community, that would be due to the conviction and the applicant’s conduct, rather than the cancellation of the visa. The Tribunal does not accept that the community in Nepal is so familiar with the Australian immigration law as to appreciate the difference between the applicant returning to Nepal due to the visa expiry or due to visa cancellation.

27. As noted above, the Tribunal notes that many of these claims assume the applicant’s ability to remain in Australia permanently or long term. That assumption cannot be made. Nevertheless, the Tribunal accepts that the applicant and his partner support their family members overseas. The Tribunal accepts that they intend to seek other visas in Australia and pursue study opportunities. The Tribunal accepts that they might not have such options if the visa is cancelled. The Tribunal accepts that hardship may be caused to the applicant, his partner and their families if the visas remain cancelled.

    Circumstances in which ground of cancellation arose

28. The ground for cancellation arose because the applicant had been convicted of an offence.

29. In his written statement to the Tribunal the applicant describes his connection with flat-mate Ms T while waiting for his partner to arrive. He states that after he disclosed that relationship to his wife and let Ms T know that he wanted to concentrate on his marriage, Ms T’s behaviour changed, she was ‘lashing out’ at him and was frequently upset. The applicant states that after Ms T failed to take care of him when he was unwell, he decided to end their living arrangements and she reacted with anger and sent him upsetting messages. When he insisted that she leaves the premises, there was a heated argument and Ms T threatened to hurt him and she later threw a phone at him, causing bleeding. The applicant describes some ongoing contact after Ms T left the premises. With respect to the incident on 29 November 2022, the applicant states that he and Ms T made arrangements to meet. The applicant states that he was heavily intoxicated, Ms T was at his home and abusive towards him. The applicant states that due to his intoxication he has no recollection and he refers to the traumatic experiences of his childhood. In his evidence to the Tribunal the applicant also stated that he was intoxicated and could not recall what happened but he took responsibility for his conduct and pleaded guilty.

30. In his response to the NOICC and his submission to the Tribunal the applicant states that he is remorseful and has experienced depression and anxiety from the incident. The applicant refers to a traumatic childhood (he describes the circumstances of his childhood in the statement which he provided with his submission to the delegate) and states that some incidents when he is intoxicated triggered his past. The applicant states that he has made a mistake and is remorseful. The applicant states that he is doing his best to overcome the trauma and is working on his mental health. The applicant states that he has been assessed as having a low risk of reoffending.  The applicant repeated these claims in oral evidence to the Tribunal.

31. The applicant states that he has accepted the court order, has applied for assessment and treatment counselling, completed an anger management and men’s behaviour change course and a positive mindset course. The applicant states that he has sought treatment for his depression and mental health. The applicant has indicated that he is looking for further counselling and activities to reduce his alcohol consumption and take care of his mental health as he does not want to be in the same situation in the future. The applicant provided with his response to the NOICC evidence of having completed various courses. There is also before the Tribunal a statement from Theodora Famulari, psychologist, who refers to the applicant undertaken counselling and the distress he has experienced as  result of his actions. Ms Famulari has expressed the view that the applicant has expressed genuine remorse.

32. In his submission to the Tribunal the applicant provided evidence of having completed community work, as well as treatment and rehabilitation programs. There is a statement from the DCJ suggesting that the applicant had been assessed as being at low risk of reoffending and copies of the applicant’s communication with the program providers (letters of gratitude and letter of apology). The applicant told the Tribunal about the programs he had completed and he states that he has done the Community work hours and other programs. The applicant states that he is still under the Community Corrections order but he has complied with all the conditions and there is no supervision required.

33. The applicant states that he no longer consumes alcohol and has been contributing to the community through voluntary work (this is addressed more fully below).

    Past and present behaviour of the visa holder towards the department

34. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

35. The visa held by the applicant’s partner has been cancelled under s. 140.

    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

36. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he would have limited opportunities to make visa applications onshore due to the limitations imposed by s. 48. The applicant may also be subject to an exclusion period if he was to make an application offshore.

    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

37. There are no children who would be affected by the cancellation of the visa. The applicant told the Tribunal he would not be subjected to harm or persecution upon return to Nepal. While he did raise some concerns described above, the Tribunal does not consider these give rise to Australia’s protection obligations. On the evidence before it, the Tribunal does not consider that Australia’s non-refoulement obligations arise. As for the principles of family unity, the applicant and his partner hold temporary visas and both would be expected to leave Australia if their visas are cancelled. The Tribunal finds that Australia’s international obligations do not arise.

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

38. The visa in question is a temporary visa.

    Any other relevant matters

39. In his written submissions the applicant refers to his family composition and past study. He states that he is primarily responsible for his parents and grandparents. He also states that he and his wife and looking after his wife’s parents. In his submission to the Tribunal the applicant provided a number of medical records relating to his parents and parents in law. As noted above, the Tribunal accepts that the applicant and his spouse have responsibilities in relation to family members overseas and that hardship would be caused to them and relatives if the visas are cancelled.

40. In his response to the NOICC the applicant states that he has made a mistake and should not be punished unfairly. The applicant states that  the threshold for visa cancellation should not be ‘this much low’ in his case. The Tribunal is mindful that a ground for cancellation arises if the applicant has been convicted of an offence. It is not in dispute that in this case the applicant had been convicted of an offence. It is not in dispute that he held a temporary visa. It is unclear then why the applicant believes that the threshold for cancellation should not be so ‘low’ in his case.

1. The applicant states that the cancellation of his visa is not in the public interest as he is not a regular / repetitive offender and does not have a history of offending and is not dangerous to the public. The Tribunal considers these submission to be unhelpful and does not consider that the public interest is served only when repeated offenders have their visas cancelled.

2. In his written submission to the Tribunal of 7 September 2023 the applicant provided a number of character references from his friends, employer, co-workers and others who refer to the applicant being of good character and to his offending as being out of character. The Tribunal is prepared to accept that those who provided statements believe that the applicant is a person of good character.

3. The applicant provided evidence of being accepted as a Red Cross Volunteer. The Tribunal is mindful that the applicant appears to have started volunteering earlier this year and the Tribunal is concerned that  the applicant’s engagement in that activity is related to the visa cancellation process (ie the applicant had decided to become a volunteer in order to show evidence to the Tribunal of his contribution to Australia), given that the applicant has been living in Australia for a number of years and had not engaged in that activity in the past. Similarly, the applicant provided evidence of having become a Red Cross regular donor and it appears that this also was a recent engagement by the applicant and possibly in response to the cancellation of his visa. The applicant told the Tribunal that in the past he was too busy with study and then the legal matter but noting the period of time the applicant has spent in Australia without engaging in any voluntary activities, the Tribunal does not accept the applicant’s suggestion that there is no link between his engagement in voluntary activities and the visa cancellation process. Nevertheless, the Tribunal accepts that the applicant contributes to the community through these activities.

4. The applicant submits that the cancellation of his visa would be a disproportionate punishment for what he has done and would be an unfair punishment for his wife, who has not been involved in any wrong-doing. The applicant states that his wife has worked hard to complete her studies and the cancelation of his visa would shatter her dreams.

5. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant held a temporary visa and had been convicted of an offence. The Tribunal has found that there are grounds for cancelling his visa.

6. In considering whether the visa should be cancelled, the Tribunal has given significant weight to the following. Firstly, the Tribunal accepts that there would be significant hardship to the applicant and his partner if the visa is cancelled. The Tribunal accepts that the applicant has spent considerable resources in gaining his qualifications in Australia with the view of obtaining permanent residence. He would have limited opportunity to seek that visa if the present visa remains cancelled. There will be other repercussions, such as loss of future employment and study opportunities and financial implications if the couple were required to return to Nepal. In that regard, the Tribunal accepts that the applicant and his partner provide financial support to their families overseas. The Tribunal is prepared to accept that  there may also be hardship due to the pressure from the family and others, given the circumstances of the applicant’s marriage.

7. Secondly, and significantly in the Tribunal’s view, the cancellation of the applicant’s visa would be detrimental to his partner, who has not engaged in any conduct that could be considered anti-social or contrary to the Australian laws. The fact that the cancellation of the applicant’s visa would lead to the consequential cancellation of his wife’s visa is, in the circumstances of this case, is a significant factor against the cancellation.

8. Thirdly, in considering the circumstances in which the ground for cancellation arises, the Tribunal acknowledges that the offence was a single incident, there is no pattern of offensive behaviour and the applicant appears to have taken responsibility for his conduct and has taken steps to ensure there is no repeat of that behaviour. The Tribunal acknowledges that he pleaded guilty and engaged in rehabilitation programs and he claims he no longer consumes alcohol. He is assessed as being at a low risk of reoffending. The Tribunal acknowledges that, should the applicant reoffend, his visa may again be cancelled and future conduct may be taken into account in assessing if he passes the character test for the purpose of any future visa application.  

9. In the circumstances of this case, the Tribunal has decided to give greater weight to the factors that weigh against the cancellation, set out above. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   DECISION

10. 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.

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

    Kira Raif
    Senior Member