Khan (Migration)

[2018] AATA 4681

Khan (Migration) [2018] AATA 4681 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafeed Ayman Khan

CASE NUMBER:  1706152

HOME AFFAIRS REFERENCE(S):           BCC2017/826918

MEMBER:Mr S Norman

DATE:9 October 2018

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 October 2018 at 2:06pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – criminal convictions – similar offences on separate occasions – imprisonment – family disappointment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(g) of the Act on the basis the applicant was convicted of two criminal offences. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. By letter dated 4 September 2018 (dispatched by email), the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 9 October 2018. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  Two hearing reminder texts were sent to the applicant but both were recorded as having ‘failed to be delivered’.

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did he otherwise reply to the Tribunal’s hearing invitation letter (as he was requested). The Tribunal subsequently learnt the applicant departed Australia on 21 July 2017.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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(1)(g) of the Act. 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?

7. 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

8. The applicant was granted a Student visa on 3 December 2012. By Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 10 March 2017, the applicant was advised that information before the Department indicated he had been convicted of the following offences since being granted a Student visa on 3 December 2012:

   ·     Drive motor vehicle during disqualification period – second offence – date 19 August 2015

   ·     For this conviction, the applicant was sentenced to 8 months imprisonment commencing 16 September 2016 and concluding 15 May 2017; non-parole period with conditions …released subject to supervision

   ·     Drive motor vehicle during disqualification period – second offence – offence date 24 September 2015

   ·     For this conviction, the applicant was sentenced to 10 months imprisonment commencing 16 September 2016, concluding 15 July 2017. The non-parole period with conditions…release subject to supervision.

9. As the applicant had been convicted of the above offences, grounds existed under reg.2.43(1)(oa) to cancel his Student visa on 3 December 2012. Regulation 2.43(1)(oa) stated:

   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))…

10. In his response to the NOICC letter,[1] the applicant said the expiry date of his Student visa was 31 March 2018; and that he did not “disagree to the grounds for cancellation”.

    [1] Department – folio 30.

11. Based on the evidence before it, the Tribunal is satisfied the ground for cancellation in s.116(1)(g) of the Act, 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

12. 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’.

13. Regarding the purpose of the applicant’s travel to and stay in Australia, he was granted a Student visa on 3 December 2012. He said he had completed “more than half of his bachelors degree” and he now wants to complete his studies. In his response to the NOICC letter, he also said he had met the education requirements for his visa and the University staff wished him to return to complete his studies. Based on the evidence before it, the Tribunal accepts the applicant’s initial intention in travelling to and residing in Australia, was for the purpose of study.

14. Next, the evidence before the Tribunal indicated the applicant had been convicted for two separate offences, and had served a term of imprisonment.

15. Next, in his response to the NOICC letter,[2] the applicant said (words to the effect) he did not understand how severe his offence would be regarded; he had completed “more than half of his bachelors degree”; he worked part-time for an education consulting agency; driving was his passion; he now wants to complete his studies. The applicant also said he wants to qualify as an engineer and “carry on with … teachings back in Bangladesh”. He said in Bangladesh a bachelors degree from a foreign country like Australia was well regarded. He now regrets his actions. He also said it would be “very inconvenient for him to face deportation from [Australia] right after facing a big punishment” (meaning the aforementioned term of imprisonment).

    [2] Department – folio 30.

16. However, the evidence before the Tribunal indicated the applicant had been convicted of a similar offence on two separate occasions. The Tribunal accepts this indicates at least a reckless indifference to the laws of Australia.

17. Next, in his response to the NOICC letter,[3] the applicant said he “needs mental support to overcome the toughest time he ever faced in his life”. He said his family “rely and dream so much about a good future and career for him and have been in mental distressed”. He said they had “sent their hard earned money to him for the past four years from Bangladesh to pay for his tuition fees only so that he could afford the dream”. He does not want this money to go to waste.

    [3] Department – folio 30.

18. The Tribunal accepts the applicant and his family may be disappointed with him should his visa be cancelled. He may also be denied the opportunity to complete his degree in Australia. However, this is a possible consequence for breaching the criteria for the retention of a Student visa (particularly if the nature of the applicant’s offences were sufficiently serious to warrant imprisonment).

19. Next, if the applicant’s visa is cancelled, the Tribunal accepts that he or his family may suffer some hardship. He would also be subject to detention under s.189 and removal under s.198 of the Act. However, based on the information before the Tribunal I am not satisfied he would be subject to indefinite detention in Australia. The Tribunal believes he may have been able to temporarily retain his Bridging visa, in order to finalise his affairs prior to departing (though as noted above, the Tribunal understands the applicant departed Australia on 21 July 2017).   

20. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation.    

21. Regarding the circumstances in which the ground for cancellation arose, the applicant said that ‘driving was his passion’, and he was imprisoned for driving offences in Australia. The Tribunal has no material evidence the applicant has been uncooperative with either the Tribunal or the Department. The Tribunal does not understand that any other person’s visa would or may be impacted if the applicant’s visa is cancelled. Based on the evidence before the Tribunal, I am not satisfied that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

22. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mr S Norman
    Member