Kohli and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1326
•22 August 2017
Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326 (22 August 2017)
Division:General Division
File Number(s): 2017/1247
Re:Sumit Kohli
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member A Poljak
Date:22 August 2017
Place:Sydney
The decision under review is affirmed
........................[sgd] ................................................
Senior Member A Poljak
Catchwords
MIGRATION – mandatory cancellation – skilled visa - character test – substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – decision affirmed
Legislation
Migration Act 1958 ss 499, 501, 501CA
Secondary Materials
Direction no.65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member A Poljak
22 August 2017
The applicant, Mr Kohli, is a citizen of India who first arrived in Australia on 15 February 2009 as the holder of a student (TU-573) visa. Since then, he has held various visas. On 12 February 2014, he was granted a skilled nominated (SN-190) visa (“visa”).
On 24 August 2016, the applicant was convicted of the following:
(i)Drive with high range prescribed concentration of alcohol 2nd+off, for which he was sentenced to 18 months imprisonment with release subject to supervision and disqualified from driving for five years; and
(ii)Drive motor vehicle during disqualification period 2nd+ off, for which he was sentenced to 12 months imprisonment with release subject to supervision and disqualified from driving for two years.
On 24 August 2016, the Department of Immigration and Border Protection (“the Department”) issued the applicant a notice that his Visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
On 7 February 2017, a delegate of the Minister for Immigration and Border Protection (“Minister”), after consideration of representations made by the applicant, decided not to revoke the mandatory cancellation decision. This is the decision under review in these proceedings (“the reviewable decision”).
RELEVANT LEGISLATIVE PROVISIONS
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7).
Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction no.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“the Direction”).
CHARACTER TEST
The applicant fails the character test by reason of his August 2016 conviction and imprisonment, which meets the statutory definition of substantial criminal record in accordance with section 501(7)(c) of the Act.
The issue to be determined in these proceedings is whether the decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Act.
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C in order to determine whether to revoke the mandatory cancellation of the applicant’s visa.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
1The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
7The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations “should generally be given greater weight than the other considerations” and “one or more primary considerations may outweigh other primary considerations.”
The three primary consideration which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian Community.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…
2Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the Applicant's conduct to date
The applicant’s criminal history in Australia is extensive and is viewed very seriously. The National Police Certificate dated 20 September 2016, details the applicant’s criminal offending, which may be summarised as follows:
(i)on 19 June 2012, he was convicted of drive with low-range prescribed concentration of alcohol, for which he was fined $250 and disqualified from driving for 3 months;
(ii)on 16 October 2012, he was convicted of Drive with low-range prescribed concentration of alcohol, for which he was fined $1000 and disqualified from driving for 12 months;
(iii)on 22 April 2013, he was convicted of the following:
I.not keep left at median strip-motor vehicle, for which he was fined $200;
II.use uninsured motor vehicle, for which he was fined $550; and
III.use unregistered registrable motor vehicle, for which he was fined $550.
(iv)On 17 June 2013, he was convicted of the following:
I.drive while under the influence of alcohol or other drugs, for which he entered into a good behaviour bond, was subjected to 3 years supervision by NSW Probation, and disqualified from driving for 2 years;
II.drive while disqualified from holding a licence, for which he entered into a good behaviour bond, was subjected to 3 years supervision by NSW Probation, and disqualified from driving for 2 years; and
III.fail to appear in accordance with bail granted undertaking, for which he was convicted with no other penalty.
(v)On 11 March 2016, he was convicted of the following:
I.Drive with high range prescribed concentration of alcohol 2nd+off, for which he was sentenced to a 12-month intensive correction order, directed to complete a sober driver program, disqualified from driving for 9 months, and required to undertake alcohol interlock program for 48 months;
II.Drive motor vehicle during disqualification period 2nd+off, for which he was sentenced to a 6-month intensive correction order and disqualified from driving for 2 years;
III.knowingly make false/misleading statement, for which he was convicted with no other penalty;
IV.goods in personal custody suspected of being stolen, for which he was fined $400 and directed to return the property to the owner;
V.the 17 June 2013 conviction for drive while under the influence of alcohol or other drugs was “called up” due to the breach of the good behaviour bond, and for the charge he was sentenced to a 4 month intensive correction order and directed to complete the sober driver program; and
VI.the 17 June 2013 conviction for drive while disqualified from holding a licence was "called up” due to the breach of the good behaviour bond, and for it, he was sentenced to a 4-month intensive correction order and directed to complete the sober driver program.
(vi)On 24 August 2016, the applicant was convicted of the following:
I.Drive with high range prescribed concentration of alcohol 2nd+off, for which he was sentenced to 18 months imprisonment with release subject to supervision and disqualified from driving for five years; and
II.Drive motor vehicle during disqualification period 2nd+ off, for which he was sentenced to 12 months imprisonment with release subject to supervision and disqualified from driving for two years.
Paragraph 13.1.1 the Direction sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the applicant’s criminal offending or other serious conduct.
The laws against driving under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant’s offences of driving under the influence of alcohol are serious and show reckless indifference to the safety of the wider community. The offences of knowingly making false/misleading statement and goods and personal custody suspected being stolen are also serious. When viewed as a whole, the applicant’s history of driving offences evidences a serious pattern of ongoing disregard for the laws of Australia and accepted community values. The applicant concedes that the offences are serious.
The seriousness of the applicant’s offences is aggravated by their frequency and trend of increasing seriousness. The applicant has five drink-driving convictions of increasing seriousness. Also of serious concern is the number of offences related to driving a motor vehicle during disqualification period. Despite being disqualified from driving, the applicant was not deterred from committing further offences. He has also breached a number of good behaviour bonds. The cumulative effect of the applicant’s repeated offending is such that the applicant’s conduct should be viewed as serious.
It is plain from the applicant’s criminal record that alcohol plays a significant role in his offending. At hearing the applicant said that he only committed the offences because he was drunk and would not make the same mistakes if he was sober. I do not accept this submission for the following reasons.
On 11 March 2016, the applicant was charged with the offences of “knowingly making false/misleading statement” and “goods in personal custody suspected been stolen”. At the hearing the applicant advised that he had in his possession a driver’s license and a pension concession card which belonged to a friend. When he was questioned about why he had his friends ID in his possession, he said that he had the driver’s licence “to show, if he needed it” and had the pension concession card “as additional ID if someone asked”. It became clear at the hearing that the applicant had these forms of identification in his possession to show to the police if needed because he knew that he was disqualified from driving. I find this evidence very concerning as it shows a complete lack of regard for the laws of Australia. It shows intention and forethought on how the applicant could avoid prosecution if caught driving while disqualified.
Additionally, the applicant advised at hearing that in 2016 he was employed as a pizza delivery driver. Despite saying that this was not his main job, he conceded that he was a delivery driver on a part-time basis; flaunting his driving ban. He was adamant that he never worked as a delivery driver while intoxicated but conceded (reluctantly) that he did work when sober. The applicant’s New South Wales driver’s license had been disqualified as of 16 October 2015. The applicant’s employment as a pizza delivery driver, when his driver’s license was disqualified, shows a blatant disregard for the law.
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The nature of the harm to the Australian community should the applicant engage in further criminal and/or serious conduct of the nature in which he has engaged in the past, would be serious, and perhaps extremely serious.
The applicant has provided a number of handwritten statements in these proceedings which I have read and considered. In his statements he expresses remorse and says that he will never commit an offence again. He says that his time in custody has “opened his eyes” to his mistakes and the potential consequences of his actions if he were to reoffend. In his statements he also speaks of his plans for the future and how he has addressed his issues with alcohol.
I acknowledge the applicant has completed a number of programs and courses in prison. He has also been attending alcohol anonymous meetings and narcotics anonymous meetings.
I accept that he has no criminal intention and wishes to rehabilitate himself, however, I note that he has had opportunities in the past to adhere to intensive correction orders and complete sober driving programs, but has subsequently reoffended. Further, the applicant’s imprisonment means that his claimed rehabilitation and resolve to “not drink-driving again” and “to never break any law again” has not been tested in the Australian community.
Having regard to all of the evidence before me and the applicant’s extensive record of criminally offending, I am of the opinion that there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past; posing a significant risk of substantial harm to the Australian community.
The risk to the Australian community weighs heavily against a decision that the applicant’s visa not be cancelled.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
There is no evidence that the applicant is the father, or has parental responsibility, of any minor children in Australia. This primary consideration is not relevant to the applicant’s circumstances.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In making the Direction, the Minister has made it clear that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.
Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. The applicant has repeatedly breached the trust of the Australian community by committing offences of a type that could endanger the safety of members of the community.
I acknowledge that the applicant has made a positive contribution to the Australian community as a teacher and tutor. He holds a Graduate Diploma in Education and a Master of Education from La Trobe University. He has extensive working experience in education and tutoring.
On balance, given the applicant’s repeated offences, and the fact that they include breaches of court orders and offences of dishonesty, I am satisfied that the Australian community would not expect the applicant to hold a Visa.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65
Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked include the strength, nature and duration of his ties to Australia and the extent of impediments if the applicant were removed from Australia.
Other considerations such as international non-refoulement obligations, impact on victims and the impact on Australian business interests are not relevant considerations in these proceedings.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has resided in Australia for eight years and it is conceded by the Minister that during this time, the applicant would have established some ties to Australia.
As a ready stated at [35], the applicant has made a positive contribution to the Australian community as a teacher and tutor.
I do acknowledge that the applicant’s younger brother resides in Australia and he has expressed a desire for the applicant to remain in Australia. The applicant’s removal to India may cause a physical separation from his brother. However, there is no evidence before the tribunal to suggest that his brother would be unable to visit him in India were to relocate to India with him nor is there any suggestion that the applicant will be unable to maintain contact with his brother in other ways. While this favours the applicant, it is significantly outweighed by the relevant primary considerations.
Extent of impediments if removed
I note that the applicant has concerns about returning to India because he will be a burden on his old parents and it would be tantamount to shame and disgrace for the entire family. He claims he will be ostracised, shunned, and mocked and would have to start again India.
While the applicant may well face some initial difficulty re-establishing himself in India, the extent of the impediment is unlikely to be significant. He has extensive University qualifications and work experience. His parents reside in India and he would not encounter any language or cultural barriers. Accordingly, I do not consider that this factor outweighs the primary considerations.
CONCLUSION
For all of the above reasons, I am satisfied that the decision to not revoke the cancellation of the applicant’s visa is the correct decision.
The decision under review is affirmed.
47. I certify that the preceding 46 paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak
.............................[sgd]...........................................
Associate
Dated: 22 August 2017
Date(s) of hearing: 11 May 2017 Applicant: In person Solicitors for the Respondent: Mr K Eskerie and Ms M Wells, Sparke Helmore
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