Kumar (Migration)

Kumar (Migration) [2020] AATA 3586 (25 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Vishal Kumar
CASE NUMBER:  1926231
HOME AFFAIRS REFERENCE(S):          BCC2019/2804579
MEMBER:Kate Millar
DATE:25 June 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 25 June 2020 at 4:03pm
CATCHWORDS
MIGRATION– cancellation– 457 (Temporary Work (Skilled)) visa – applicant has been convicted of offences – misuse of alcohol –applicant is the spouse of primary visa holder – relationship ceased –decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, r 2.43
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Kumar came to Australia in 2008 as a secondary applicant on his wife’s Subclass 573 (Student) visa. On 2 November 2016, he was granted a Subclass 457 (Temporary Work (Skilled)) visa, again as a secondary applicant on his wife’s visa.
On 27 October 2017, Mr Kumar was convicted of offences including driving under the influence and while disqualified, aggravated driving without due care, and various other offences relating to motor vehicles and sentenced to 8 months and 2 weeks’ imprisonment.
A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs cancelled his visa on 30 August 2019 on the basis that he had been convicted of an offence against a law of South Australia.
The issue in this matter are whether this ground is made out and, if so, whether his visa should be cancelled. Mr Kumar concedes that a ground exists to cancel his visa but submits that his visa should not be cancelled.
HEARING
Hearings were held on 23 April 2020 and 21 May 2020, and Mr Kumar attending the hearing to make submissions and give oral evidence. He was represented by his registered migration agent. The Tribunal also heard from friends of Mr Kumar: Mr Pankaj Sharma and Mr Rajwinder Kumar. The Tribunal was assisted by an interpreter in the Hindi and English languages.
Mr Kumar sought material summonsed from Correctional Services and the Prisoner Health Service. A copy of the summonsed material was provided to him through his representative.
Infromation from the Correctional Services information was put to Mr Kumar under s.359A of the Act. Specifically, this was:
1.You did not enrol in any rehabilitation courses while in prison;
2.The South Australian Prison Health Service file does not refer to any ongoing heart issues or liver damage, or note any ongoing medication for treatment of these issues;
3.On 9 April 2018, the Case Manager discussed with you your management of emotions and directed you to attend your General Practitioner as soon as possible and obtain a Mental Health Care Plan and a referral to a Psychologist to deal with your emotions during the difficult time with your wife and to address your alcohol misuse issues. The Case Manager explained that you used alcohol as a coping mechanism when dealing with high stress and emotional issues and you must now be acutely aware of this and not use anymore alcohol. You agreed and said you would not drink anymore; and
4.The Department of Correctional Services records contains an entry dated 20 June 2019:
Vishal was considered a challenging individual during supervision who struggled to develop insight into his alcohol mis-use issues. He appeared to say what he thought the Case Manager wanted to hear rather than what was actually occurring. Vishal tested positive for alcohol on 09/04/2018 in contravention of his bond conditions. He was issued a written warning at that time and warned any further positive test would result in breach action. Vishal did attend the Road Awareness Program as directed but was resistant to undertaking psychological or AOD counselling, stating that he had achieved abstinence from alcohol use. In the later stages of his order Vishal incurred further charges relating to domestic violence and breaches of IO's in which his estranged wife was listed as the alleged victim. These actions resulted in Vishal being placed in custody and the matters remain pending. Little if any progress appears to have been made on this order and Vishal appears an unlikely candidate to develop insight into his issues.
On this information being provided to Mr Kumar, he submitted that incorrect health records had been provided to the Tribunal, and what had been provided were the health records of a different person. The Tribunal accepts this is correct and has disregarded these documents. On further enquiries being made of the Prisoner Health Service, the correct file was provided for Mr Kumar, and a copy of this file was provided to his representative.
The documents provided by the Department of Correctional Services are for the correct person.
Information from the health record was also put to Mr Kumar under s.359AA of the Act at the hearing. This information was recorded in the reasons for refusing bail that was included in the health records. This was:
Previous allegations of assault against family member, Avantika THAKAR, daughter, with headphones and leather belt, in September 2013. Conviction history shows constant problems with abuse of alcohol (PCA, DUI, due care, etc.)
Intervention order issued and served March 2019. Accused arrested in relation to multiple allegations of breach of I/O, including threatening to kill the victim in this matter via telephone call.
It was explained that this would be the reason or part of the reason for affirming the decision under review as it was relevant to whether his visa should be cancelled.
In response, Mr Kumar said the charges relating to his daughter occurred in 2013 and were withdrawn, and there were no charges against him from his daughter. He said in 2019 his wife alleged he had made threats to kill her over the phone. He said he did not threaten her. The charges against him in 2019 were that he had breached the intervention order by being within 200 metres of her house and interference with a motor car.
Further information from the health records was separately put to Mr Kumar under s.359AA of the Act. This was information contained in a care plan dated 27 May 2019 and a nursing note dated 9 September 2017. The care plan is contained in a South Australia Police detainee transfer form. This states Mr Kumar denied alcoholism and refused to disclose the true amount he had consumed (he stated 1 bottle of wine, and provided a sample of 0.213). A nursing note dated 9 September 2017 states Mr Kumar has a past history of alcohol related admissions in the previous 3 to 4 years, including an ICU admission with a blood alcohol level of 0.417 requiring intubation. He initially stated he drank an occasional bottle of wine but admitted more frequent use when challenged and reported 1 to 2 bottles of wine 4 to 5 days per week.
Mr Kumar was advised that if it relied on this information, the Tribunal would find he has an ongoing and intractable problem with alcohol with no history of abstaining from alcohol use in the community. In response, Mr Kumar said it was true he had alcohol problems in the past, but that he now realised that alcohol had ruined his life. He said he is now 100% sure he is not dependent on alcohol because alcohol has separated him from his family, and he had to go to gaol. Now his visa has been cancelled he knows the serious consequences and alcohol has no place in his life. He said that he has been in prison or detention for the last year and can now sleep well and his health is better. He said his mental balance is better and he is no longer dependent on alcohol. For the next 18 months he is subject to a supervision order with correctional services and will have to spend that period without alcohol.
Mr Kumar provided a further statement after the hearing, and states that following his incarceration in 2017 and as part of his rehabilitation he was assigned a case manager to assist him to put steps in place to address his misuse of alcohol. He states he genuinely intended to stay sober, but the breakdown of his relationship in 2019 caused him to relapse. He has now been sober for a year since he was arrested. He states he is trying to put steps in place so he will not relapse again. He adds that in 2018 he was not as aware of the true nature of his addiction as he is now, and he has had to suffer the serious consequences of his misusing alcohol including the loss of his family, his incarceration and the cancellation of his visa. He states his previous offending has all been a direct result of his misuse of alcohol and that by addressing this issue he is certain he will not reoffend. He disputes any suggestion that he is a significant risk of reoffending.
A third set of information was separately put to Mr Kumar under s.359AA of the Act. This was on letterhead of South Australia Police, and contained in the summonsed Correctional Services documents provided to Mr Kumar. This document starts under the heading “Facts of Charge” and details a series of incidents between 15 and 21 March 2019.
Mr Kumar said he was not convicted of the charges alleged in this document and charges were withdrawn due to insufficient evidence. He said the convictions recorded in the police check were for incidents on 27 May 2019. He said these were charges of breach of intervention order, interference with a motor vehicle and 2 charges of drink and drive. He said now his mental balance is much better and he is confident he would not do such things in the future.
Mr Kumar was provided the opportunity to submit further information after the hearing, including the sentencing remarks for his offences, to clarify whether information in the “Facts of Charge” document relate to his convictions. He provided the decision of Magistrate Fisher in Police v Kumar dated 3 February 2020. The sentencing remarks include offences on 24 January 2019 and 4 April 2019. In regard to a third set of offences, the date of the offences appears to be 27 May 2019, being the date he was taken into custody. The facts specified by Magistrate Fisher for those offences are different to those recorded in the “Facts of Charge” document. As a result, and as the Tribunal has the benefit of the sentencing remarks, it has disregarded the SA Police document and instead has looked to the sentencing remarks for the circumstances of the offences.[1] It has had no had further regard to charges that have been laid and withdrawn, or where no conviction was recorded.
[1] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 at paragraph 40
CONSIDERATION OF CLAIMS AND EVIDENCE
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. The grounds include the ground set out in s.116(1)(g). If satisfied that a 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?
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(oa) applies. This prescribes a ground for cancelling the visa where the holder of a temporary visa (other than particular visa subclasses not relevant to Mr Kumar) has been convicted of an offence against a law of the Commonwealth, a State or Territory, regardless of whether the holder held the visa at the time of the conviction and regardless of the penalty imposed.
At the time Mr Kumar’s visa was cancelled, he held a Subclass 457 visa, which is a temporary visa.
The delegate relied on Mr Kumar’s convictions on 27 October 2017 for the following offences:
·drive without due care -aggravated offence;
·drive under the influence;
·due care – aggravated offence (2);
·drive under the influence (2);
·drive under disqualification or suspension (2);
·misuse motor vehicle – sustained wheel spin;
·drive unregistered motor vehicle on a road;
·contravene defect notice code of practice;
·alter, obscure or remove a defect notice from a vehicle;
·fail to answer question on trade plates or vehicle driver;
·state false personal detail.
Mr Kumar was sentenced to a term of imprisonment of 8 months 2 weeks, to be released after serving 3 months 2 weeks on payment of a bond and to be of good behaviour for 18 months with conditions and supervision. Several terms of disqualification from holding a driver’s licence were imposed, with the total disqualification period being 7 years and 6 months, as well as fines totalling $1,300 and 120 hours of community service.
Since this time, Mr Kumar has been convicted of further offences. He provided a current National Police Check. After his release from prison, further convictions were recorded on 3 February 2020 for:
·contravening an intervention order,
·interfering with a motor vehicle without consent,
·driving with excess blood alcohol,
·driving under the influence; and
·2 counts of driving under disqualification.
At this time, there was also an application for enforcement of a breached bond. He was sentenced to a total of 9 months, 6 weeks and 5 days’ imprisonment (including 5 months after the revocation of the suspended sentence) from 27 May 2019 when he was taken into custody and disqualified from driving for 3 years. Approximately 2 and a half months of his sentence was suspended due to the importance placed on supervision after release and t was subject o comply with conditions of a bond not to consume alcohol.
As Mr Kumar has been convicted of offences against the law of South Australia, the ground in s.116(1)(g) to cancel his visa has been established.
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
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’.
Mr Kumar was born in in India and has 2 sisters. He studied in India and completed a Bachelor of Science. He first arrived in Australia in 2008 on a Subclass 573 student visa as a secondary applicant and held 4 successive student visas as a secondary applicant before being granted a Subclass 457 visa, again as a member of his wife’s family unit. It is submitted that since arriving he has been employed or worked as a contractor at all times, other than when he was incarcerated, and has been the main financial support for the family.
Mr Kumar said his visa should not be cancelled because he is here in Australia and has sold his house and business in India to migrate to Australia with his family. He said he no longer had anything in India and has nowhere to live. He said he has been working in Australia for 12 years and has a good connection with people and with his community. He says he has only returned to India once since coming to Australia, and his children have been brought up here.
It was submitted on Mr Kumar’s behalf that he has made a contribution to Australia, as when he was in business, he had vehicles and many Australian employees. When he was in a partnership in business in 2017, he employed 22 people. He been involved with the India Australia Association of South Australia and states he assists with community events.
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
Mr Kumar said he came to Australia for a good life and good health, and for the education of his children. He also came to have some goals, which he said were to do community services and be a good human being. On being asked how his convictions reflected those goals, he said that now he is a good human being and will try to handle things in a better way.
Mr Kumar is in Australia as the spouse of his wife, who is the primary visa holder of the Subclass 457 visa. Mr Kumar says he separated from his wife in May 2019 when he was arrested. It was put to him that if he has separted from his wife, the basis on which he held the visa no longer exists, which would support cancelling his visa. It would itself form another ground for cancelling his visa under s.116(1)(a). As noted by his representative, the discretion exists apart from any ground established to cancel a visa.
However, Mr Kumar is no longer in Australia for the purpose for which the visa was granted. This weighs heavily against Mr Kumar and in favour of cancelling the visa.
Mr Kumar said he should be given an opportunity to lodge a visa application on his own behalf, but could not identify what he may apply for and said he would meet with an immigration lawyer to decide what is suitable.
Mr Kumar states he wants to remain in Australia to financially support his children so they can access higher education, and that he intends to take steps to re-establish contact with his children. He said if he does not remain and assist to support his children he has no purpose. He said he has no future in India and may be unable to get a good job.
Mr Kumar is currently prevented from approaching his children under the terms of the intervention order. He states he will seek to have the intervention order revoked on his release from detention. There is nothing before the Tribunal to indicate the wishes of his children to re-establish contact with him. His daughter is now an adult and his son is 16 years of age. The Tribunal considers they are of an age where they can independently establish contact with him by electronic means, or by returning to India, and is not satisfied this has been established as a compelling reason to remain in Australia. The rights of his son are separately considered below.
The Tribunal does not consider that individual or cumulatively, Mr Kumar being given an opportunity to apply for another visa, the financial support of his children, or in the circumstances, his desire to re-establish contact with his children are compelling reasons to remain in Australia.
The extent of compliance with visa conditions
Mr Kumar said to the best of his knowledge he has complied with the conditions of his visa. The delegate notes he failed to notify the Department of his relationship breakdown or apply for a different visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
Mr Kumar states he has health problems due to his alcohol intake and has liver damage. He wants to remain in Australia so he can have treatment as he considers the facilities in India are not as good. He said when he was in prison he was given medication for liver problems.
On being asked when he first saw a doctor about his liver, he said this was when he was in prison. Prior to the hearing, Mr Kumar had provided a letter dated 9 May 2019 from Dr Manyank Bibra, a psychiatrist whose practice is located in India. Dr Bibra provides a diagnosis of alcohol dependence with depressive features. Dr Bibra prescribes 3 different medications for Mr Kumar. On this being put to Mr Kumar, he said he returned to India for 4 weeks in 2019 and while he was there, he had a general check-up. He said he did see a doctor about his liver problems.

In light of his ability to consult with medical practitioners while in India, the Tribunal does not accept he would be unable to obtain treatment if he were to return to India. In any event, in his statement Mr Kumar says that he has been able to cease medication for liver damage due to the overall improvement to his health.
Mr Kumar says if he returns to India he cannot support his children’s education and help them attend university in Australia. He said his daughter needs financial support to continue her education and he has heard from friends that she has been unable to study this year due to lack of financial support. He said the same issue will confront his son when he completes high school at the end of the year.
Mr Kumar last provided financial support to his children in March 2019, when he worked in a restaurant as a chef. He then said he did this job as a volunteer as a hobby and not as a professional. He said that if he returns to India he may not be able to get a good job and support his children in Australia.
Mr Kumar returned to India for 4 weeks in 2019 and stayed with his parents at that time. On being asked if he could return to live with his parents, he said that by living in Australia he was supporting his parents and if he returned he would not be able to support them. On being asked how he supported his parents while he has been in prison and in immigration detention, he said he is not able to support them and that they are also suffering. He said his parents are 86 and 88 years old and do not work.
The Tribunal accepts that it will cause Mr Kumar some hardship financially and emotionally if he is required to leave Australia. There is evidence he suffers from depression, and other health conditions however the Tribunal is satisfied he could obtain treatment for his physical and mental health in India once he re-establishes himself. He does not currently have a job as he is in detention and was previously was in prison, and his ability to financially support his children if he were to remain in Australia is hypothetical.
The circumstances in which ground of cancellation arose
On arriving in Australia, Mr Kumar said he started a courier business which he grew to having 3 to 4 vans and drivers.
He said his wife had an interest in cooking and he had a hobby of cooking, so in early 2015 they bought Café Primo in partnership with a friend. He said that as they were not permanent residents it was purchased in their friend’s name. He said that the friend produced incorrect figures for the business and kept demanding money from them. They fell out, and he and his wife were removed from the business. He said their money was not returned to them and they could not obtain any remedy for the return of their money. As a result, in the period 2015 to 2017 they lost $150,000. This caused a lot of stress and they had to leave their house. He said his wife was sponsored by Café Primo for the period 2 November 2016 to 2 November 2019. In his statement he says he invested $80,000 in this business.
After the loss of Café Primo he invested in another café called Sorelle in Magill, investing $50,000. He said they worked very hard but could not continue the business because of the high expenses and losses so that business ceased. He could not recall if the business owed anyone money in Australia when it ceased.
In his response to the notice of intention to cancel his visa, Mr Kumar said that at some point after they arrived in 2008 his wife began to question their marriage and they separated. He states he did not cope well with this and made a stupid mistake of drinking and driving. This understates the offences of which he was convicted, as shown by the National Police Check, which displays a greater range of offences than drinking and driving.
Even after being released from prison he commenced drinking again, which led to a series of offences. According to the sentencing remarks of Magistrate Fisher, these offences occurred 24 January 2019, 4 April 2019 and 27 May 2019.
On if these offences is a breach of an intervention order. On being asked about the circumstances of the breach, Mr Kumar said he was within 200 metres of the house and his wife called the police. He said his wife lives at the house alone and his children do not live there. On being asked how she knew he was there he said she “maybe saw” him.
On being asked the circumstances of this charge, Mr Kumar said he was checking his wife’s car such as her oil and cooling. On specifically being asked if he did anything to her tyres, he said he “opened the holes” and “opened the nut bolts” to check the air pressure in the tyres. He was asked how that was just checking the car and he said he could not remember exactly, and that he did not know much about the charges.
He was asked how he would address the concern about the safety of his wife in the future. In response, Mr Kumar said he will respect his wife’s wishes in the future and what has happened in the past will not happen in the future as he has learned from his mistakes. He said he understands the intervention order and will comply with it, and knows he is not to make any mistakes or cause any problems. He said he has been in prison for his mistakes and has suffered a lot mentally and emotionally and will not do anything like that (breaching the intervention order) in the future.
Mr Kumar provided the sentencing remarks for this offence. In describing these offences, Magistrate Fisher states:
This offending occurred whilst you were on a suspended sentence for serious drink driving offences …. You have pleaded guilty to breaching an intervention order and illegal interference with a vehicle. The vehicle belonged to your wife from whom you were estranged. She has an intervention order that prevented you coming within 200m of her. In breach of that intervention order you attended at her address. She and a friend took refuge in her motor vehicle and you, on the outside of the motor vehicle, interfered with it letting the tyres down and removing the wheel nuts of the vehicle before police arrived.
The Tribunal considers Mr Kumar attempted to minimise his offending behaviour when he said he was checking his wife’s car. He failed to say that his wife was in the car. At this time he was on a suspended sentence, and being in the vicinity of his wife was a breach of an intervention order. The Tribunal considered this shows a disregard for the laws of Australia and the safety of members of the community as well as a failure to engage with the harm caused by his actions.
At this time of this decision, Mr Kumar has had little further rehabilitation regarding his alcohol use. While this is at least in part because he has been in prison and in detention, it means his assertion he will not drink is untested. He arranged to see a counsellor the week of the hearing of this matter.
He has not had alcohol for approximately 1 year, however his ability to abstain from alcohol in the longer term has not been tested in the community. He previously relapsed with significant reoffending that involved the use of alcohol. He has now attended appointments with PsychMed and has provided information from a psychologist that he has been enrolled in a Relapse Prevention Group commencing in August 2020. He provided a treatment report dated 24 April 2020 progress notes from consultations on 5, 14 and 22 May 2020 with a psychologist, and has been able to access a psychologist while in immigration detention.
The report provides a diagnosis of depression and anxiety. It records Mr Kumar’s history as given by him, which includes that the loss of money in the business led to him turning to alcohol. His wife deciding to separate from him also caused him tension. It is stated he travelled back to India to care for his parents who were unwell. It records that he is remorseful for what he has done, particularly his alcoholism.
The psychology assessment and reports has been undertaken in the shadow of his visa being cancelled, and he first booked a psychology appointment the week of the hearing. In these circumstances, the Tribunal places little weight on his attendance with a psychologist as showing he has achieved lasting change, despite some evidence that he enquired about attending courses while in prison.
The focus of Mr Kumar has been on his alcohol use, and there is nothing before the Tribunal to show he has addressed family violence issues that led to the intervention order or breach of the intervention order.
The past and present behaviour of the visa holder towards the Department
Mr Kumar states he has always held a visa and abided by the conditions of his visa. There is nothing in the delegate’s decision to indicate Mr Kumar has breached any conditions. He has advised that he was refused a bridging visa and this decision was upheld by the Tribunal (differently constituted). As he does not hold a visa he is currently unlawful. This is not due to a lack of action on his part and does not indicate non-compliance.
Whether there would be consequential cancellations under s.140
As Mr Kumar is the secondary applicant, there would not be any consequential cancellations.
Whether there are mandatory legal consequences of the cancellation
If his visa is cancelled, Mr Kumar will need to apply for another visa or leave Australia. If he did neither, he would be liable to be detained and removed from Australia. Mr Kumar has been in immigration detention since 3 February 2020, and his most recent application for a Bridging E visa was refused as the Department and the Tribunal (differently constituted) was not satisfied he would comply with the conditions imposed on the visa.
If Mr Kumar’s visa is cancelled, he will have 28 days to apply for another visa. If his visa is cancelled, there are only certain types of visa he may apply for from within the migration zone (s.48 of the Act and r.2.12 of the Regulations).
If his visa is cancelled he will also be affected by a risk factor, and if Public Interest Criterion 4013 or 4014 applies to any future visa for which he applies, he will have to wait 3 years after the cancellation or show that there are certain circumstances to be granted the visa.
It follows that the likely outcome of cancelling the visa is that Mr Kumar will have to return to India.
It is submitted by the representative there is a risk he will remain in detention due to restrictions on flights due to the COVID-19 pandemic, and that he will be at further risk of contracting COVID-19 because he is in detention. It refers to restrictions on incoming flights to India. Mr Kumar is able to apply for a further bridging visa if he makes arrangements to depart Australia, or he applies for the intervention of the Minister, and this application can be addressed on its merits at the time.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
Mr Kumar said he could not return to India for financial reasons, and as he considers he would receive better treatment for his health in Australia. He said he has no connection in India and will not get a good job. He returned to India for 4 weeks in 2019 prior to his arrest and stayed with his mother and his father. There is nothing before the Tribunal to suggest non-refoulment obligations would be breached if Mr Kumar returns to India.
Mr Kumar has a son who is 16 years old. He has not had contact with his son since March 2019, and there is a current intervention order preventing him from approaching his son. The Tribunal considers Mr Kumar could initiate contact with his son using by electronic means as his son is of an age that he can be contacted in this way. It was not clear to the Tribunal if his son would want contact from Mr Kumar. Mr Kumar has been refused legal aid, and says he will apply for revocation of the intervention order if released from detention.
While the Tribunal accepts it may be in the best interests of his son if Mr Kumar remains in Australia, this is to retain a possibility of re-establishing physical contact. Mr Kumar can seek to re-establish contact through electronic means if he is not in Australia. While this weighs in favour of not cancelling Mr Kumar’s visa, in the circumstances, this is not to a great extent.
Family, business or other ties in Australia
Mr Kumar has 2 children, a daughter who is 18 years of age and a son who is 16 years of age. He has had no contact with his children since prior to his arrest. He said this is because an intervention order was made 6 March 2019 preventing him from approaching his wife and his children.
On being asked if he had made any efforts to be in contact with his children, he said he has been in prison and then in the detention centre. He tried to contact a lawyer about how to contact his children, but his financial circumstances are not good and he has been unable to get legal representation to make an application through the family court.
Any other matters
Mr Kumar states he has made a contribution to Australia through his business interests. However, his courier business ended, and the 2 businesses he had been involved in have both resulting in him losing money. He was unable to say whether the second business that ceased resulted in the business owing money to others.
In his statement, Mr Kumar says if released he knows he will not recommence drinking, as he is subject to a bond and supervision. He has been unable to drink while in prison and states he no longer has alcohol dependency. He states he previously had an assessment with OARS (Offenders Aid and Rehabilitation Services) arranged by his community corrections officer and would expect that would occur again if he was released to the community. He provided an email from the prison social worker to state he actively sought drug and alcohol counselling, however, the program had already started when he sought the counselling and the next one had not yet started when he left prison. As this is the cancellation of a temporary work visa, the prospects for rehabilitation weigh less heavily, and are not included in government policy, than for a permanent visa or for a type of visa where the person otherwise can expect to remain in Australia for an unlimited period of time.
He states he worked in the kitchen and did some TAFE cooking courses while in prison, and attached a TAFE Statement of Attainment showing he completed a unit on hygiene practices for food safety. The prison records demonstrate he was of good behaviour while in prison.
He said he has been a member of the management committee of the Indian Australia Association of South Australia and the Hindu Welfare Association. He states he played cricket socially at Ingle Farm for 2 to 3 years and indoor cricket for 3 to 4 years. He provided various photographs of community events.
In his statement, Mr Kumar says his parents are unwell and undergoing surgery in India but he was unable to support them at that time.
Mr Kumar provided a statement from Mr Pankaj Sharma dated 30 April 2020. Mr Sharma states he served with Mr Kumar on the committee of the Indian Australian Association of South Australia, and with other members they incorporated the Hindu Welfare Association. He also socialised with Mr Kumar. He states he was aware of Mr Kumar’s involvement with the association and also of his business interests in Australia. He also states he lost contact with Mr Kumar until recently. He states Mr Kumar contacted him and told him he had problems with his wife and had been in prison. Mr Sharma states he was very surprised as it seemed out of character.
Mr Sharma also gave oral evidence to the Tribunal. He said that when Mr Kumar was in dispute with his wife, they were not in touch. He had only been contacted recently by Mr Kumar. On being asked to clarify this, he said in the last couple of years he had spoken to Mr Kumar only 3 to 4 times, and last saw him approximately a year ago. He had not had contact with Mr Kumar for the last 6 to 8 months.
Mr Munish Sarda also provided a statement in support of Mr Kumar, and says he worked with Mr Kumar on the committee of the Hindu Welfare Association. He said he has not remained in close contact with Mr Kumar. He states he is aware of his family problems and incarceration but did not know him to be an aggressive person. He knew him as a good community member who came forward to do charity.
A statement was provided from Mr Rajwinder Kumar stating he met Mr Kumar at a cricket match in 2015, and that he learned Mr Kumar was a successful businessman with a courier business. He knew him as a member of the Hindu Social Welfare Association, and he saw Mr Kumar organise events. He stated he saw him doing good deeds and would help people move house with his vans. He once saw him take a man he did not know to the hospital. They have fallen out of contact until recently when Mr Kumar asked to assist him with this case. He said Mr Kumar explained that because of troubles with his finances he lost his business and had issues with his family and started to drink more. Mr Rajwinder Kumar states he and his wife would be willing to have Mr Kumar stay for a few months.
Mr Rajwinder Kumar also gave oral evidence to the Tribunal. He said they lost contact when he realised Mr Kumar had family problems but did not want to talk about these problems. He said Mr Kumar contacted him approximately 2 weeks prior to the hearing on 21 May 2020. Mr Rajwinder Kumar did not know if Mr Kumar had been in any trouble with the police, and did not think Mr Kumar had ever been in gaol, but he has now told him about such things. Mr Rajwinder Kumar said Mr Kumar had had some dispute with his family and troubles with his wife. The accusations against Mr Kumar were not proved and he was released from gaol. He did not know if Mr Kumar had ever been convicted. He said his statement would not change even if Mr Kumar had been convicted of offences, and that the person he knew was hardworking and cared for his family and would help people in need.
It was put to Mr Kumar under s.359AA of the Act that given the evidence of Rajwinder, he had minimised his offences and failed to engage with the gravity of his offending as Rajwinder said the accusations against him were not provide when he was convicted of various offences. In response, Mr Kumar said that despite Mr Rajwinder Kumar’s evidence he had told him everything and that he had been released on 3 February 2020. He said many of the charges had been withdrawn. He said he had told Rajwinder this happened because of his family problems and financial problems. When he contacted Rajwinder he did not go into the details, but Rajwinder knows he went to gaol and he did not hide any information. He has not been in contact for the last year with others because he has been in gaol or in immigration detention.
The Tribunal accepts Mr Kumar has been involved in the India Australia Association of South Australia and the Hindu Welfare Association. Since then, he has generally lost contact with others from the community at that time, with those who gave statements as well as giving oral evidence stating they had lost contact with Mr Kumar until recently. Mr Rajwinder Kumar seemed unaware of the extent of Mr Kumar’s offending. The Tribunal places some weight on his contribution to the community, but does not consider any significant weight can be placed on the statements of his friends given their lack of contact in recent times.
CONCLUSION
Mr Kumar is the holder of a temporary visa. The basis on which his visa was granted, being his relationship with his wife, no longer exists as this relationship has broken down. He has been convicted of a number of offences involving the use of alcohol, driving, and driving while disqualified. He breached a bond. He has been convicted of offences involving a lack of co-operation with Police such as stating false personal details, failing to answer questions and disregarding defect notices. On his release from prison, he relapsed into alcohol use resulting in further driving offences when he was intoxicated. He has been convicted of breaching an intervention order and interfering with a motor vehicle. According to the Magistrate, this was while his wife was in the car. These are serious offences which can result in real harm to the community.

The Tribunal does not consider he has engaged with the severity of his offending, merely repeating that he will not offend again. He attributes his offending to his alcohol use. He has previously relapsed into alcohol use and further offending when he was released from gaol.
Mr Kumar has 2 children in Australia, 1 of whom is a minor. Cancelling Mr Kumar’s visa may result in him being physically separated from his children. He is currently subject to an intervention order which means he cannot approach his children. While the best interests of Mr Kumar’s son may be that Mr Kumar remains in Australia, as this means there is a possibility of resuming contact, this is neither a certainty nor does it outweigh his offending. Mr Kumar can seek to re-establish contact with his children by electronic means.
Considering the circumstances as a whole the Tribunal has concluded that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Kate Millar
Senior Member

[2020] AATA 3586

25 June 2020

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