Multani (Migration)

[2019] AATA 3750

Multani (Migration) [2019] AATA 3750 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satinder Pal Singh Multani

CASE NUMBER:  1910878

HOME AFFAIRS REFERENCE(S):           BCC2019/1278128

MEMBER:Denis Dragovic

DATE:31 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 31 July 2019 at 4:10pm

CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – ground for cancellation – convicted of an offence – consideration of discretion – drug dependency – mental health issues – best interest of child – Australia’s non-refoulement obligations – extent of criminal history – repeated breach of Community Corrections Orders – decision under review affirmed

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

CASES
Ibrahim v MHA [2019] FCAFC 89

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) and Regulation 2.43(1)(oa) on the basis that the visa holder has repeatedly breached his Community Corrections Orders, has failed to rehabilitate himself and has a criminal history that has escalated over a period of time totalling 22 days imprisonment. 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 28 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Multani, Ms Navpreep Kaur, Harmanpreet Singh and Gurnawah Singh Multani. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant:

   (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. I put to the applicant that there was a list of convictions in the Department’s Record of Decision, a copy of which was provided to the Tribunal by the applicant, and explained the grounds for cancellation. I asked if he accepted that he has been convicted of an offence. He accepted that he has been convicted and stated that he has been in prison for 22 days. I note that the offenses he has been committed fall under the category of offenses against a law of the Commonwealth, a State or Territory.

9. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(g) r.2.43(1)(oa) 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

10. 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 to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

11. The applicant came to Australia in 2014 on a student visa as a spouse of his wife who was registered to study a Masters of Information Technology at Victoria University. He explained that their purpose was for her to achieve a higher education and go back to India well prepared. Later in the hearing he indicated that they had hoped to obtain permanent residence.

12. The visa holder’s wife provided additional information. She explained that she came to study a Masters of Information Technology at Victoria University and that she was progressing well but then didn’t make a payment at about half way through her degree and her Certificate of Enrolment was cancelled. Her mother-in-law was funding her studies but the failure to make the payment she stated was her own. She did not want to divulge what these reasons were. Her first visa was valid through to August 2016. She applied for a further student visa. That visa was refused in May 2017. It was appealed to the AAT and again refused in a December 2017 decision.

13. She said that she wasn’t getting opportunities from universities to continue her masters in IT so she started looking for an MBA and went to the colleges. She pursued her MBA so as not to have a gap in her studies. She completed her MBA in March 2019.

14. She explained that her purpose of coming to study in Australia was to get an IT degree. She wanted to get a good job anywhere and not necessarily in Australia. She has appealed her case to the Federal Circuit Court of Australia and is awaiting a court date. She is still hopeful that she will be accepted into an IT degree, but she is applying for a Masters of Public Administration at universities and colleges in the interim.

15. The applicant’s purpose for travelling to and staying in Australia was to support his wife and look after their child/children while she studies. The applicant’s purpose is two-fold, firstly it is to provide support to his wife and secondly, to seek permanent residency. In both instances their purposes are intertwined and as such I consider them collectively.

16. I accept that the applicant’s wife initially arrived to Australia to pursue an IT degree and has been unable to complete it for what appear to be reasons that she takes responsibility for. As a consequence of her inability to complete her IT degree she pursued an MBA and was able to complete it. Through this period her husband, the visa holder, was achieving the purpose of his travel to and stay in Australia by supporting his wife and to some extent looking after the children. Although the applicant and his wife mentioned the purpose of their travel was to obtain permanent residency I consider this to be more akin to an objective that they aspired to as it is not guaranteed and requires multiple steps. I consider the purpose of their travel was to fulfil what could be the first few steps towards that objective. As such I consider the purpose being for her to complete her studies and him to support her in this endeavour. While I acknowledge that an aspect of her claimed reason for travel to and stay in Australia was to complete an IT degree I give this little weight against cancelling the visa for the reason that she chose an alternative degree to pursue and has completed it. Her objective was in large part fulfilled, namely to study in Australia so that she can be better positioned to find a good job.

    The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

17. There is no evidence before me that the applicant has not complied with his visa conditions. As there is an expectation that all visa holders would abide by visa conditions I place little weight against cancelling the visa.

    The degree of hardship that may be caused to the visa holder and any family members

18. The applicant explained that their life would be ruined if he had to go back to India because they had put a lot of effort to coming to Australia so that they could get permanent residence in Australia. He said that his mother is sick and depressed because of what has transpired in Australia. If his visa was to be cancelled he hasn’t discussed with his wife whether the whole family would go back but he assumes that his wife will stay in Australia on a bridging visa to pursue her dream. If they all went back together, it would be a bad outcome because his mother spent a lot of money to get them to Australia.

19. The applicant’s wife said that the cancellation of his visa would create ‘a big trauma’. She said that she will be studying and working and she wants her husband to look after the child. She said that he provides her mental support. Her intention is to continue to try to get accepted into a university to study IT but she doesn’t want to live far away from her children. The applicant’s wife submitted a post hearing letter stating that it is difficult for her without her husband. She wrote that her husband’s presence will support her in her day to day activities.

20. The applicant has had an extensive drug dependency problem. Due to this I have considered whether there would be additional hardship caused to the applicant by being unable to access the level of care including treatment and support that he has accessed while in Australia as well as his general ability to remain drug free if he was to return to India. I note that the applicant’s sister explained to the hearing that after he started overdosing on heroin and ice they took him to India for detox and it worked but he relapsed under the influence of his friends in Australia and then once again they took him to India for detox which again worked. I also note that there is no evidence that during his time in India he ever relapsed. The evidence indicates that it is his friendship group in Australia that has provided him with drugs and led him down that path.

21. Was the visa to be cancelled I accept that the applicant and his family will face some difficult decisions. As noted above the applicant claimed his life would be ruined, his mother is sick and depressed having spent a lot of money to get them to Australia, which suggests a degree of emotional, psychological and/or financial hardship to him and his mother. His wife said that she doesn’t want to live far away from her children, which raises the impact that separation from his wife and children may have on him, his wife and children. If they were to remain together the wife will have to forego her dream of completing a Master’s Degree in Information Technology. Alternatively was she to stay with one child and he to return and take care of the older child or to care for both, the family and the children would be affected. The applicant was unable to provide an answer as to which direction they would choose to take. Either way I find that the family would face psychological, emotional and financial hardship and as such place some weight against the cancellation of the visa.

    The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

22. The applicant explained that he joined some bad company in 2014 two or three months after arriving to Australia. These friends were drug dealers. He was introduced to them through his cousin. He was jobless at the time and started taking drugs. He has had four years of taking drugs and breaking the law until late 2018. He has been clean for the last 8-9 months. He said that he broke with his friends who were bad company when he got his first corrections order in October 2017.

23. Drawing from the delegate’s decision I put to him that since October 2017 he has had a number of convictions including in 2018 he was caught possessing a controlled weapon, stole from a shop and lied to a court. He then stole again. He explained that he had a kitchen knife in his car, not a weapon to harm anyone. As for the theft he said that he forgot to pay. I put to him that in October 2018 he was caught with heroin. He blamed it on his friends who put the heroin in his car. I reminded him that he had said that he hadn’t seen his friends since October 2017. He said that it was an accident that he had come across his friends. I put to him that he was caught driving an unregistered vehicle to which he responded that it was because his wife was pregnant and he had to go to see her.

24. The applicant’s sister emphasized the negative role his friends had played in his life. She said that they even threatened the family and dropped drugs in the letter box but he didn’t have the strength to stand up against them.

25. The applicant has mental health challenges. He sees shadows and hears voices. He has had suicidal and homicidal ideations. He has seen a psychiatrist and has in the past been committed to compulsory psychiatric care. He claims that it is because of the drugs, but it is possible, according to the medical reports, that the drugs are being taken because of the psychosis. A letter from Dr Eric Daniel Thomas, MBBS, Senior Psychiatric Medical Officer at Dandenong Continuing Care team states that the applicant was admitted to their ward in August 2018 (11/8-24/8/2018). Prior to that the applicant had deteriorated for two years. According to the report he was a regular and compliant patient. He expressed remorse. He found work in a vegetable shop some distance away from his home. The doctor made the comment, ‘The prospects for his recovery from his psychiatric and addiction condition were looking quite favourable before he was taken into custody. His prognosis is dependent on him continuing to receive the appropriate medication for his conditions.’ He also added with regards to the relationship between his illness and crimes that ‘many people with a psychotic condition often self-medicate their distress with illicit drugs, and that Mr Multani was noted to have been deteriorating since at least 2016.’ In another document (Tribunal f.94) from Monash Health Mental Health Services Discharge Summary it states that the applicant had ‘Drug induced psychosis.’

26. The applicant’s sister submitted a post hearing letter stating that his medicine made him forget things such as not paying for goods from shops but his condition has gotten a lot better. She committed to support her brother and that he is always accompanied by one of the family members and that she will ensure that he takes his medicine.

27. The applicant wrote in a post-hearing submission that the drug usage put him in a situation where he was unable to understand the difference between good and bad behaviour and understand the consequences of his inappropriate behaviour. He claims that the drugs he was put onto made him forget things. As such he reduced the dosage.

28. In considering whether there are extenuating circumstances beyond the applicant’s control I have considered the applicant’s drug addiction and mental health as a driving force for his transgressions including his thieving which he claims was driven by the effects of his drugs. While it is acknowledged that drug dependency does take away an addict’s agency the applicant has on two occasions attended detox after which he again reverted to drug use. He was also caught with heroin in October 2018 which was after his engagement with Monash Health. As noted at [25] the convergence of drug addiction and the visa holder’s mental health challenges are complex and difficult even for medical practitioners to untangle. I accept that the two are combined and feed off one another. I recognise that the medical evidence suggests that he requires further care. I do not accept that he can’t find that care in India as he was able to access detox support there. I also note that it is his presence in Australia alongside friends who are involved in drugs that has led him astray and that in India they would not have influence on him. Overall the applicant has repeatedly reverted to drug taking and breaking the law despite solid progress being made. But because of the acknowledged power upon the individual of drug dependency and its impact upon mental wellbeing I place limited weight against cancelling the applicant’s visa.

29. The applicant and his witnesses also claimed that it was his friends who were creating bad company and leading him astray and that he was weak and could not separate himself from them. As an extenuating factor I place no weight on this for the reason that the applicant is responsible for his own friendship circles and must bear the burden if he chooses poorly.

    The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

30. There is no evidence before me that the applicant’s behaviour towards the department fell short of expectations. As all visa holders should fully engage with the department I place little weight against cancelling the visa.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

31. There are no other persons whose visa would be cancelled as the applicant is a secondary applicant to his wife’s student visa.

    Whether there are mandatory legal consequences to a cancellation decision

32. I find that indefinite detention is not a possibility stemming from a decision to cancel this visa as the applicant has the choice to return to India and as such I give no weight to this consideration.

33. I accept that upon cancellation the applicant would remain detained under s.189. Due to s48 of the Act the applicant will be barred from applying for a further visa whilst still in the migration zone, unless the visa is for a limited prescribed class. The applicant would be subject to s.198, being the removal as soon as reasonably practicable of an unlawful non-citizen. I give these mandatory legal consequences little weight against cancelling the visa for the reason that while they lead to the loss of liberty for a period of time and possibly forced repatriation with only a limited number of alternative prescribed visa options the impact is of a limited time frame and at any stage he can choose to return to his home country of India voluntarily and reobtain his freedom.

34. The applicant may face challenges in returning to Australia within a 3 year period under public interest criteria 4013 as the applicant would be affected by a risk factor mentioned in subclause (2) of PIC4013. As the applicants have not firmly expressed their plans if the applicant’s visa was to be cancelled I am assuming the worst case scenario being that the applicant’s children are cared for by their mother and as such the applicant is separated from them and unable to visit them in Australia. I place limited weight against cancelling the applicant’s visa for the reason that this is a considerable burden but note that this is not a situation without remedy. At any stage the applicant’s wife and his children could be reunited with their father if that is important to them by leaving Australia or visiting India.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

1. I have considered the best interests of the child in Australia as a primary consideration and the best interest of the other child currently in India. I note that the applicant’s mother is in India and she is looking after their oldest daughter who is nearly 3 years old. The daughter has been there for 3 months visiting her grandmother and has spent considerable time in India previously. It was said that they planned for her to come back to Australia soon. The applicant’s sister in her evidence said that the oldest daughter was in India in 2017-18 also. The applicant has another child, who is about 8 months old and lives in Australia.

2. In considering the best interests of the children under the Convention of the Rights of the Child I note that if the applicant’s visa was cancelled and he was to return to India it is up to the family to choose whether the children and parents remain apart and for how long. Currently the situation is that the oldest daughter is in India while the rest of the family remains in Australia. Was the applicant to return to India the family could choose to have the eldest remain in India with the father and the youngest with the mother in Australia as she continues to seek study opportunities and awaits the outcome of the Federal Circuit Court of Australia case. Alternatively they could choose to have both children with the mother or both with the father. These are choices that the parents can make.

3. For the 8 month old child I find being with her mother is in the best interest of the child, though, where the mother is, whether in India or Australia is neutral on balance for the reason that on the one hand being within and amongst the applicant’s culture and society together with the wider family is beneficial and having the father there would not be without merit. Conversely being in Australia provides a better material outcome for the children with better access to healthcare. The mother’s ability to provide support to her child will be influenced by the presence of her husband and international law does give weight to maintaining the family unit. But none of the foreseeable situations force an outcome which would lead to a breach of Australia’s obligations under relevant international agreements related to the best interests of the child.

4. Similarly for the three year old child. Being older she is less dependent upon her mother as has been shown with her extended stays in India. The best interest of the child would be to maintain family unity but this could be achieved equally in India in the near future if her mother chose to return. The best interest of the child can be met through the choices the family makes and as such are not breaches of Australia’s international obligations.

5. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

6. 'Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

7. I now turn my mind to consider the claims. The applicant said that he does not fear harm returning to India. Nevertheless, the applicant’s sister explained that they are from a political family and that their brother has faced accidents and threats. The applicant’s sister claimed that it was not safe for the applicant in Punjab. Their mother is a local politician. When she stood for election in 2009-2010 and was about to win the election some people came to their house and beat the applicant. They had cameras in the house and as such the aggressors were arrested but the case was dismissed because, she claimed, people have connections. The sister suspects the attacks were to send a message to her mother to drop out of the elections. Since then nothing has happened to their mother. She remains a member of parliament.

8. The applicant’s sister explained that the applicant’s marriage was a love marriage and that it was not supported by their in-laws. The applicant’s wife said that her parents were still not talking to her and that she does not receive any support from them, nor has she received any threats.

9. I note that the only harm that the applicant or his mother have faced as a result of her political involvement occurred ten years ago. While past events can be suggestive of future circumstances the one-off nature of this event leads me to conclude that the applicant would not face such harm again in the reasonably foreseeable future. I note that the applicant’s wife entered a love marriage with her husband while in India and her parents remain steadfast against the relationship, no harm was sustained to the applicant or his wife while they lived in India and no threats have been received either there or since arriving to Australia. The parents of the applicant’s wife continue not to talk to her since her marriage. I find that the parents-in-law of the applicant do not pose a threat to the applicant. The applicant’s sister said that the applicant would be unable to find work and the wider family would not pay him respect. I note that the applicant is well educated and he is the son of a politician. I do not accept that he would be unable to find work though I accept that it may be hard and unpleasant work or work that he doesn’t like. I accept that the family withholding respect would cause some emotional pain. Overall I find upon return to India the applicant would not face harm such that his removal would be in breach of Australia’s non-refoulement obligations.

   Any other relevant matters

10. The applicant is claimed to be clean for 8 or 9 months. The applicant’s brother-in-law said that he has seen a big change after the birth of his son and has taken on the role of being a father. The family have made submissions that they are ready to provide the applicant with support. The brother-in-law said at the hearing that he didn’t feel it was his place at the early stages of his relationship with the applicant’s sister to interfere with the applicant’s life but now he would be willing to.

11. The applicant’s brother-in-law submitted a post hearing letter stating that he will take responsibility of the applicant financially until he has the right to work in Australia.

12. The applicant submitted evidence that he regularly attended Nanaksar Thath Ishar Darbar temple since April 2018 involving himself in community service work including helping in the community kitchen and maintaining the temple premises. At the hearing the applicant said that this type of activity will help him remain clean.

13. I accept that the applicant has a strong extended family supporting him along with the temple where he can go and be occupied if he is unable to work. I place limited weight against cancelling the applicant’s visa based for the reasons that his support networks may prevent him from breaching the law again but they were largely in place as they are now throughout the period of offending.

14. There is a concern that the applicant’s return to India would lead him to return to his drug habit because of the general availability of narcotics. I acknowledge also the possible relationship between his drug dependency and his mental health. I also note that he has been clean for nearly a year and that his family chose twice to support his return to India to attend detox which was claimed to have worked. There is no reason to believe that if he was to relapse he would be unable to find similar levels of support which could cater to his current circumstances including his inter-related mental health challenges. I find that the applicant would find a lower risk of relapsing in India than he has in Australia and as such I place no weight in his favour on this factor.

15. The applicant claimed that with a visa cancelled in Australia he would be limited in his ability to visit other countries. He has not travelled anywhere else to date but he said that he may want to travel to Canada to see his cousins. I accept that a cancellation may limit his ability to travel to other countries including to visit his cousin in Canada but I find that this is a very small imposition upon him and as such place little weight against the cancellation of his visa.

16. The extent of the applicant’s offending is relevant. I note that he has twice breached his community corrections orders, failed oral fluid test within 3 hours of driving, possessed heroin, intentionally damaged property and committed theft twice for which he served 22 days in jail. Prior to that he had other charges but no conviction recorded. The last conviction was nearly a year prior to this decision. I place substantial weight in favour of cancelling the applicant’s visa based upon his continued and repeated disregard of Australia law and the welfare of Australian citizens.

17. In considering the overall situation, the applicant’s list of crimes is troubling. For a period of 1.5 years he has made numerous visits before a magistrate according to the delegate’s decision which was provided to the Tribunal by the applicant. One would imagine that each time would be the last time but the situation continued. While I acknowledge that the applicant’s crimes were of a minor level and the impact upon others thankfully, was low there is a pattern of offending that continues despite numerous warnings from Australian authorities. Having said that I note that the medical opinion is open to the possibility that his dependence upon drugs affected his ability to determine his own future and I note that he has been clean for nearly a year and that he has substantial support available to him in Australia while they wait for their day in court. I accept that the applicant’s wife and the purpose of their visit to Australia hasn’t been fulfilled to the level she would have liked it, but according to her own evidence it was not a matter out of her control. Despite losing her ability to complete her preferred degree she admirably managed to be admitted to study and complete an MBA positioning her for employment in India or elsewhere. The only interpretation of a purpose for her and her husband to remain in Australia which resembles the original purpose of coming here would be to complete a Masters in IT. But to do this she could return to India, await the outcome of the court case and if found in her favour she could apply for a new visa and return to Australia. Otherwise, any further stay no longer resembles the original purpose of travel. I accept that there are mandatory legal consequences to a cancellation and have taken into consideration the above findings. I also accept the best interests of the child need to be considered and have done so and I note the challenges the applicant would face upon return. I also acknowledge that the applicant has not had any breaches of his visa conditions and his engagement with the Department has been as expected. When taking into consideration these factors and others I have discussed above I find that the visa should be cancelled.

    DECISION

18. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

    Denis Dragovic
    Senior Member