Sekhon (Migration)

[2019] AATA 1781

Sekhon (Migration) [2019] AATA 1781 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amritpal Singh Sekhon

CASE NUMBER:  1711931

HOME AFFAIRS REFERENCE(S):           BCC2017/1020805

MEMBER:Justin Owen

DATE:19 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 19 March 2019 at 10:21am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – criminal conviction – physical violence against his wife – mental health claims – dependent of a student visa holder – relationship breakdown – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198
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 31 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of a number of criminal offences and, after considering all the available information, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. 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. On 18 February 2019 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments.  The applicant (as well as Ms Shrinder Kaur the applicant’s social worker) subsequently contacted the Tribunal to request the hearing be adjourned to a later date, suggesting May 2019 on the basis the applicant wished to seek legal advice or representation.  Ms Kaur stated that the 14 day notification period was not sufficient for the applicant to seek legal representation (T1, Folio.24).  The Tribunal noted that the applicant had applied for review with the Tribunal on 5 June 2017, over twenty months earlier.  At that time the Tribunal pointed out to the applicant that if he wished to provide material or written arguments for the Tribunal to consider then he should do so as soon as possible.  The Tribunal also pointed out to him at that time that he could seek advice, assistance and legal representation.  The Tribunal furthermore notes the President’s Direction which states relevantly: 5.2 Requests for adjournment of a scheduled hearing will not be granted simply on the basis of the convenience of the review applicant or their representative. Where the AAT has given sufficient advance notice of the hearing, adjournments will not be granted on the basis of a need to gather further evidence unless cogent reasons can be shown. The Tribunal did not consider the applicant’s claimed failure to seek any assistance or advice in relation to his review for well over a year and a half constitutes a valid reason in its own right to cancel the scheduled hearing.  The Tribunal considered the applicant had been provided already with a significant amount of time to prepare for his case.  The Tribunal declined the request for an adjournment.  On 1 March 2019 the applicant sent the Tribunal a completed invitation to hearing invitation form agreeing to attend the hearing with Ms Kaur (T1, Folio. 38-39).  Both the applicant and Ms Kaur attended the hearing and provided significant oral testimony at the hearing and provided written evidence in support of the applicant.

4. The applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Shrinder Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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(oa) is relevant.

8. According to the delegate’s decision record that the applicant supplied to the Tribunal, the applicant was convicted of the following offences: 

   ·     Common Assault (DV) – offence date 9 May 2016

   ·     Drive with Middle Range PCA – offence date 27 May 2016

   ·     Disobey No Right Turn Sign – motor vehicle – offence date 16 June 2016

   ·     Drive etc when visiting privileges withdrawn –offence date 16 June 2016

   ·     Drive with Middle Range PCA – offence date 27 June 20176

   ·     Driving when visiting privileges withdrawn – offence date 27 June 2016 

9. At the hearing the applicant also submitted that he had been convicted again with Drive with Middle Range PCA on 16 July 2018. A copy of the applicant’s Good Behaviour Bond from the Local Court dated 16 July 2018 was provided by the applicant to the Tribunal (T1, Folio.51-52).

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

11. 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’.

12. The Tribunal has considered the circumstances in which the ground for cancellation arose.

13. As has been discussed previously in this decision record, the cancellation of the applicant’s Student visa arose due to the applicant’s conviction for a range of criminal offences including common assault and multiple driving offences over a period of time.  The delegate considered the offence to be serious. 

14. At the hearing the Tribunal discussed the circumstances of the charges from May and June 2016 which provided the grounds for the delegate to cancel his visa. 

15. The applicant in oral evidence stated he had married his sponsor in 2013 but had not finally come to Australia until 2016.  He said his wife had totally changed by the time he had arrived and she had started drinking.  He said that his wife stated to him that she wanted to separate from him.  He claimed that she was blackmailing him for money for her education fees which ended up being in the vicinity of $70,000 and was at least partially funded by his parents selling off their own land. 

16. The applicant said on the day of the assault conviction he had been working at a carwash and had returned home early to discover his wife there with her boyfriend.  The applicant said that his wife had started blackmailing him and made threats to report him to Immigration if he did not continue to pay her education fees.

17. The applicant claimed he felt depressed by all this and had gone out drinking.  He claimed that when he returned home she swore at him.  He said that his wife scratched him and he lost control, hitting his wife. 

18. The applicant claims that whilst he hit his wife, the statement she made to Police about his actions was wrong.  He claims to have only discovered this recently.  He states that he only had the use of an interpreter when making his own statement. 

19. In relation to the multiple driving offences, the applicant claims he only began drinking to excess after the assault charges.  The applicant conceded he had been drinking wine when charged with the first mid-range drink driving offence.  He claims he didn’t know his driving privileges had been withdrawn when he was convicted of this offence the first time.  In relation to the second drink-driving offence in June 2018 he claims that he was a passenger in his friend’s car when they drove to the home of the claimed boyfriend of the applicant’s wife.  The applicant said he was drunk.  The applicant said his friend had accidentally parked the car in the middle of the street so he decided to get in the driver’s seat and park the vehicle on the side of the road.  The applicant claims the Police spotted the car and discovered him parking the car. 

20. The applicant explained to the Tribunal his own state of mind during the time of these charges.  He said that he was in depression at the time due to the behaviour of his wife.  He pleaded guilty to the charges. He said he did not live with his wife after the charges were laid but he continued to receive requests for funds from her.  He claims that even after an Apprehended Violence Order was established, his wife continued to request money and he provided around $10,000 during this time. 

21. The applicant stated that he received a two year good behaviour bond as a result of his conviction for common assault.  The Tribunal notes from the decision record the applicant supplied that the applicant was fined $3,000 for his multiple driving offences in 2016 and in 2018, according to the Court documentation he provided (T1, Folio.51-52) he was convicted and directed to enter into a good behaviour bond for two years on 16 July 2018.  The order remains in effect today. 

22. The Tribunal has considered the applicant’s claims concerning his mental health and state of mind generally. 

23. The Tribunal has taken into account the psychological report from Mr Bill Singh (T1, Folio.40-43) dated 27 June 2016.  Mr Singh’s report stated that the applicant was married to his wife in India in September 2014 before she came to Australia later in 2014.  He stated that the applicant only came to Australia to be with her in February 2016.  In the months after that it is claimed the applicant discovered his wife was seeing another man which caused him depression, diminished his motivation and led to his heavy drinking.  His psychologist recommended continued psychological counselling; consult with a GP if his physical health deteriorated; seek over the counter assistance from the chemist to cope with anxiety, stress and depression and resume work within two weeks.

24. The Tribunal has taken into account the testimony of his social worker Ms Shrinder Kaur who spoke about her considerable experience with the applicant and his struggles with alcohol. 

25. At the hearing the applicant responded that he had not ever sought psychological or mental health treatment or assistance prior to his consultation with Mr Singh in June 2016 – that is after the charges of common assault and his driving charges.  He said that he had seen Mr Singh once or twice. 

26. The next treatment of any sort the applicant appears to have received is the counselling and he received at Oakdene House from July 2018 (T1, Folio.45), the Family and Relationship service at Anglicare from 15 June 2018 and Alcohol Anglicare and Alcohol Anonymous since May 2018.  The applicant claimed in oral evidence that he is no longer receiving treatment and has modified his lifestyle including not drinking alcohol. 

27. The Tribunal takes a particularly dim view of physical violence in all forms.  The Tribunal notes that the applicant has been convicted of a very serious charge in common assault and notes from his testimony to the Tribunal that he does not deny assaulting his wife.  The applicant has tried to argue there were somehow extenuating circumstances that led to the assault: demands for money from his wife and a boyfriend that she allegedly carried out a relationship with whilst in a married relationship with the applicant.  The Tribunal makes no comment on the veracity of the applicant’s claims.  It does however not consider these claims would justify the commitment of common assault in any way.  The Tribunal considers these claims concerning the applicant’s wife in no way justify the commitment of a physical act of violence against her.  The applicant has claimed his actions were in some way ‘self-defence’ against the actions of his wife but there is no evidence before the Tribunal supporting this claim.  The Tribunal is concerned by the viciousness of the applicant’s attack that included, according to the delegate’s decision the applicant included, the kicking of his wife in the head. 

28. The Tribunal similarly notes the applicant’s multiple driving offences.  The Tribunal accepts that law-abiding individuals can and do make mistakes on the road.  The Tribunal however notes with concern the multiple offences the applicant committed over a short period of time including mid-range drinking driving on two separate occasions.  The Tribunal considers mid-range drink driving to be a very serious offence that threatens the safety of members of the public.  The catastrophic consequences of drink driving – not only to the perpetrator but more importantly to innocent members of the public – are well known.  The Tribunal accepts that the applicant was upset as a result of problems in his relationship with his wife.  The Tribunal however notes that he had no history of alcohol abuse prior to this situation.  On the evidence before it, the Tribunal is of the view that the applicant showed no regard for the public in drinking alcohol to excess and driving not only once but twice.  He indeed had no right to be on the road but twice in ten days was caught by the constabulary driving when his privileges as a then internationally-licensed driver had already been withdrawn.  The Tribunal considers this illustrates a fundamental lack of respect for his fellow road-users and for the Australian public. 

29. The Tribunal does not consider there are any mitigating circumstances for the applicant’s behaviour in assaulting his wife and subsequently committing multiple serious driving offences.  The Tribunal has considered the circumstances in which the grounds for cancellation arose and weighs this in favour of cancelling the applicant’s visa.         

30. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  In the applicant’s situation, he was the dependent – as the husband – of the holder of a student visa who at the time was studying.  The applicant stated in his oral testimony that he and his former wife had applied for divorce in January 2019.  

31. The applicant claimed that his wife’s boyfriend at the time of the circumstances that led to his conviction now recognises that he was poorly treated.  He said that this individual contacted him in December 2018 and has assisted him with his divorce documents.  The applicant said that his wife has enrolled in many courses and her purpose is not study.

32. In his oral testimony the applicant said that a purpose of his travel to Australia was the fact that his parents had married him to send him to Australia.   He said this was because there were people that wanted to kill him.  He said that the Police in India could not protect him.  The Tribunal asked if he had lodged a Protection application if this was the case.  The applicant replied he had not lodged a Protection application as he had only recently learned about it in the last few days.  The Tribunal found the applicant’s oral claims vague, non-specific and to be frank concocted.  No evidence was presented in respect of his claim.   

33. The applicant’s purpose for his travel to and stay in Australia was as a dependent upon his then wife who was studying.  On the applicant’s testimony that relationship is over and the parties are in the process of divorcing.  He has claimed that her own reason for being in Australia on a Student visa is not to study.  The Tribunal considers the purpose for the applicant’s travel to and stay in Australia has concluded.  The Tribunal weights this consideration in favour of cancelling the applicant’s visa. 

34. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  There is no evidence before the Tribunal that the applicant has not – notwithstanding his criminal convictions – complied with his visa conditions.  The Tribunal weights this factor neither in favour nor against cancelling the applicant’s visa. 

35. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his visa be cancelled.

36. In relation to his family, the applicant stated he has no family members residing in Australia.  He said that his parents were worried about him because they did not consider it safe for him to return to India.  The Tribunal asked why this was the case.  The applicant gave a rambling response about an ‘incident’ that occurred involving the placement of a video on Facebook and YouTube.  He said that because of undefined people wished to kill him.  He said that this was the reason his parents had arranged a marriage with his former wife and they had sold their land to help facilitate and fund this. 

37. The applicant said his visa cancellation would cause particular hardship to his father who did not want to see him return to India.  He said his father was a very strict man and considered it not safe for him to return. 

38. The applicant stated that his parents would also try to send him to Canada rather than return to India.

39. The applicant said to the Tribunal that he has no children, no spouse and no partner.

40. In relation to hardship to himself, the applicant said he was scared to return to India as he was not sure what would happen to himself.  

41. The applicant submitted that a significant degree of hardship would be caused to both himself and his family should his visa be cancelled.

42. The Tribunal has given consideration to the evidence the applicant has submitted to the Tribunal about his completion of the Traffic Offenders Intervention Program (T1, Folio.47-49), his membership since May 2018 of Alcohol Anonymous (T1, Folio.46) and his counselling services with Oakdene House (T1, folio.45).  The Tribunal accepts that the applicant has made tangible attempts to improve his well-being, his outlook on life and be a responsible member of the community in recent months.  The Tribunal however also notes that the majority of these actions have occurred after his conviction for mid-range drink driving again in July 2018.

43. The Tribunal has taken into account the testimony of the applicant’s witness Ms Shrinder Kaur who is the applicant’s case worker.  The applicant also resides with Ms Kaur and her family.  Ms Kaur told the Tribunal that the applicant has had no alcohol since the charges relating to his 2018 mid-range drink driving conviction. 

44. Ms Kaur expressed concern that if the applicant returned to India he could commit suicide.  The Tribunal notes that there is no recent medical evidence before the Tribunal of any treatment for any serious mental health issues.  The applicant in his own testimony said he was not receiving treatment and stated prior to his conviction for assault he had no history of mental illness or mental health issues.  In the absence of more substantive information the Tribunal considers Ms Kaur’s comment is conjecture and gives it little weight. 

45. Ms Kaur said the applicant is only now just starting to sort his life out.  She claims he can’t remember some things and he doesn’t like to talk about aspects of his past because of trauma.  She claims he can be triggered by trauma and needs a safe and loving environment which her household is providing him.  Ms Kaur said the applicant has been told he has to seek help and commit to changing his life.  She argues he has done so in recent times and pointed out correspondence from the NSW Department of Justice dated 30 August 2018 that the Parramatta Community Corrections has terminated supervision of the applicant (T1, Folio.53).  The argument essentially is that the applicant has turned the corner and is making efforts to fix his life and make a meaningful contribution to the community. 

1. Given the applicant entered Australia as a dependent on the student visa of his wife, and given the relationship has now ended after he has been convicted of her assault, the Tribunal does not consider the applicant’s return to India on the basis of failing to meet the requirements of his visa will be surprising to his parents and his family.  The Tribunal accepts that the cancellation of his visa will nevertheless cause some distress to his family given the investment they have made in sending him to Australia as he has claimed.  The Tribunal notes the applicant’s claims concerning the fears his family allegedly has from his potential return to India, though in the absence of any corroborative evidence whatsoever not only gives the claim no weight but considers it to be false.    The Tribunal considers the hardship to the applicant’s family should his visa be cancelled is minimal.  The Tribunal weighs this factor in favour of cancelling the visa.   

2. In relation to hardship that he himself will face from the cancellation of his visa, the Tribunal notes that the applicant has received counselling and treatment for abuse of alcohol.  That treatment occurred after he was again convicted of mid-range drink driving.  The Tribunal has taken into account his claims of depression that was triggered by the breakdown of his relationship with his wife and his criminal conviction for assault.  The Tribunal notes however that there is limited evidence of any diagnosis and treatment of any mental health issues beyond Mr Singh’s report from 2016 and recent reports from counsellors confirming the applicant’s attendance.  If the applicant is suffering from mental health concerns or concerns in relation to alcohol, services addressing such problems are widely available in India.  The Tribunal furthermore notes that the applicant himself in his oral testimony stated that he is no longer receiving any treatment and has modified his behaviour by giving up alcohol. 

3. The Tribunal notes the applicant’s claims that he faces danger in returning to India but in the absence of any corroborative evidence gives the claim no weight. 

4. The Tribunal considers the hardship the applicant will face by returning to India to be limited.  The Tribunal accepts he was depressed by the breakdown of his relationship and turned to alcohol to cope with his situation.  The Tribunal notes that he is not currently receiving treatment for any mental health issues and his treatment for alcohol abuse in his own testimony is attending Alcohol Anonymous every week or two.  The Tribunal furthermore notes he has been convicted of assaulting his then wife as well as putting the public at risk with multiple mid-range drink driving convictions.  The Tribunal concedes the applicant does face some limited hardship by the cancellation of his visa.  The Tribunal does not however consider that this hardship weighs against cancelling the applicant’s visa.  

5. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The applicant at the hearing said he has had no dealings with the Department since the cancellation of his visa.  There is no evidence the applicant has been uncooperative with the Department in any of his previous dealings.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

6. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. There is no information before the Tribunal which indicates that any other person currently holds a visa because the applicant held his Student visa. The applicant agreed in oral evidence to the Tribunal that no one holds a visa because of his 573 student visa. There is no evidence or claim made of dependents. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa

7. The Tribunal has considered whether there are any mandatory legal consequences to a decision to cancel the applicant’s Student visa, such as detention and removal from Australia. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant may be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning any mandatory legal consequences from a decision to cancel his Student visa, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

8. The Tribunal has considered whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  The Tribunal notes the applicant’s claim in his oral testimony that he feared being killed if he returned to India.  The Tribunal notes the applicant presented no corroborative evidence to support such an assertion. He has not lodged a Protection visa application.   Based on the evidence provided by the applicant in this review, the Tribunal is not satisfied that the applicant will be harmed in India and that the applicant would be removed in breach of Australia’s non-refoulement obligations as a consequence of the cancellation of his visa. The Tribunal gives the claim no weight.  On the evidence before it the Tribunal weighs this factor concerning the breach of any international obligations as a result of the cancellation of the applicant’s visa neither in favour nor against cancelling the visa.   

9. The Tribunal is satisfied that the grounds for cancelling the applicant’s visa exist.  The Tribunal notes that the applicant’s convictions involve the utilisation of physical violence against his wife and multiple cases of mid-range drink driving which puts the motoring Australian public in grave danger.  The Tribunal has taken the applicant’s circumstances into account and has weighted up each of the considerations.  The Tribunal has determined on the basis of the information before it that the visa should be cancelled. 

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

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Justin Owen
    Senior Member