KHAN (Migration)

[2024] AATA 1071

KHAN (Migration) [2024] AATA 1071 (3 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sardar Ali KHAN

REPRESENTATIVE:  Mrs Yojana Pareek (MARN: 1575202)

CASE NUMBER:  2313413

HOME AFFAIRS REFERENCE(S):          BCC2023/2641610

MEMBER:Kira Raif

DATE:3 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 03 May 2024 at 2:27pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – applicant convicted of criminal offences – opportunity to pay court fines – enrolment in a registered course – current Student visa application – plans to travel overseas – decision under review affirmed                 

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 28 August 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A, BVA) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of India born in September 1986. He was granted a BVA in May 2020 in relation to his application for a Student visa. In June 2023 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as he had been convicted of offences. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 24 April 2024 to give evidence and present arguments. The applicant was represented in relation to the review. At the conclusion of the hearing the applicant’s representative requested time to provide written submissions. At the representative’s request, the Tribunal granted the applicant until the end of 2 May, stating that the Tribunal would then proceed to decision on or shortly after 3 May 2024. At the time of this decision, no further submissions have been received from the applicant or his representative.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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. 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.

6. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). Regulation 2.43(1)(oa) provides the following.

   (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 the following:

   (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))

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the Department received information that on 17 April 2023 the applicant was convicted of the following offences in the Local Court at Sutherland

   -Common assault  $3000 fine

   -        Sexually touch another person without consent       3 year CCO

8. In oral evidence the applicant told the Tribunal that ‘it is not how it seems’ and the victim had made up a story while the CCTV camera was not working. The applicant states that the victim was not working properly on the day and was ‘mucking around’ and he warned her that he might report her. The applicant denies having done what he is claimed to have done.

9. The Tribunal acknowledges the applicant’s evidence but cannot go behind the conviction. In the Tribunal’s view, the fact of the conviction indicates that the offences had been committed. There is no suggestion that the convictions had been overturned.

10. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary (Bridging A) visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

    Consideration of discretion

11. 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

12. The applicant claims he is in Australia in order to complete his study. In his response to the NOICC the applicant states that his Student visa was refused in April 2023 and the matter is presently before the Tribunal. The applicant also submits that he wants to repay the $3000 fine imposed by the court and complete his Community Corrections Order.

13. In oral evidence the applicant stated that he had completed a course and is presently undertaking a Graduate Diploma of Advanced Leadership and Management which he will complete in August 2024. He then plans to either return home or undertake another course.

14. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia if he intends to complete his studies. However, the Tribunal is also mindful that the processing of the applicant’s Student visa application will continue irrespective of the present decision and the applicant will be able to remain in Australia – again, irrespective of the outcome of the present review – until his application for the Student visa is finally determined. The applicant’s evidence to the Tribunal is that he had been granted a Bridging E visa which allows him to study and work and thus the applicant is able to fulfil the purpose of his travel and stay in Australia irrespective of whether or not he holds a BVA.

15. On the evidence before it, the Tribunal is of the view that whether or not the applicant has a compelling need to remain in Australia, he will be able to remain in Australia as a holder of a BVE until his application for the Student visa is finally determined.

    The extent of compliance with visa conditions

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

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

17. In his response to the NOICC the applicant refers to his mother’s poor health and states that   her health may deteriorate by the decision to cancel his visa. It is not entirely clear to the Tribunal why that would be the case and the applicant’s assertion is not supported by any probative evidence such as a medical report. The Tribunal considers the applicant’s evidence particularly problematic as the cancellation of the BVA does not equate to the applicant having to depart Australia. The applicant has been granted another Bridging visa and he is able to remain in Australia to await the outcome of the application for the Student visa. The Tribunal is not convinced that the applicant’s mother would be fully cognisant of the intricacies of the Australian immigration laws in relation to different types of bridging visas. The Tribunal does not accept that the health of the applicant’s mother would be adversely affected if the applicant’s BVA is cancelled.

18. The applicant claims in his response to the NOICC that he wants to complete his study in Australia before returning to his home country. The applicant states that he also wants to complete the Community Corrections Order and repay the fine. The Tribunal is mindful that the applicant’s ability to remain and study in Australia is dependent on him having a substantive visa. The BVA would not permit the applicant to pursue his goals and it is merely a means of enabling the applicant to await the outcome of his Student visa application. Until the Student visa application is resolved, the applicant has been granted a BVE with permission to study.

19. The applicant told the Tribunal that he cannot travel on his present BVE and he thought he might travel overseas to visit his family before continuing with his study. He states that he has not seen his family since 2019 and that is causing tension. The Tribunal accepts that if the applicant’s BVA is not reinstated, he will not be able to travel overseas until he is granted a substantive visa. The applicant has not expressed his desire to travel in his responses to the NOICC and has not provided any evidence of having made travel arrangements. The Tribunal is also mindful that since the borders reopened following COVID, the applicant would have been able to travel overseas and had not done so. In these circumstances, the applicant’s recently expressed desire to travel overseas is somewhat questionable. The applicant told the Tribunal that he experienced financial hardship in the past but has some savings now but he presented no evidence (such as bank records) to support these claims.

20. The Tribunal accepts that the applicant would be unable to travel overseas while holding the BVE and accepts that it may cause some hardship to the applicant and his family but the Tribunal is mindful that this would be a temporary limitation until the application for the Student visa is resolved. In the Tribunal’s view, in the circumstances where the applicant’s ability to travel overseas is restricted for a limited period of time, such restriction may cause some hardship but not a significant degree of hardship.

21. The applicant states that if his visa is cancelled and if he has to leave the country, all his goals would be ‘crashed’ as he had put all his efforts into his education. The Tribunal does not accept that evidence because, as noted elsewhere, the applicant will not be required to leave Australia as a result of the cancellation of his Bridging A visa. He can continue with his studies on the Bridging E visa (as he has been doing so far) and, if he is eventually granted the Student visa, that would also allow him to continue with the study. If the Student visa is not granted, the applicant will not be able to remain in Australia and study in Australia irrespective of the outcome of this review.

22. The applicant refers to his profile being affected and he states that if he were to apply for a visa in another country, the visa cancellation and his conviction would come up and would be used against him. Whether or not that is the case, the applicant’s conviction is not a matter for the present Tribunal. The Tribunal acknowledges that the cancellation of the visa may affect future visa applications both in Australia and possibly in other countries but the Tribunal is of the view that it is the conviction that may have a more detrimental effect on visa applications to other countries. That is, there may be adverse consequences whether or not the applicant’s BVA is reinstated.

23. The applicant’s representative refers to the applicant’s faith stating that the nature of the conviction is such that his family and the community may be against him. The representative submits that the applicant should have the opportunity to travel to his home country and explain the situation to his family and others. As noted above, the applicant’s conviction will remain whether or not the applicant’s BVA is cancelled. As for the applicant’s ability to travel and offer explanations to his family, the Tribunal is mindful that  the applicant made no effort to do so in the past. The Tribunal is also of the view that the applicant would be able to communicate with his family and community members by electronic means or travel at a time when his Student visa application is determined. The applicant also has the option of leaving Australia now and returning if his Student visa is reinstated. In these circumstances, the Tribunal does not consider that travel limitations would cause significant hardship to the applicant.

    Circumstances in which ground of cancellation arose.

24. The ground for cancellation arises because the applicant was a holder of a temporary visa and had been convicted of an offence.

25. The applicant provided to the Tribunal Advice of Court Results, as well as the NSW Police Facts Sheet. It records that the applicant worked as a shift supervisor at a Pizza Hut restaurant where the victim commenced employment. It is recorded that while in the restaurant, the applicant hugged the victim and the victim felt the hug was tight and prolonged, causing her to feel uncomfortable. At a later time, the applicant is reported to have approached the victim and put a hand on each side of her head, kissing her on the cheek. The victim stated that this made her feel uncomfortable. The applicant asked her not to tell anyone. It is reported that on another occasion, the victim walked past the applicant and he slapped her on the buttocks with an open hand. It is stated that during the police interview, the applicant agreed that he put his arm around the victim in an attempt to comfort her but denied kissing her or slapping her on the buttocks.

26. In his submission to the delegate the applicant claims that he “accidentally bumped into the girl” while working in a shop and there was no CCTV available in the shop and he could not locate a witness to support him. The applicant claims that others gave incorrect statements to the court leading to his conviction and he could not afford to lodge an appeal. In oral evidence to the Tribunal the applicant also denied that he had committed any offences and he states that the information given to the court was incorrect but there was no CCTV. The applicant stated that he would not do such a thing knowing the repercussions and he states that ‘this is not a person he is’. The applicant states that he did scold the victim as she was not performing her job but nothing else had happened, he has always been good to people and has never had any issues with the law. The applicant states that what has happened has affected him personally and ‘put a stop on his career’.

27. The Tribunal finds the applicant’s explanations unpersuasive as the Tribunal does not accept that the applicant would have been convicted of the offences because he had accidentally ‘bumped into a girl’ in a shop while turning or because others had lied and there was no benefit of CCTV recording. The fact that the applicant had been convicted of the offences indicates that the commission of the offence was proven beyond reasonable doubt. The Tribunal considers the fact of the conviction as evidence that the offence had been committed. The applicant’s denial of the offending conduct is of concern to the Tribunal.

    Past and present behaviour of the visa holder towards the department

28. Nothing adverse is known about the applicant’s past and present conduct.

    Whether there would be consequential cancellations under s 140

29. As the visa in question is a BVA which has no secondary criteria, there would be no consequential cancellations 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

30. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. The applicant’s evidence to the Tribunal is that he has been granted a Bridging E visa and he is not an unlawful non-citizen. The applicant also has an outstanding application for the Student visa and that process is independent and would likely permit the applicant to remain in Australia until the application is finally determined. Nevertheless the Tribunal acknowledges that if the applicant is not granted another visa, there is a possibility that he may become an unlawful non-citizen and detained. The cancellation of the visa will also result in the application of s. 48, limiting the applicant’s options of applying for another visa onshore (the Tribunal is mindful that s. 48 already applies to the applicant due to the refusal of his Student visa application), and the application of an exclusion period in relation to offshore applications.

    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

31. The applicant told the Tribunal that he has two minor children in India. He states that if his visa is cancelled, it would ‘break him on the inside’ and his ability to motivate himself. He states that he has not done anything wrong and the circumstances would indirectly affect his children and his family. He states that he wants to get better education for his children. The applicant states that these things are affecting his confidence and ‘break him in various ways’ and might ruin his life if his children find out about his conviction. However, the issue here is not the applicant’s conviction but the cancellation of his bridging visa. The Tribunal does not consider that the applicant’s children have any interest in the type of visa the applicant is holding.

32. The Tribunal accepts that unless the applicant’s visa is reinstated, he will not be able to travel overseas and return to Australia. The applicant refers to the tension in his marriage because of his separation from his family. As noted above, the applicant’s evidence is that he has not travelled to India for several years, well before his visa was cancelled and it appears to be his own decision to remain in a different country away from his family. As noted elsewhere, the applicant has other ways of communicating with his family and he is able to depart Australia at any time (even if his ability to return to Australia may be limited unless he is granted a substantive visa). In such circumstances, the Tribunal is not satisfied the best interests of the applicant’s children will be adversely affected by the cancellation of his visa.

33. The applicant initially told the Tribunal that he would not be subjected to any form of harm or persecution if he was to leave Australia. However, on advice from his representative, the applicant later submitted that the type of his convictions is contrary to his faith and he lives in a predominantly Muslim area. The applicant states that his family would be directly or indirectly affected and the community may take a negative view. However, the Tribunal is mindful that the cancellation of the BVA will not result in the applicant having to leave Australia as he is holding a BVE and is awaiting the outcome of the review on the Student visa application. In these circumstances the Tribunal does not consider the cancellation of the visa will result in the breach of Australia’s non-refoulement obligations.

34. The applicant has no family in Australia and the Tribunal finds that the family unity obligations will not be affected.

1. The Tribunal finds that Australia’s international obligations will not be breached if the visa is cancelled.

   Any other relevant matters

2. The applicant provided to the Tribunal evidence of having completed his community service and the Tribunal accepts that evidence. The applicant also provided a number of character references. The Tribunal is prepared to accept that those who provided references believe the applicant to be of good character.

3. The applicant states that he has not seen his wife and children for a number of years and his marriage has been affected. The Tribunal accepts that if the visa remains cancelled,  and unless the applicant is granted a substantive visa, he will not be able to travel to India to see his family and return to Australia. The Tribunal is mindful that the applicant had indicated in his submission to the delegate that he intended to return to his home country upon completion of the current course and he has the option of leaving Australia at any time. The applicant told the Tribunal that he might now wish to pursue further study in Australia because he believes he would be able to support this family better and the Tribunal acknowledges that this may prolong the applicant’s separation from his family, although as noted above, the limitation on the applicant’s travel is temporary until a decision is made on his Student vias application.

4. The applicant told the Tribunal that he has been in Australia for seven years and has not done anything wrong except for the convictions. The Tribunal acknowledges that evidence.

5. The applicant states that he lives in a  Muslim area in Hyderabad and his family would be affected because of the nature of his convictions. If he is able to travel, he would be able to explain the situation to his family and his community and ‘show his face’. The applicant states that he has not seen his family for a long time and his wife and parents in law are getting nervous and have threatened him with divorce. As noted above, the Tribunal accepts there will be some hardship with the applicant’s inability to travel and see his family. However, the Tribunal is of the view that much of that hardship results from the conviction, rather than the cancellation of the visa. As for the applicant’s inability to travel, it is a temporary measure until his application for the Student visa is determined.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa as he held a temporary visa and had been convicted of an offence. The Tribunal accepts that some hardship may be caused to the applicant and his family by the cancellation of the visa, most notably because the applicant will not be able to travel overseas until he is granted a substantive visa and his separation with his family and the community will continue.

7. The Tribunal has formed the view that Australia’s international obligations will not be breached as a result of the cancellation. The Tribunal finds that while the applicant is fulfilling the purpose of his stay in Australia, he will be able to continue to remain in Australia and pursue his study. There will be legal consequences as a result of the cancellation but many of these arise due to the refusal of the Student visa.

8. In the circumstances of this case, the Tribunal has decided to give the greatest weight to the circumstances in which the ground for cancellation arises. The convictions for common assault and sexually touching another person are serious, in the Tribunal’s view. The events occurred in circumstances where the applicant was a shift supervisor to a young female worker on her first shift. The applicant’s ongoing denial and claims that he had done nothing wrong, despite the convictions, suggests that he lacks insight into the offending conduct and its potential consequences for the victim. The Tribunal has decided to give this factor the greatest weight.

9. Considering the circumstances as a whole, the Tribunal has decided that the visa should be cancelled.

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kira Raif
    Senior Member