Mohammad (Migration)

Mohammad (Migration) [2018] AATA 5847 (4 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arshad Hashmi Mohammad
CASE NUMBER:  1826968
HOME AFFAIRS REFERENCE(S):           BCC2018/4078456
MEMBER:Antoinette Younes
DATE:4 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 04 December 2018 at 3:08pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – convicted of an offence against a law of the Commonwealth, State or Territory – loss of financial and emotional support for family – large debts for education – medical conditions – Convention on the Rights of the Child – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, r 2.43
CASES
Minister for Immigration and Citizenship v Obel [2010] FCA 1445
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 September 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applies, namely a conviction. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 27 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse.
The applicant was represented in relation to the review by his registered migration agent.
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
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). 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?
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).
Regulation 2.43(1)(oa) states “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, 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)).
In the course of the hearing and in accordance with s.359AA, the Tribunal advised the applicant of information before the Tribunal indicating that [in] February 2018 at [a named] Court, he was convicted of two charges [specified]. The Tribunal advised that this information is relevant in that it supports a finding that the ground for cancellation exists. The Tribunal invited the applicant to comment on or respond to that information and asked if required more time. The applicant agreed that the information is correct.
The Tribunal finds that the applicant has been convicted of an offence against a state law and consequently he has been convicted in the manner described in r.2.43(1)(oa). For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant completed a Bachelor of Commerce (Accounting) in India. He came to Australia in 2008 as the holder of a Student visa to undertake a two-year Diploma of Business Management. Since that time, the applicant has been the holder of multiple student visas and later as a secondary applicant in the subclass 457 visa held by his wife. The applicant has been employed as a part-time cleaner since 2009.
The applicant has known his wife since 2003 who was a qualified registered nurse in India. She joined the applicant in Australia in 2009 and they married shortly after. She undertook diploma studies in business management and IT and later a Bachelor of Nursing which she completed in 2014. She is the primary subclass 457 visa holder.
The applicant was granted a subclass 457 visa to reside in Australia as a member of the family unit of his wife. His wife has been sponsored by Healthscope Operations Pty Ltd as a registered nurse.
The Tribunal is satisfied that the applicant’s purpose to travel to Australia was to study and he has done so. He is currently a secondary applicant on his spouse’s subclass 457 visa. He is staying in Australia consistent with that purpose and the Tribunal has given this aspect some weight in his favour.
·the extent of compliance with visa conditions
In submissions dated 21 August 2018, the representative argued that the applicant has been compliant with all visa conditions and he has acted in good faith at all times towards the Department and other authorities.
There is no evidence before the Tribunal that the applicant has been in breach of any visa condition and the Tribunal gives this aspect some weight in his favour.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In submissions dated 21 August 2018, the representative indicated that:
·The family has been living in Australia since 2009 and five years later, in 2014, their daughter was born. The applicant has been providing financial and emotional support for the family.
·The applicant also provides financial support of about $500 to $600 a month to his parents in India. His parents suffer from [specified medical conditions]. His parents and sister who is divorced with one child depend on the money they receive from the applicant. The applicant’s greatest worry is that if he were to return to India, he would not be able to support his parents. He also has to repay a loan of $80,000 borrowed from the parents to cover his wife’s tuition in nursing.
·The applicant enjoys a good reputation as a solid worker. There has not been any issue relating to his integrity, reliability or honesty.
·The applicant has shared accommodation with a psychologist for some years. He was entrusted during this period to look after the premises and the pets on a number of occasions.
·If you were to return to India, he would have difficulties in finding employment. He wants to continue his tertiary studies and set up a new business with his current employer. His wife would also have to return to India.
In oral evidence, the applicant stated he had borrowed money in the amount of $9500 from a person whom he knew in India and he has to repay the amount. He provided evidence to support the claim and evidence of other debt. The Tribunal accepts as plausible that the applicant had borrowed money from that person as well as his parents, about $80,000 ($38,000 still owed) to cover the tuition for his wife. The Tribunal accepts that the family has other debts such as credit card debt and day care fees. The applicant gave evidence that his wife would be earning a lot less in India than what she earns in Australia. The Tribunal appreciates that if the applicant were to return to India on his own or with the rest of his family, there could be financial difficulties faced by the family and the Tribunal has given this aspect weight in his favour.
The applicant’s spouse gave evidence that she would like to continue working in Australia on the subclass 457 and that she would like the applicant to remain with her in Australia. She gave evidence that it would be very difficult for her to look after her four-year-old daughter and continue to work without her husband’s support and assistance. She gave evidence that their daughter speaks four languages fluently, including English.
The Tribunal acknowledges that if the applicant were to return to India on his own, that would create a certain degree of hardship, particularly to the primary visa holder who intends to remain in Australia. However, the Tribunal is of the view that the family can choose to leave Australia as a family and return to India. The Tribunal observes that that the subclass 457 is not a permanent visa and although it is plausible, neither the applicant nor his spouse can have an expectation that they would be granted permanent visas in the future. The Tribunal appreciates that the primary visa holder does not see returning to India as a good option, India is nevertheless their country of nationality. The primary visa holder is a qualified nurse in India as well as Australia, enhancing her employment opportunities in India.
It is also plausible that if the family were to return to India, they could encounter difficulties as a result of their religious and language differences. The applicant advised the Tribunal that his spouse converted to Islam to marry him and this was not supported by her family. The spouse gave evidence that she has difficulties understanding the dialect spoken by the applicant’s family and she has different dietary needs. The Tribunal does not see those difficulties as being insurmountable or that they mean the visa should not be cancelled.
If the applicant chooses not to return to India voluntarily, he could also be detained and deported. The applicant would also have difficulties in obtaining further Australian visas. The Tribunal is of the view that these are intended consequences of the legislation and in his circumstances, they do not mean that the visa should not be cancelled.
The Tribunal notes that the applicant suffers from a number of ailments and the Tribunal has given some favourable weight to his clinical status. However, the Tribunal gives regard to the assessments of Mr Ilan Cohen in the report of 19 November 2018 where the applicant was assessed as having a clinical profile which is “entirely within normal limits. There are no indications of significant psycho pathology in the areas that are tapped by the individual clinical scales.”
There are aspects under this consideration that favour the applicant but there are aspects that do not. On balance, the Tribunal is satisfied that the degree of hardship that could be faced by the applicant and/his family does not mean that the visa should not be cancelled
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant has been convicted of two offences relating to [details deleted].
In a Statutory Declaration dated 4 September 2018, the applicant indicated that:
·He accepts that he was arrested and charged with the two offences. He was shocked when arrested and he participated voluntarily in a police interview during which he denied certain aspects of the allegations. He realises that his actions were [inappropriate] and he should never have engaged in such behaviour. It was a momentary lapse of judgement.
·A lawyer acted for him but both the applicant and his wife were dissatisfied with the services of that lawyer. On legal advice, he accepted a plea of guilty to benefit from the sentencing discount.
·The lawyer did not follow his instructions and there were aspects of the statement of facts which were misrepresented. He did not press the issue with the lawyer at the time who treated this matter in a superficial and dismissive manner. Had he been advised by another lawyer, he would have considered an appeal to the District Court.
·He did have feelings for his flatmate (the victim) and she had confided in him that she had discovered that her husband was having an affair with her friend in Nepal.
·He accepts that he did “silly, immature acts, jeopardising” his future in Australia. He regrets his actions for the hurt that they caused his wife and his four-year-old child. His wife has made a big commitment in qualifying in Australia. He now realises that he has placed that at risk. He also regrets the offence that he caused to his friend, flatmate, workmate, her husband, as well as the loss of their friendship.
The applicant provided a number of documents including the following:
i)   Report of IIan Cohen, Psychologist dated19 November 2018 who concluded that there is “little if any likelihood” of the applicant reoffending.
ii)     Statement of the applicant dated 14 February 2018 addressed to the Magistrate, [at a named] Court, amongst other things asking for forgiveness for his wrongdoing. Statement of the applicant dated 26 November 2018.
iii)    Statements from the applicant’s spouse, supporting the applicant.
iv)   Community Correction Order commencing on 21 January 2018 and finishing on 20 June 2019.
v)    Reference from a psychologist, dated 28 August 2018. Reference from ASM HAQUE dated 21 August 2018. Reference from Tim Gentle dated 15 August 2018. Reference from Sydney South Welfare Centre dated 19 August 2018.
vi)   Australian Federal police, National Police Certificate dated 28 August 2018 showing the conviction in relation to the two offences and a court result of a good behaviour bond for 16 months.
vii) Confirmation of enrolment for the applicant’s wife in the bachelor of nursing degree, ending on 31 December 2016.
viii) Marriage and birth certificates. Donations’ receipts, Temporary Residents program letter to applicant, Indian Police Clearance. Wikipedia article titled Social – emotional agnosia.
ix)   Report of Kim A Dilati, Psychologist dated 23 January 2018 who essentially concluded that the applicant had [committed a low range offence] “which can be indicative of a lack of evidence for high risk of future offending”.
x)    Text messages, bank accounts, loan documents, medical report relating to the spouse who suffered [a medical condition in] November 2018, medical diagnosis of [a different condition] suffered by the applicant, email from IIan Cohen of 23 November 2018 to the representative about a video of the applicant and the victim dancing together, photographs.
In submissions dated 21 August 2018, the representative reiterated the applicant’s claims relating to the lawyer who represented him in relation to the charges. It was also argued that without the benefit of an older family or community member guiding the applicant, he felt intimidated, frightened, shamed by the legal process. Both the applicant and his wife wanted the matter to be resolved quickly. The legal representative was in a hurry and seemed unprepared for the court presentation. The submissions also focused on arguments relating to the relationship that the applicant had with the victim.
The representative contended that the two offences were at the lower end of culpability and that the applicant had no antecedents either in India or in Australia. A psychologist assessed him to be at the low risk of reoffending. The representative noted that based on available information, it appears that not all the circumstances of the relationship between the applicant and the victim were highlighted, including a blossoming relationship over many months. In essence, it was submitted that the applicant’s conduct was out of character.
In the course of the hearing, the applicant described his relationship with the victim who was behaving in a manner that led him to believe that she was romantically interested in him. The applicant raised the issue about his legal representative in relation to the charges. The Tribunal indicated to the applicant that the Tribunal does not look beyond the conviction and that the Tribunal is entitled to conclude that he is guilty of the offences. Moreover, the Tribunal indicated that even if the Tribunal were to accept his version, the Tribunal considered his version to be problematic.
The Tribunal has noted the applicant’s version of the events. The Court’s finding is that the applicant had committed the offences with which he was charged. This finding occurred subsequent to a guilty plea which the applicant entered on legal advice.
It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction, and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point.
It is inappropriate for the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions. The Tribunal asked the applicant if he had lodged an appeal, and he confirmed that he did not, although he explained that this was essentially due to finances.
On the evidence before it, the Tribunal finds that the applicant has been found guilty as charged. The Tribunal is therefore satisfied that the applicant has been convicted of offences which he committed.
Although the assessment of risk of reoffending is not directly relevant as a consideration in this case, there have been submissions and evidence that there is no or a small risk in the applicant reoffending. The Tribunal observes that in the course of the hearing, the applicant focused on discussing how the victim led him to believe that she was interested in him and although he has expressed remorse, the Tribunal is not reassured that the applicant fully appreciates the seriousness of his conduct. The Tribunal is of the view that the applicant was focusing on the victim’s conduct rather than accepting responsibility, particularly in light of the conviction.

The Minister for Immigration and Citizenship v Obel[1] is authority for the proposition that committed offences are a real indicator of future conduct; the Court remarked:
… The offences he has committed provide the best and perhaps the only real indicator of the harm he might cause in the future. The Tribunal adverted to cll 10(1) and 10.1.1. It referred to the relevant primary considerations under the rubric nature of the relevant conduct as well as the risk that the conduct may be repeated. It also referred repeatedly to the serious nature of the offences. In context it is implicit that it had in mind the harm to the community posed by such offences.
I disagree that the fact of previous criminal conduct can tell us nothing about the kind of harm that an offender may pose in the future. The assessment of the risk of reoffending in which sentencing judges routinely engage is based on the past. When the direction focuses on the nature of the relevant conduct it does so in the context of the assessment of the level of risk of harm so the risk of harm posed by the conduct in which the person has engaged is obviously relevant to the risk that he might in the future engage in it. The fact that an offender has been involved in drug trafficking in the past provide some evidence of the kind of harm in which he might engage in the future and I have no doubt that Tribunal had this in mind.[2]
[1] Minister for Immigration and Citizenship v Obel [2010] FCA 1445.
[2] Ibid at [58]-[59].
The evidence indicates that the applicant has been convicted [and] the Tribunal views such conduct as serious. In submissions, it was argued that the applicant’s offending is at the lower end of culpability. The Tribunal appreciates that this may be so, however, the Tribunal is of the view that the conviction relates to significant and serious charges and to suggest otherwise is unsupported by the legislative scheme – the offences could attract a term of imprisonment reflecting their seriousness. The Tribunal appreciates that the maximum penalty is imprisonment could have been imposed but that does not mean that the offences were not serious. In terms of the sentencing hierarchy, imprisonment is generally considered as a last resort.
The Tribunal is satisfied that this consideration weighs heavily against the applicant.
· past and present behaviour of the visa holder towards the Department
The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this favourable weight.
·whether there would be consequential cancellations under s.140
There is no consequential cancellation in this instance.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
As mentioned earlier, if the applicant does not leave Australia voluntarily, he could be detained and deported. He would also have difficulties in obtaining any further Australian visas.
The Tribunal considers those to be legitimate and intended consequences of the legislation and in the applicant’s case, they do not mean that the visa should not be cancelled.
·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
The applicant and his spouse claimed that given their religious differences, the spouse could face difficulties if she returns to India. The Tribunal appreciates that those claims were not articulated as protection claims and on the material before it, there is no evidence before the Tribunal that the applicant or his spouse would face what would amount to serious or significant harm as contemplated by the Act.
The applicant has a four-year-old daughter who is commencing school in 2019.
As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning the applicant’s daughter. By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the child.
The CROC applies to children under 18 years of age. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.
Article 3 of the CROC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The applicant’s daughter speaks four languages including English. She has not commenced her schooling and it is planned that she would do so in 2019. The Tribunal is not suggesting that the family should separate but that would be a matter entirely up to the applicant and his spouse. The Tribunal recognises that it is reasonable to assume that it is in the best interest of the daughter for her to be with both of her parents who can choose further action. The Tribunal is of the view that either scenario, that is if the parents separate or choose to leave Australia together, Australia is not in breach of the CROC.
On the evidence before it, the Tribunal is satisfied that in case of the cancellation of the applicant’s visa, Australia would not be in breach of its international obligations and the Tribunal gives this aspect weight in deciding that the visa should be cancelled.
·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties
The subclass 457 is not a permanent visa. There is no assurance or guarantee that the holder of the subclass 457 would eventually be granted a permanent visa. Although not relevant, the Tribunal addresses the submissions that the applicant has strong ties. There are a number of references in support of the applicant. The applicant has a brother-in-law who lives in Tasmania but other family members are all in India. It is correct that the applicant’s spouse and daughter are in Australia but there is no evidence of other strong family ties. He has worked for the same employer for many years and the Tribunal acknowledges this aspect.
The Tribunal gives significant weight in deciding to cancel the visa, to the fact that the subclass 457 is not a permanent visa.
·any other relevant matters
There are no other matters relevant to the Tribunal’s consideration.
The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are aspects that favour the applicant but there are other aspects that weigh against the applicant. The applicant has committed a serious offence and his own personal circumstances do not outweigh other considerations.
The Tribunal is satisfied that on balance the correct and preferable decision is that the applicant’s subclass visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Antoinette Younes

Senior Member

[2018] AATA 5847

4 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction