Pudasaini (Migration)

[2022] AATA 1233

Pudasaini (Migration) [2022] AATA 1233 (12 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pujan Pudasaini

REPRESENTATIVE:  Mr Ujwol Shrestha (MARN: 1685463)

CASE NUMBER:  2118527

HOME AFFAIRS REFERENCE(S):          BCC2021/887180

MEMBER:Brendan Darcy

DATE:12 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 April 2022 at 9:24am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of an offence – reckless driving – defective procedure in cancelling the visa – limited academic progress – impact of the COVID-19 pandemic – decision under review set aside  

LEGISLATION

Migration Act 1958, ss 48, 107, 109, 116, 127
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.43
Road Traffic Act 1974 (WA), s 60
Sentencing Act 1995 (WA), s 45

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 November 2021 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant had been convicted of Reckless Driving at a speed of 155km/h or more in the Perth Magistrates Court on 27 May 2021, this meeting a prescribed condition pursuant to reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (the Regulations) that the Minister is satisfied the visa holder has been convicted of an offence against a law of the Commonwealth, a State or Territory.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal at 11.30am on 11 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicant was represented in relation to the review, although he did not participate in the hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

   Background

8. The applicant was born on 17 November 2000 in Kathmandu, Nepal, and he is a citizen of Nepal.

9. ICSE Records show the applicant was granted a TU 500 Student visa on 12 February 2020 and arrived in Australia on 22 February 2020. The applicant was enrolled in set of coursework relating to hospitality leading to a bachelor’s degree in hospitality and tourism management.

10. The applicant has remained lawfully in Australia since, being granted a Bridging visa E following the cancellation of the TU 500 Student visa on 22 December 2021.

    Notice of intention to consider cancellation

11. The Department file relating to the cancellation – BCC2021/887180 – shows that the Department’s General Cancellation Network was alerted to the applicant having been charged with Reckless Driving for travelling at 155 km/h in a 100 km/h zone, an offence pursuant to s 60 of the Road Traffic Act 1974 (WA). The applicant had made full admissions in an interview with Western Australia Police and was due to appear in court on 29 April 2021.[1]

    [1] BCC2021/887180 CLD2021/10452094

12. The Department received a report from the Australian Criminal Intelligence Commission (ACIC) on 31 August 2021 showing that on 27 May 2021 the applicant had been convicted of Reckless Driving at a speed of 155 km/h or more with an outcome of a licence disqualification for 6 months and a fine of $1,500 (ACIC Report).[2]

    [2] BCC2021/887180 CLD2021/24380489

13. A Department officer then contacted the Perth Magistrates Court on 31 August 2021 to confirm if the charge resulted in a conviction.[3] A registrar of the Perth Magistrates Court replied the same day confirming that the applicant had been convicted.[4]

    [3] BCC2021/887180 CLD2021/24380966

    [4] BCC2021/887180 CLD2021/24436416

14. On 15 October 2021 a delegate of the Minister dispatched a notice of intention to consider cancellation (NOICC)[5] under s 116 of the Act. The particular grounds for cancellation were as follows:

    ·Cancellation was being considered under the power granted pursuant to s 116(1)(g) of the Act and reg 2.43(1)(oa) of the Regulations.

    ·The particular facts relied on to make out the grounds for cancellation were that the ACIC provided information to the Department that on 27 May 2021 the applicant had been convicted of Reckless Driving at a speed of 155 km/h or more with an outcome of a licence disqualification for 6 months and a fine of $1,500.

    ·Resulting from the above it appeared to the delegate that grounds existed under the relevant power in that the applicant had been convicted of an offence against a law in the State of Western Australia (WA).

    [5] BCC2021/887180 ADD2021/5644663

15. The NOICC evoked s 116(1)(g) as the cancellation power, the notice had been issued under s 116 of the Act.

16. As the NOICC was dispatched by registered mail the applicant had 12 working days to provide a response to the delegate.[6] The effective date by which the applicant was to respond in writing was 2 November 2021. A courtesy copy was dispatched to the applicant by email on 15 October 2021.[7]

    [6] BCC2021/887180 CLD2021/28487158

    [7] BCC2021/887180 CLD2021/28489591

17. No response was received by the Department and on 29 November 2021 the delegate cancelled the applicant’s visa pursuant to s 116 of the Act on the grounds set out in the NOICC.[8]

    [8] BCC2021/887180 CLD2021/33952820

18. The applicant was notified by registered post with a copy sent by email. The notification letter sent to the applicant on the same day as the delegate’s decision noted that the visa was cancelled pursuant to s 109 rather than s 116.[9]

    [9] BCC2021/887180 CLD2021/33952820

19. On 1 December 2021 the applicant contacted the Department by email saying that he had not been checking his email recently due to a high number of scam emails being received. He had understood that the NOICC had been issued on the basis he had not paid the fines imposed by the court, but as he had paid the fines, he took no further action until receiving the cancellation notice. He attached evidence showing the fines have been paid and asked the Department to reconsider.[10]

    [10] BCC2021/887180 ADD2021/6604744

20. On 2 December 2021 a Department officer wrote to the applicant by email and informed them that the applicant would need to seek review with the Tribunal.[11]

    [11] BCC2021/887180 CLD2021/34600596

    Before the Tribunal

21. The applicant lodged a valid application for review before the Tribunal on 7 December 2021.

22. On 8 December 2021 in response to a request from Tribunal Officers the applicant supplied the Tribunal with a copy of the delegate’s decision, the notification letter, and the biometric information page of his Nepali passport.

23. A number of submissions were made to the Tribunal on 22 December 2021 by the applicant’s authorised representative. These include:

    ·Notification to the Tribunal of the appointment of the representative.

    ·Written submissions of the representative.

    ·A court hearing and prosecution notice issued on 3 April 2021 by the Magistrates Court of WA to the applicant.

    ·A statement of material facts in the applicant’s criminal matter made by First Class Constable T Wicks of the WA Police.

    ·A notice of intention to enforce (Court Fine) issued by the WA Fines Enforcement Agency to the applicant on 25 July 2021.

    ·A screenshot of the WA eCourts Portal showing the applicant had paid their fines in full as at 12 December 2021.

    ·A copy of the notification of visa grant sent to the applicant on 12 February 2020.

    ·Certificates of Enrolment for the applicant showing his enrolment in a Certificate III in commercial cookery from 27 September to 5 December 2021; Certificate IV in commercial cookery commencing in September 2022; and Diploma of Hospitality Management starting in April 2023.

    ·A copy of the applicant’s residential tenancy agreement.

24. The written submissions can be summarised as follows:

    ·On 20 March 2021 at 12:59 am the applicant was driving a motorcycle in a northerly direction on the Tonkin Highway in Embleton WA. He was detected by fixed speed camera travelling at a speed of 155 km/h.

    ·On 29 March 2021 he attended Kensington Police Station and was spoken to about the matter, he admitted to being the rider at the time of the offence and stated he had not realised how fast he was going.

    ·The applicant’s motorcycle was impounded, and he was told he would be summonsed to appear in court, he received the court hearing notice and prosecution notice dated 3 April 2021.

    ·The applicant did not attend court but was otherwise aware of and paid the infringements imposed.

    ·Restating that the applicant had not responded to the NOICC as he was mistakenly under the belief it related to the non-payment of infringements which he had already paid and recent encounters with scammers.

    ·The representative submitted that the Tribunal should look to the relatively young age of the applicant and his commitment to studies, that he had acknowledged his mistake that resulted in the offence and had cooperated with police and other legal requirements.

    ·He has otherwise conducted himself in a lawful fashion while in Australia.

25. In response to the hearing invitation the representative made submissions on 23 March 2022, but these were in essence the same as those lodged with the Tribunal on 22 December 2021.

26. At the scheduled hearing, the applicant acknowledged that he was convicted of driving recklessly as outlined in the NOICC.

    Does the ground for cancellation exist?

    s 116(1)(g) – prescribed ground

27. 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 reg 2.43 of the Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant:

    Reg 2.43 Grounds for cancellation of visa

    (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    …

    (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));

28. As explained in the scheduled hearing, the Tribunal has identified that while the validly issued NOICC had particularised the prescribed grounds for cancelling under s 116(1)(g) and reg 2.43(1)(oa), the notification letter dated 22 December 2021 is titled ‘Notification of Cancellation under s 109’. The Tribunal had indicated that the delegate notified the applicant that he or she exercised discretion to cancel the applicant’s student visa under s 109. The power to cancel only arises if there is non-compliance with ss 101–105 or s 107(2): s 107(1). That notice of intention to consider cancellation needs to be a s 107 notice.

29. However, on further examination after the hearing, the Tribunal finds that the overall weight of evidence arising from the NOICC from the delegate’s decision record indicates that the correct power for the cancellation of this visa was s 116.

30. The Tribunal accepts there is no s 107 notice of intention to consider cancellation while there is a notification letter attached to the decision record that relied on s 109. The applicant’s notice to cancel the visa should have relied on s 116(1)(g) as the power for cancellation. In this regard, the Tribunal is satisfied there was defective procedure in cancelling this visa under review under s 116(1)(g).

31. However, s 127(3) specifies that defective notice does not affect the validity of the cancellation under s 116. Any defect in the procedure for a s 116 cancellation does not determine the Tribunal’s powers on review. It is not apparent that there is any defect in the s 116 notice of intention to consider cancellation.

32. The Tribunal notes there is no disagreement that the applicant has a recorded conviction against his name on the basis of breaching a law in an Australian State, namely the State of Western Australia.

33. Once charged under the Road Traffic Act 1974 (WA) there is no mechanism for the judicial officer to make a finding of guilt without then recording a conviction. Neither the Road Traffic Act 1974 (WA) or the Sentencing Act 1995 (WA) allows discretion for a conviction not to be recorded once a finding of guilt has been made.

34. While s 45 of the Sentencing Act 1995 (WA) allows that an offender may apply to the Court for an order that the conviction is ‘spent’ at the time of sentencing, this does not protect an offender, including the applicant, from the operation of reg 2.43(1)(oa).

35. Therefore, the Tribunal is satisfied there are prescribed grounds under reg 2.43(1)(oa) on which to cancel his visa under s 116(1)(g) of the Act.

36. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists.

    CONSIDERATION TO CANCEL THE VISA

37. Having found that the prescribed grounds for the visa to be cancelled under s 116(1)(g) exist, the Tribunal must consider whether the visa should be cancelled.

38. When the applicant was granted a student visa, the applicant enrolled in a diploma leading to a bachelor’s degree related to hospitality and tourism management. Soon after the applicant arrived in Australia the applicant was required to take classes online and failed his first semester. Soon after the applicant enrolled in a set of coursework related to commercial cookery leading to a diploma of hospitality management. His studying in Australia is the first time the applicant has not been under parental supervision. Being immature and distracted from studies is typical among students under the age of 25. The Tribunal accepts it takes some students time to adjust to self-motivating to undertake full-time studies in such circumstances and this accounts for the applicant’s inability to demonstrate strong academic progress. The applicant has also provided confirmations of enrolment indicating he is ready to resume his studies as a student visa holder in coursework relevant to gaining a qualification in hospitality. The applicant has also relayed to the Tribunal that he is fearful of returning to Nepal without a qualification, which will affect him and his family. Since the applicant’s arrival he has had sufficient time to reflect on the importance of conscientious studying, the Tribunal is satisfied the purpose of this travel to Australia is to study full-time and that he has the capacity to academically progress as planned.

39. There is no evidence that the applicant has been non-compliant with any of the visa conditions imposed on his student visa or his current bridging visa. There is no evidence he has been significantly uncooperative with either the Department or the Tribunal. Accordingly, the Tribunal places some weight on these factors in favour of the visa under review being reinstated.

40. With regards to any hardships arising from the cancellation of this visa, the applicant has claimed his grandfather has medical issues and that he contracted COVID-19 in March 2021. The applicant claimed that he was very close to his grandfather and this news had been a shock to him. At that point, the applicant claimed he even thought about going back to Nepal because it could be the last chance to see his grandfather. On top of that, lockdown in Australia, it was claimed, his studies, work and loneliness were adding more pressure in his life. He was very stressed and was not sure what to do next. The impact of restrictions on people due to the various governmental responses to the COVID-19 pandemic was varied. The Tribunal noted that the applicant was living in Western Australia which had not been subjected to extensive lockdowns at any time during the past two years of the pandemic. The Tribunal does not accept lockdowns affected the applicant in any genuine or relevant manner. It accepts the applicant has experienced and continues to experience emotional hardship by not being surrounded by family members and by the risk of not completing qualifications for which he has travelled to Australia. The applicant has failed to persuade the Tribunal he will suffer significant emotional or financial hardship, should his visa remain cancelled.

41. In considering whether the applicant experienced any extenuating circumstances which were beyond his control at the time of offending, the Tribunal has considered the submitted Statement of Material Facts dated 3 April 2021. The statements outlined that the applicant was recklessly driving a motorcycle at 12.59am on Saturday, 20 March 2021. The offending was record on a fixed speed camera which recorded the applicant travelling at a speed of 155 km/h on the Tonkin Highway in Embleton (metropolitan Perth). The applicant provided the explanation to the WA Police that he was not used to how powerful his motorcycle was and did not realise how fast he was travelling. Neither of these explanations amount to the applicant having extenuating circumstances or circumstances which were beyond his control at the time of the offending. In the legal submission to the Tribunal, the applicant further claimed his mind was pre-occupied with the stressors of life at the time of the offending. Again, this is an unconvincing reason for ignoring road safety rules and risking his and other persons’ lives through reckless driving. These late explanations do not amount to extenuating circumstances beyond the applicant’s control at the time of offending. The Tribunal accordingly places no weight on these considerations about extenuating circumstances at the time of the applicant’s offending either in favour of or against the visa remaining cancelled.

42. If the visa is cancelled, a legal consequence would be that the applicant would not be able to apply for another student visa. Subject to any appeal rights he may exercise, if the applicant chooses to remain in Australia unlawfully, he could be liable for removal and detention. The applicant could also be precluded from being granted a further visa for a period of three years because of Public Interest Criterion 4013. The Tribunal is satisfied that those consequences are intended lawful consequences of the legislation and, in the applicant’s case, do not mean that the visa should not be cancelled.

43. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligations. The applicant is not married and has no children. The applicant has not made an application for a protection visa, or any other type of Australian visa. Nor has the applicant raised any concern about any barriers that would prevent him from applying for another type of Australian visa. Accordingly, the Tribunal finds this consideration neutral and does not weigh this consideration either in support of or against cancelling the visa.

1. The Tribunal has considered the seriousness of the offending in the context of the available knowledge about the applicant’s character. The applicant has paid his fine, albeit belatedly, as directed in the penalties issued by a court order. There is no evidence the applicant has undertaken any further offending or that he has been further charged or breached the disqualification period for driving with which the applicant had been penalised. There is no evidence he was convicted of an offence prior to arriving in Australia. During the hearing, the applicant expressed his remorse about the offending which the Tribunal accepts as genuinely heartfelt. Overall, the applicant appears to be a person of good character and it places significant weight on his visa not remaining cancelled.

2. The offending itself was irresponsible and not trivial. The applicant potentially risked his own life as well as the lives of another commuter. Neither the Road Traffic Act 1974 (WA) nor the Sentencing Act 1995 (WA) allows discretion for a conviction not to be recorded once a finding of guilt has been made. However, this should be contrasted with the operation of similar laws in other State jurisdictions, such as in the State of Victoria. In the same circumstances as the applicant – speeding at 155 km/h in a 100 km/h zone – the driver would be liable to be charged with an offence pursuant to s 64(2A) of the Road Safety Act 1986 (Vic) the penalty for which is roughly analogous to that for an offence pursuant to s 60A of the Road Traffic Act 1974 (WA). The Sentencing Act 1991 (Vic) allows judicial officers to make orders which would have the same effect as the punishment the applicant received, without recording a conviction. This would have the effect of not engaging reg 2.43(1)(oa) at all. The Tribunal considers this relevant in illustrating the seriousness of the offending which led to the grounds for cancellation as being at the lower end of offending. The conviction being at the lower end of offending was illustrated by the applicant being subjected to the financial and non-financial penalties which did not include imprisonment or community correction orders. In the context where no prior charges or convictions are attached to the applicant’s name, the Tribunal places only some but not significant or considerable weight on the conviction in having this visa cancelled.

   Conclusion

3. The Tribunal is satisfied that the ground for cancellation under a prescribed ground under s 116(1)(g) exists.

4. In deciding whether to exercise its discretion to cancel the visa, the Tribunal placed only an insignificant amount of weight on the applicant’s sole conviction which led to the grounds for cancellation as it was at the low end of offending. Other evidence pointed to the applicant being an otherwise genuine student and of good character.

5. Considering the circumstances as a whole, the Tribunal finds that the factors that weigh in favour of cancelling the visa do not outweigh the factors against cancelling the visa.

6. The Tribunal concludes that the visa should not be cancelled as the correct and preferrable decision to make on the material before it.

   DECISION

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Brendan Darcy
   Member