Minhas (Migration)

[2019] AATA 4075

Minhas (Migration) [2019] AATA 4075 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Hakim Rashid Minhas

CASE NUMBER:  1906472

HOME AFFAIRS REFERENCE(S):          BCC2019/44979

MEMBER:Mr S Norman

DATE:13 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 August 2019 at 4:30pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – driving offences – consideration of discretion – study history – purpose of visa not fulfilled – serious breach – claimed remorse – risk to members of the Australian community – 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 8 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 that the applicant had been convicted of certain 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. The applicant appeared before the Tribunal on 8 August 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

4. 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

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. 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?

6. 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).

7. In the present case, the ground in r.2.43(1)(oa) is relevant. That stated:

   (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

8. The applicant was granted a Student (subclass 500) visa on 23 March 2017 (expiry date 15 November 2019). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 22 February 2019, the applicant was advised that it had come to the Department’s attention that he had been convicted of the following offences: 

9. The applicant was also advised that as he had been convicted of offences against laws of New South Wales, his Student visa may be cancelled under s.116(1)(g) of the Act; relying on the prescribed ground in r.2.43(1)(oa).

10. The applicant responded to the NOICC.[1] He explained that his license had been suspended for six months commencing 25 May 2018 due to speeding in a work van; he subsequently received a letter from Roads and Maritime Service (RMS) which he assumed had stated that his driving suspension had been lifted; he then recommenced driving but was stopped twice and on two separate days to participate in mobile drug testing; as nothing material was indicated to him at those times, he assumed that his driving suspension had been lifted; he also believed that he was advised by RMS “on multiple occasions” that he did not have a recorded fine.

    [1] Department – from folio 31.

11. The applicant also said he had received advice (from RMS) that the suspension had been lifted. When a police officer requested this advice be emailed to him, the applicant had claimed he had lost the relevant correspondence and the officer’s email address. 

12. The applicant also said that when he was “pulled over” on 30 September 2018 (after his licence had been suspended on 25 May 2018), he was then fined for exceeding the speed limit, but his driving suspension had not then been referred to by the police officer. He assumed his licence was no longer suspended, and he continued to drive until he was again “pulled over” in mid-November 2018. In November 2018 he was also advised that his licence was still suspended.

13. The applicant also claimed he again started driving on 25 November 2018, since this is when he believed his six-month driving suspension ceased. He was again “pulled over” on 31 December 2018, at which time he had told the police officer he thought he was driving in a 110 kph zone, though he was in fact driving in an 80 kph zone. He also said he was speeding as he needed to use a rest room at the time. He was again issued with a driving suspension and received a Court Attendance Notice to attend the Blacktown Court on 19 February 2019.

14. The applicant said he had ceased driving after this incident and was relying on a friend to drive him to and from work. However, on one occasion his friend had parked in a disabled parking spot (at a shopping centre), and the applicant had driven the car in order to find an alternative parking spot. He was again stopped by a highway patrol officer who issued him with a further court notice.

15. When discussed at hearing, the applicant did not dispute that he had been convicted of the above offences.  

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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

17. 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’.

18. Regarding the purpose of the (Pakistan citizen) applicant’s travel to and stay in Australia, the applicant said he travelled to and resided in Australia for the purposes of study. However, since receiving the NOICC, he had been stressed and failed subjects, due to not being able to focus on his studies.

19. The delegate noted the Provider Registration and International Student Management System (PRISMS) indicated the applicant had completed a Certificate IV in Security Operations on 7 August 2018. However, his Confirmation of Enrolment (COE) for a Bachelor of Tourism and Hospitality was cancelled due to his failure to re-enrol; and that COEs for a Bachelor of Accounting and a Bachelor of Information Technology and Systems were cancelled due to non-payment of fees.

20. When discussed at hearing, the applicant said he had arrived in Australia in early July 2017. Since that time he had successfully completed only a one month Certificate II course in Security. He said he had attended a Bachelor’s course on two occasions for six months each, but that he had ceased his studies in both. The applicant said he now wished to continue his studies in Australia; prior to returning to Pakistan where he proposed to study a Masters degree.

21. After then having considered all his evidence, the Tribunal proposes to accept the applicant initially travelled to and arrived in Australia, for the purposes of study. The Tribunal also accepts that he had now expressed ‘good intentions’ to re-commence his studies in Australia, should he be given an opportunity to do so. However, and after considering all the findings herein, the Tribunal is not satisfied the applicant’s present intention is to remain in Australia to study.

22. Regarding the extent of compliance with visa conditions, the Tribunal notes the applicant was charged/convicted of three separate offences. Further, the applicant had admitted to breaching other driving laws (not part of the aforementioned convictions), and for which he was fined. Respectfully, and notwithstanding the applicant’s claims to have misunderstood the obligations which had been placed upon him (the disqualification of his licence), the Tribunal believes these breaches to have been significant, and to indicate an ongoing failure to have regard to Australian laws.

23. Regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled, the Tribunal understands the applicant had been residing in Australia since 6 July 2017; that he said he was attempting to establish himself in Australia; that he was unable to maintain stable employment since receiving his initial six-month driving suspension on 25 May 2018; that he now realises the importance of his studies and wishes to be given a second chance so he can ‘succeed in life’.

24. At hearing, the now 22 ½ year old applicant conceded that after arriving in Australia he was not satisfied with the Bachelor courses he pursued (so he withdrew from both), and that he had then engaged in the consumption of alcohol and smoking cigarettes. He also said that his two brothers and one sister resided in the family home area in Karachi, that another sister resided in the UAE, and that his father (a permanent resident of the UK), and his mother (currently seeking same), reside in London (though the father has businesses in Karachi and London). After then discussing all his evidence, and as put to the applicant at hearing, the Tribunal may find that he would benefit from the support and guidance of his family in Karachi.

25. The applicant conceded that his family would continue to support him in Karachi, though he was unsure if he would obtain good tertiary education in Pakistan as he may obtain in Australia (though as noted above, he also said he intended to pursue Masters study in Pakistan, after completing his Bachelors in Australia). He was also unsure about future career prospects. The Tribunal notes the country information stated (in part):

    ECONOMIC OVERVIEW
    

    [2] DFAT COUNTRY INFORMATION REPORT PAKISTAN, 20 February 2019.

    2.13 Pakistan has the world’s 26th largest economy and seventh largest labour force. The World Bank classifies Pakistan as a lower-middle-income country, with per capita gross national income of around USD 1,500 (2016).[2]

26. And regarding education:

    Education

    Article 25A of the Constitution states that the ‘State shall provide free and compulsory education to all children of the age of five to sixteen years,’ but low budget allocations, lack of capacity and corruption affect the quality and availability of education. Education expenditure in Pakistan amounted to 2.8 per cent of GDP in 2017, compared with the South Asia regional average of 2.5 per cent (2016), and 5.2 per cent (2014) in Australia. Provincial governments are responsible for education services, and budget allocations and quality vary greatly across the country.

    Around 57 per cent (2014) of Pakistanis over the age of 15 are literate, compared to the South Asia regional average of 71 per cent (2016) … [3]

    [3] DFAT COUNTRY INFORMATION REPORT PAKISTAN, 20 February 2019.

27. After putting the gist of the above country information to the applicant at hearing, he was not sure he could work full time or part time while studying at a good university in Pakistan. The Tribunal put to him it understood he came from a sufficiently wealthy family such that he would be financially supported in Pakistan (he said his father was a self-made man and one brother worked in IT while another worked in car sales). The applicant eventually conceded that even if his father would be disappointed in him, he would continue to support him and he should be able to pursue studies/work in Pakistan.  

28. Next, the Tribunal notes the applicant (initially) said he had not advised his family about his circumstances (due to shame), and that his family and he had high hopes for him. The applicant said his father would be shattered/shamed/disappointed if his Student visa was cancelled; that he had not told anyone (though he later had told his mother), that he would consider himself a failure (though as stated at hearing, the Tribunal may find, and now does find, the 22 ½ year old applicant could study/work in Pakistan).

29. When the reaction of particularly his father was discussed, he said he did not wish to again let his father down, but he also conceded that his father’s disappointment would be temporary and his father would continue to support him. After then considering the evidence, the Tribunal believes the applicant could pursue his career in Pakistan and seek study/work commensurate with his skills.

30. However, the Tribunal does accept the cancellation of the applicant’s Student visa may have some limited financial implications for him and his family. I also accept that he may be prevented from studying at the Bachelor’s level in Australia (something he said he had wished to do).

31. Regarding the circumstances in which the ground of cancellation arose, the applicant said he had not been able to find stable employment in Australia, since receiving his initial six-month driving suspension on 25 May 2018; that he did not advise his family about the court notices due to shame (but his mother now knows); that he believed he acted irresponsibly and irrationally; that he conceded he had “not been the best person in regards to his own future”; that he will attempt to “make up for his mistakes”; that he will pay all his fines (approximately $2100); that he is now depressed/shocked (though no claim was made the applicant sought medical assistance for this) and he has to live with the consequences of his decisions; that his stress has caused him to fail his last semester as he could not focus on his studies; he now wishes to be given one last chance.

32. Amongst other things, the applicant had told the court (words to the effect) his actions were a result of misunderstanding the extent of the penalties placed upon him, his assumption that his suspension had been lifted, and that he now recognises his actions were misguided. However, and as noted above, the applicant was charged /convicted of three separate offences. One offence was alleged to be due to the applicant running late when employed as a delivery driver; another time he was under the mistaken belief that his suspension had been lifted; another time he was speeding to use a restroom; and on another occasion he was seeking to find an alternative parking space. The Tribunal notes the applicant’s claim he believed his driving suspension had been lifted (as noted above, he had not been able to provide the alleged RMS evidence about this to the police). However, this does not explain other offences.

33. Respectfully, the Tribunal is satisfied that the regularity of offences over a short period of time (as well as other driving offences), indicate a lack of regard for Australian laws by the applicant. The Tribunal notes the applicant’s claimed remorse, however this does not overcome his ongoing breach of Australian laws. That is because I am satisfied his ongoing breaches give rise to a very real risk to members of the Australian community, including other road users.

34. The applicant also referred to being stressed and to be suffering depression. However, the Tribunal has no corroborating evidence of this (or that he suffered stress and depression in Pakistan), and when asked at hearing, the applicant said he did not attend a doctor in Australia, for the purpose of seeking assistance with stress or depression (though he had attended a doctor for other reasons).

35. At hearing, the applicant also lodged inter alia character references and email evidence (dated 6 August 2019), that he proposed to commence a Traffic Offenders Rehabilitation Program. He also said that he was now changed for the better, that he now valued his education, that he had become more religious and ceased consuming alcohol (since 31 December 2018). However, and as stated at hearing, the Tribunal may find (and now does find), that he is still a young man without any familial contacts or guidance in Australia, and the Tribunal believes he could benefit by the support and guidance of his family in Pakistan (Karachi).

36. That being said, at hearing the applicant said his family would ‘hold him back’ and he would ‘have a cloud’ over him as he would not be able to mention his (ie) alcohol consumption. However, given the applicant’s concession at hearing that any ‘shame and disappointment’ would be temporary, and given he advised the Tribunal he none-the-less proposed to return to Pakistan in order to study at the Masters level, the Tribunal believes this would only be a temporary concern for him should he return to Pakistan. Further, and after considering all the evidence herein, the Tribunal does not believe the applicant has any compelling need to travel to or remain in Australia.

37. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be breached if the applicant’s visa is cancelled. The Tribunal has no material evidence that Australia’s international obligations would or may be cancelled, if the applicant’s Student visa is cancelled.

38. Next, if the applicant’s Student visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention (he said he would return to Pakistan if his visa was cancelled). Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.

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

40. However, and after then considering all the accepted evidence herein, the Tribunal is satisfied it should exercise the discretion to cancel the visas in this case.

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

    decision

42. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Mr S Norman
    Member