Satnam Singh (Migration)

[2021] AATA 1311

Satnam Singh (Migration) [2021] AATA 1311 (23 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satnam Singh

CASE NUMBER:  2100480

HOME AFFAIRS REFERENCE(S):          BCC2020/1005822

MEMBER:Kira Raif

DATE:23 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 23 February 2021 at 12:53pm

CATCHWORDS
MIGRATION – cancellation – Subclass 020 (Bridging B) visa –criminal conviction – applicant sought judicial review – applicant is presently holding a Bridging E visa – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 6 January 2021 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 applicant is a national of India, born in August 1992. He was granted a Bridging B visa (BVB) in January 2020. In December 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, the Notice) as the delegate formed the view that there are grounds for cancelling the visa under s. 116(1)(g) of the Act. It appears that the applicant did not respond to the Notice and his visa was cancelled on 6 January 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 23 February 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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. It states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (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:  

   (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))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had been granted the Bridging B visa on 20 January 2020 on the basis of judicial review proceedings. It is stated that the Department received information from the NSW Police indicating that the applicant had been convicted of two offences at Manly Local Court:

23/10/19	Drive with High Range PCA	Fine $1,200 Community correction order 18 months Disqualification 12 months
16/04/14	Drive with Middle Range PCA	Fine $700 Disqualification 6 months

1. Having regard to that evidence, the Tribunal finds that the applicant has been convicted of offences in the state of NSW. The Tribunal finds that the applicant was a holder of a Bridging B visa, which is a temporary visa other than a Bridging Subclass 050 and Subclass 051 visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

2. 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

3. 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

4. The primary decision record indicates that the applicant previously held a Student visa which was granted in July 2011 and was to be in effect until March 2014. The applicant made applications for other Student visas. The most recent application was made on 2 November 2016, that application was refused by the delegate and affirmed by the AAT on 2 August 2017. The applicant sought judicial review in relation to that decision and was granted a Bridging B visa in association with that review.

5. The applicant told the Tribunal that he has not yet been given a court date in relation to his judicial review application. He states that he had been granted a Bridging A visa once he made the applicant for judicial review and then a Bridging B visa when he wanted to travel overseas. The applicant told the Tribunal that he presently holds a Bridging E visa and the Tribunal finds that he can await the outcome of his judicial review application while holding the Bridging E visa. The Tribunal finds that the applicant is fulfilling the purpose of his travel to Australia and stay in Australia. There is nothing to suggest the applicant has a compelling need to remain in Australia. 

   The extent of compliance with visa conditions

6. There is no evidence indicating that the applicant had not complied with the conditions of his Bridging visa. The primary decision record indicates that his Student visa was previously cancelled for non-compliance with conditions but the cancellation was set aside by the Tribunal.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

7. The applicant told the Tribunal that if his visa is cancelled, he cannot return to India due to Covid and also there would be problems for his family who are supporting him as they are presently in trouble with the authorities. The Tribunal is mindful that the applicant presented no evidence of his family facing any trouble in India and the Tribunal is not prepared to accept the applicant’s claims without any supporting evidence. In any case, the applicant holds a Bridging E visa and is eligible to seek a Bridging E visa on the basis of his ongoing judicial review application. That is, the applicant would be able to remain in Australia as a holder of a Bridging E visa and he would not be required to leave Australia as a consequence of his Bridging B visa being cancelled.

8. The applicant states that he needs to obtain work rights but the Tribunal is mindful that he can seek work rights as a holder of the Bridging E visa. The applicant concedes that if he can remain in Australia, there would be no hardship as a result of his visa being cancelled. The Tribunal does not consider that hardship would be caused to the applicant if his visa is cancelled.

   Circumstances in which ground of cancellation arose.

9. The ground for cancellation arises because the applicant has been convicted of offences. The applicant told the Tribunal that he realised he made a mistake and he has done some courses about traffic offences. The Tribunal does not consider that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

   Past and present behaviour of the visa holder towards the department

10. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

11. There are no consequential cancellations.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

12. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he would be detained indefinitely and the applicant’s evidence to the Tribunal is that he has been granted another Bridging visa. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period if he is to make an application for a visa offshore and very limited types of visas he may be able to apply onshore. The applicant is presently holding a Bridging E visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

13. The applicant states that his parents are farmers and he referred to the farmers’ protests in India and states that it may affect him in the future. The Tribunal considers the applicant’s evidence entirely uninformative and extremely vague. The applicant failed to provide any details and supporting evidence about such protests, how these had affected his parents and how these claimed matters would affect him. He has not made any mention of such problems in his interactions with the delegate or with the Tribunal at any time prior to the hearing, despite being represented by a migration agent in these proceedings. The Tribunal considers the applicant’s claims to be a recent invention and does not accept his evidence that he or his parents are, or will be, in any way affected by any protests. In any event, as noted above, the applicant has been granted another Bridging visa and he can remain in Australia while he holds such a visa and is awaiting the outcome of his judicial review application. The Tribunal finds that the applicant would not be required to leave Australia as a consequence of his Bridging B visa being cancelled. The Tribunal finds that the Australia’s protection obligations do not arise in this case.

14. There are no children who would be affected by the cancellation of the visa. The applicant’s immediate family are overseas, and he has no family in Australia. The principle of family unity would not be adversely affected by the cancellation of the visa.

    Any other relevant matters

15. The applicant told the Tribunal that if his bridging E visa continues, he would not face any problems.

16. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant has been convicted of offences. The  Tribunal has formed the view that the cancellation of the visa would not cause any hardship to the applicant as he would be permitted to remain in Australia holding another Bridging visa. There are no children affected by the cancellation and the Tribunal has formed the view that Australia’s non-refoulement obligations do not arise in this case. The Tribunal is not satisfied there would be any practical difference to the applicant’s residence in Australia as a result of the cancellation of his Bridging B visa, given that he holds another Bridging visa and, to the extent that the applicant needs permission to work, he is able to make that application as a holder of a Bridging E visa.

17. The Tribunal  places weight on the circumstances in which the ground for cancellation occurred. The applicant has been convicted of two offences and the Tribunal considers drink driving offences to be serious, as they pose significant threat to the safety of others. The applicant states that he realises he had made mistakes and has completed courses but the Tribunal is mindful that the offences occurred five years apart and the applicant had ample time after the first conviction to appreciate the significance of his conduct.

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

    DECISION

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

    Kira Raif
    Senior Member