Sandhu (Migration) - [2025] ARTA 424

SANDHU (MIGRATION) [2025] ARTA 424 (10 FEBRUARY 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Mr Satnam Singh Sandhu
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2445322
Tribunal:General Member A. Dronjic
Place:Melbourne
Date:10 February 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 10 February 2025 at 10:26am

CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – criminal convictions and community corrections order – discretion to cancel visa – visa granted as member of family unit of wife – relationship ceased – no bridging visa held – wife and child’s application for permanent residency in progress – no supporting evidence for claim of reconciliation with wife – circumstances of offences – compliance with corrections order – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g)
Migration Regulation 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s.116(1) (g) of the Act on the basis that a prescribed ground for cancelling a visa applies to the holder. In the present application, the prescribed ground for cancellation is found in reg.2.43(1) (oa) of the Migrations Regulations 1994 (the Regulations). The delegate found that the applicant has been convicted of several offences against a law of the Commonwealth, a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background to the cancellation of the applicant’s visa
The decision record of 18 November 2024 sets out the reasons for the delegate’s decision to cancel the applicant’s visa. The Tribunal summarises those reasons and findings as follows:
·On 17 February 2022, the applicant was granted a Subclass 485 visa to remain, valid until 14 April 2025. The applicant’s visa was granted on the basis that he is a member of the family unit of Ms Parminder Kaur Bhullar.
·The Department has been notified by the Australian Border Force (ABF) that the visa holder has been convicted of several offences in the state of Victoria, including:
oAttempt to commit indictable offence;
oCommit indictable offence whilst on bail (2 charges);
oContravene a conduct condition of bail;
oDeal property suspected proceed of crime (2 Charges);
oFail to answer bail;
oPossess Heroin and Methamphetamine; and
oRetention of stolen goods and Theft from shop (Shop steal x 8 Charges), to which the visa holder was sentenced to a 1-year community corrections order.
·A Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant on 30 October 2024.
·The applicant responded to the NOICC on 13 November 2024, confirming that he has a criminal record and asking the delegate to exercise his or her discretion and not cancel his visa. In his response, Mr Sandhu also informed the Department that the relationship with Ms Bhullar has ended.
·On 18 November 2024, after considering his or her discretion not to cancel visa, the delegate proceeded to cancel the applicant’s visa.
The applicant applied to the Tribunal on 24 November 2024 for review of the visa cancellation and with his application submitted a copy of the primary decision record.
On 20 December 2024, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 4 February 2025. On the applicant’s request, the hearing was re-scheduled for 6 February 2025.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal informed the applicant that his visa was cancelled under s.116 (1)(g) of the Act. The Tribunal further explained to the applicant that, if satisfied that a ground for cancellation is made it out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The applicant is 33 years of age and a citizen of India. His father has a farm and live in India. His two siblings live in Australia and the applicant claims that both are Australian citizens. Mr Sandhu claims that he has completed a Bachelor of Law degree in India and that, prior to arriving to Australia, he worked at his father’s farm. He stated that he does not own any property under his name.
He came to Australia on 12 April 2022 as a dependent holder of a Subclass 485 visa that was granted on 17 February 2022 and was, but for the cancellation, to remain valid until 14 April 2025. His wife, Ms Bhullar was the primary visa applicant. The applicant and Ms Bhullar have a child born in 2017, who was also included in the visa application.
The applicant gave evidence that he currently resides at rented premises in Tarneit, Victoria, together with his wife and child. His wife is employed as an accountant. The applicant claims that he is not working as he is prevented by the conditions imposed on his visa from doing so. He was last employed as a truck-driver before his visa was cancelled by the Department. He claims that his brother provides him with financial support.
The Tribunal noted that, according to his movement record, he does not hold any visa and has been illegally in Australia since his visa was cancelled on 18 November 2024. The applicant claimed in his evidence that his migration agent applied for a bridging visa E. In support of this claim, he telephoned a person he claims to be his migration agent during the hearing. During this conversation, the person who answered the applicant’s call stated that he is not acting as his migration agent and that he never applied for a bridging visa E on behalf of the applicant. The applicant then conceded that he does not hold a bridging visa E.
When questioned what steps he had undertaken to legalise his status in Australia, the applicant gave undertaking that he will attend the offices of the Department after the hearing. The Tribunal explained that his past and present behaviour towards the Department is relevant consideration in the exercise of its discretion.
The Tribunal noted that in his response to the NOICC of 13 November 2024, he stated that he was separated from his wife. He confirmed that he separated from his wife in December 2023. His wife and son moved their residence and started living with Ms Bhullar’s brother. In his evidence, the applicant claims he and Ms Bhullar reconciled in August or September 2024. He further stated that both Ms Bhullar and his son moved back to his residence at Tarneit some 5 months ago.
When questioned, the applicant stated that on 19 December 2024, his wife applied for a permanent visa (Subclass 491). Their child was included in that visa application but not the applicant.
When questioned as to why Ms Bhullar did not include him in the permanent visa application, the applicant stated that she did not want to jeopardise her chances of obtaining permanent residence in Australia.
When the Tribunal questioned the applicant if he committed any offences since he was issued a Community Correction Order (CCO) on 25 October 2024, the applicant stated that he did not. He further stated that he is fully complying with the CCO which remains in place until 25 October 2025. He gave evidence that he is no longer using drugs and he had completed CIPS program designed to help with his drugs rehabilitation treatment.
The Tribunal noted that the applicant requested a hearing postponement because he had to attend a mention at the Werribee Magistrate Court on 4 February 2025. The applicant stated that he was charged with two additional offences (theft), both alleged to have been committed before August 2024 and prior to issuance of the CCO.
The Tribunal noted that in his response to the NOICC of 13 November 2024, he conceded that the ground for the visa cancellation is made out as he was convicted of several offences against the law of the state of Victoria. In his evidence, he reiterated that he concedes that the ground for cancellation was made up.
The Tribunal explained to the applicant that, based on the evidence before it, the Tribunal is satisfied that ground for visa cancellation in s 116(1)(g) is made out and that the Tribunal will proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances.
The Tribunal noted that, in his response to the NOICC, the applicant submitted a written statement to the Department stating the reasons why his visa should not be cancelled. The Tribunal asked the applicant if there are any other circumstances, in addition to those raised in his response to the NOICC, that he wanted to raise with the Tribunal.
The applicant reiterated that he attended drug therapy sessions, that he is remorseful for the things he had done in the past and that he will not commit any crimes in the future.
The Tribunal noted that the applicant’s temporary visa was, but for the cancellation, valid until 14 April 2025 and that, according to his own evidence, his wife did not include him in her permanent visa application as a family member. The applicant stated that he had obtained a successful skills assessment for farming and that, according to his belief, he will be able to apply for a permanent via based on his skills assessment.
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). The Migration Regulations 1994 (Cth) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.

s 116(1)(g) - prescribed ground

A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that 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. If a visa may be cancelled under s 116(1)(g), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply.
For the purposes of s 116(1)(g), the grounds prescribed include:

reg 2.43(1)(oa), under which, 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 - 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));

Based on the applicant’s movement records and his oral evidence, the Tribunal is satisfied that the applicant was a holder of a subclass 485 visa which is a temporary visa other than a subclass 050 Bridging visa, a subclass 051 Bridging visa or a subclass 444 Special Category visa.
Based on the evidence before it, including the applicant’s oral evidence given at the hearing, the Tribunal is satisfied that the applicant was convicted of a several offences against a law of a state of Victoria and that the County Court of Victoria issued the applicant with a 12 months CCO.
Accordingly, the Tribunal finds that a ground exists to cancel the applicant’s visa under s116(1)(g) of the Migration Act, based on the prescribed ground at reg 2.43(1)(oa).
As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

Except for visas cancelled based on a breach of visa condition under s 116(1)(b), 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 policy guidelines (‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’), which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it. Specifically, the Courts have held that the PAM3 guidelines constitute no more than an administrative advisory guide to decision makers in relation to the application of the Act and Regulations and that they are incapable of being elevated into legally necessary or relevant considerations. Indeed, there is judicial authority to the effect that the policy guidelines in PAM3 cannot go beyond the wording of the legislation, even where they are favourable to an applicant.
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.
Subclass 485 visa is a temporary visa which enables the visa holder to remain in Australia for a specified period. In the present matter, the applicant’s visa would, but for the cancellation, cease on 14 April 2025.
The applicant was granted the visa as a member of the family unit of Ms Bhullar who was the primary visa applicant. The purpose of that visa and of the applicant’s stay in Australia was to enable the applicant to remain with his spouse.
At the hearing, the applicant gave evidence that he separated from his wife in December 2023. Ms Bhullar and their son left because of the applicant’s drugs use. He claims that he reconciled with his wife and that Ms Bhullar, and their son moved back to his residence at Tarneit some 5 months ago. Ms Bhullar did not attend the Tribunal hearing to support this claim. Nor she provided statutory declaration in support of the applicant’s claim. On the contrary, she decided not to include the applicant in her permanent visa application.
As the applicant’s claim that he reconciled with his wife was not supported by any independent evidence, the Tribunal gives little weight to this consideration against cancelling the visa.
In relation to a compelling need to remain in Australia, the applicant submitted that he seeks to remain in Australia to be with his wife and son. As earlier noted, a subclass 485 visa is a temporary visa that enables a holder to remain in Australia for a specified period. In the present case, the applicant’s visa would, but for the cancellation, cease on 14 April 2025 and would not entitle the applicant to remain in Australia after that date.
The extent of compliance with visa conditions
There is no evidence before the Tribunal of any non-compliance with visa conditions and for this reason the Tribunal gives this consideration some weight against cancelling the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In his response to the NOICC, the applicant claims that the visa cancellation will cause him significant hardships. The applicant claims, and the Tribunal accepts, that his wife and son are currently residing in Australia. The Tribunal acknowledges that Ms Bhullar and their son applied for permanent residency in Australia. This is an ongoing application, and the Tribunal has no information before it as to likelihood of its success. In any case, Ms Bhullar decided not to include the applicant in her permanent visa application. The Tribunal note that, if Ms Bhullar is granted permanent residency in Australia, there is nothing to prevent the applicant to apply for the same visa as a subsequent entrant if that is what Ms Bhullar and the applicant decide to do.
The Tribunal accepts that the applicant has two siblings living in Australia and that he established some ties to the Australian community during his three years stay in Australia. The Tribunal does not accept that the applicant has no family in India as, according to his own evidence, his father lives in India and operates a farming business.
The Tribunal considered the applicant’s claims that he had completed a Bachelor of Laws degree in India and that he worked on his father’s farm. Based on this evidence the Tribunal is satisfied that the applicant would be able to re-establish himself in India given his education and work experience.
The Tribunal accepts that the applicant may suffer some emotional and financial hardship if the visa remains cancelled. Balanced against any potential hardship to the applicant that may result from the visa cancellation, is the fact that the applicant came to Australia on a temporary visa, which created no expectation of remaining in Australia permanently.
For the reasons stated above, the Tribunal gives this consideration limited weight against cancelling the visa.
Circumstances in which ground of cancellation arose.
The ground for cancellation arises because the applicant was convicted of a several offences against a law of a state of Victoria. In his response to the NOICC, the applicant claims that death of his mother, COVID-19 pandemic and loss of his employment had a profound impact in his life and well-being. There is no evidence before the Tribunal that would indicate when the applicant’s mother passed away. According to the primary decision record, the applicant committed crimes in August 2024, well after the COVID pandemic was over.
Based on the evidence before it, the Tribunal does not accept that circumstances that led to him committing the offences were outside of his control. Accordingly, the Tribunal gives this consideration a significant weight in favour of cancelling the visa.
Past and present conduct of the visa holder towards the Department
The applicant visa was cancelled on 18 November 2024, and he remains in Australia as an unlawful non-citizen. The Tribunal does not accept the applicant’s explanation that his migration agent applied on his behalf for a bridging visa E. During the hearing, the person the applicant considered to be his migration agent stated that he is not acting as his migration agent and that he never applied for a bridging visa E on behalf of the applicant. Eventually, the applicant conceded that he does not hold any visa that would entitle him to remain in Australia lawfully. The Tribunal give little weigh to the applicant’s undertaking that he will attend the offices of the Department after the hearing to legalise his visa status in Australia.

Accordingly, the Tribunal gives this consideration a significant weight in favour of cancelling the visa.
Whether there would be consequential cancellations under s 140
There are no consequential cancellations under s 140.
Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal.
If the applicant’s visa remains cancelled and unless he is granted another visa, the applicant will remain an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia.
The Tribunal is unable to make findings as to whether the applicant will be affected by the public interest criterion (PIC) 4014 as this will depend on the way the applicant leaves Australia. These are the intended consequences of visa cancellation, and the Tribunal is not persuaded that there is anything in this factor that weighs against the exercise of the relevant discretion to cancel the visa.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia’s non-refoulement obligations.
In considering whether to exercise its discretion to cancel the applicant’s visa, the policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR).
The applicant does not claim that Australia’s non-refoulement obligations arise in his case and the Tribunal is satisfied that the Refugees Convention and the Refugees Protocol would not be breached by the cancellation.
The Tribunal acknowledges that, as a signatory to the CRC, Australia has an obligation to ensure that in all actions concerning children, the best interest of the child is a primary consideration.
The applicant has a seven-year-old son from his marriage with Ms Bhullar, who is an Indian citizen and is residing in Australia as a holder of a temporary visa that will cease on 14 April 2025. The Tribunal accepts that, on 19 December 2024, Ms Bhullar and her son applied for a permanent residency in Australia. Despite the applicant’s claim that he reconciled with his wife, he was not included in the permanent visa application and that is the decision made by the applicant and his wife.
While acknowledging the applicant’s claim that he continues to provide emotional support to his son, the Tribunal is satisfied that the ability of Australia to comply with the principles of family unity under the CRC and the ICCPR would not be affected by the cancellation of the applicant’s visa as the family would not be separated because of the cancellation.
Having had regard to the findings above and the circumstances of the case, the Tribunal is satisfied that the reasons for cancelling the visa outweigh the reasons for not cancelling the visa. The Tribunal finds that cancelling the applicant’s visa is the correct and preferable decision.

DECISION

The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Date of hearing: 6 February 2025
Representative for the Applicant: N/A