Sharma (Migration)

[2022] AATA 2001

Sharma (Migration) [2022] AATA 2001 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramesh Sharma

REPRESENTATIVE:  Mr Gurvinderjeet Singh Parmar (MARN: 1808842)

CASE NUMBER:  2111456

HOME AFFAIRS REFERENCE(S):          BCC2021/1526433

MEMBER:Brendan Darcy

DATE:4 May 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 04 May 2022 at 12:36pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – non-compliance with COVID-19 Diagnosed Persons and Close Contacts Directions – attendee at a Tier 1 exposure site – negative Covid test – lacks a degree of due diligence and respect for the community’s health – consideration of discretion – genuine student – non-compliance with other visa conditions – no extenuating compelling circumstances – low or negligible risk to the community’s health – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 August 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 part (i) of section 116(1)(e) as the applicant’s presence in Australia is or may be, or would or might be , a risk to the health, safety or good order of the Australian community on the basis that the applicant breached the mandatory quarantine and self-isolation requirements placed under him by the State of Victoria during a pandemic. 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 29 April 2022 to give evidence and present arguments.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review; however, the appointed registered migration agent did not attend the scheduled 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)(e). 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, born in 1989, is a citizen of the Republic of India. A copy of the applicant’s Indian passport is attached to the Tribunal’s file. 

9. The applicant arrived in Australia on 9 September 2019 holding a Class FA Subclass 600 visitor visa.

10. The applicant applied for a student visa on 1 December 2019 for the purpose of studying a Certificate IV in Technology Networking. A Class TU Subclass 500 student visa was granted to him on 9 April 2020.

11. In accordance with s.119, a Notice of Intention to Consider Cancellation (NOICC) was issued to the applicant on 3 August 2021. The particulars for the grounds for cancellation under section 116(1)(e)(i) were outlined in the NOICC as follows:

    On 11/03/2020, the World Health Organization (WHO) International Health Regulations Emergency Committee declared the outbreak of the Novel Coronavirus (COVID-19) as a global pandemic.

    COVID-19 presents a threat to the Australian community, trade and prosperity.

    The Australian Government, in conjunction with states and territories, have been implementing a range of measures to reduce the spread and impact of COVID-19 within the community. This includes social distancing, mandatory quarantine and self-isolation directives.

    There is evidence before me received from Victoria Police (VicPol) on 20/07/2021 indicating that you, SHARMA, Ramesh (DOB: 15/05/1989) the visa holder of a TU-500 have not complied with the COVID-19 Diagnosed Persons and Close Contacts Directions in accordance with the State of Emergency direction issued by the Victorian Chief Officer (203(1)) of the Public Health and Wellbeing Act 2008 (Vic) by engaging in activity contrary to these directions.

    You were identified by the Victorian Department of Health and Human Services (DHHS) as an attendee at a Tier 1 exposure site (Young and Jacksons). Since your identification, DHHS authorised officers have not been able to make contact with you for compliance checking.

    DHHS attended your home on two (2) occasions where it was identified that you were not complying with your mandatory fourteen (14) day quarantine requirement. It was also confirmed by a family member on one occasion that you were not present and your whereabouts unknown.

    You have also failed to respond to any messages and phone calls left by DHHS.

    On the evening of 19/07/2021 VicPol made contact with you via telecommunications where you accepted their ‘geo location request’. Upon this request it was confirmed that your current location at that time was outside the local Woolworths in Sunbury, and therefore not at your place of residence in Rockbank. When questioned by VicPol on your location and why you were not adhering to your quarantine requirements, you advised “I was talking a walk”.

    Based on the evidence provided by VicPol, it appears that you have not complied with the State’s mandatory quarantine and self-isolation requirements placed upon you, therefore placing a significant risk to the health of the Australian community.

12. Via the applicant’s representative, the applicant submitted a response to the NOICC on 10 August 2021. The submitted legal submission argued:

    “We submit that Mr Sharma currently does not pose any risk to the health of the Australian community. Given that a ground for cancellation must exist at the time of decision, we therefore submit that there is no ground to cancel Mr. Sharma’s visa. We submit that Mr. Sharma has completed his isolation period and has tested negative for Covid-19. He is now fully aware of the quarantine requirements of Tier 1 close contacts, is extremely remorseful for his actions and terrified of his visa being cancelled. We therefore submit that in the unlikely event that he is required to self-isolate in future, there is an extremely low risk that he will breach quarantine requirements. As such we submit that Mr. Sharma does not pose a risk to the health of the Australian community at this time and therefore no ground exists for cancellation.”

13. On 23 August 2021, the applicant was notified of the decision to cancel the visa under s.1126(1)(e)(i).

14. The applicant applied to have the cancellation decision reviewed by the Tribunal on 30 August 2021 with the decision record attached.

    Does the ground for cancellation exist?

    s 116(1)(e) - risk to Australian community or individual

15. A visa may be cancelled under section 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

16. At the hearing, the applicant admitted to breaching the restrictions on him to self-isolate and quarantine as directed by Victoria’s Department of Health and Human Services in accordance with the State’s emergency directions. The applicant did so with various explanations about his non-compliant behaviour.

17. The Tribunal notes the applicant has claimed that he is remorseful for the non-compliance and had otherwise complied with a 14-day quarantine requirement after his encounter with the Victoria Police.

18. The Tribunal has formed the view that the applicant was not compliant with these emergency requirements. The Tribunal is of the view that the non-compliance was partially motivated because he had received a negative Covid test and therefore he thought he was not a risk to the general population. The applicant failed to understand that a positive test for the virus and symptoms may arise later after a negative test, had the applicant been in contact with it while working at a Tier 1 exposure site. This was the basis for the then requirement to quarantine for 14-days after a test. As the Tribunal’s findings under the heading ‘circumstances in which ground of cancellation arose’ outline, the applicant had no extenuating or compelling circumstances for his non-compliance.

19. The applicant has implored the Tribunal to consider that the grounds for cancellation does not exist at the time of decision as the applicant is remorseful and better understands the seriousness of the emergency requirements in relation to the coronavirus pandemic, and that therefore he is not, or may not be, or would not or would not a risk to the health of the Australian community.

20. It has been said that the notions of ‘health’ and ‘safety’ need no elaboration.[1] That is, it appears they take on their ordinary meaning. The presence of a person in Australia may pose a health risk even if it poses a negligible individual risk of transmitting an infectious disease to other persons, for example, if it may lead to a reduction in the uptake of vaccines.[2]

    [1] Djokovic v MICMSMA [2022] FCAFC 3 at [40].

    [2] Djokovic v MICMSMA [2022] FCAFC 3 at [53], [56], [85].

21. For visas held on or after 11 December 2014, where the notice under s.119 was sent on or after that date, section 116(1)(e) provides a ground for cancellation if the presence of the visa holder in Australia ‘is or may be, or would or might be, a risk’ to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.[3] This version of the ground clarifies that the ground applies where the risk of harm is to an individual, or segment of the community, as well as the broader ‘Australian public’ may or might be a risk to health, safety or good order, as well as where there is demonstrated to be an actual risk of harm.[4]  The word ‘may’ and the word ‘might’ do not contain different levels of possibility; they relate to different contexts: ‘may’ if the visa holder is presently in Australia; ‘might’ if they were come to Australia in the future.[5]

    [3] Amended by No 129, 2014. Applies to visas held on or after 11 December 2014.

    [4] Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), p.24 at [13]. This was confirmed in Gong v MIBP [2016] FCCA 561 at [40].

    [5] Djokovic v MICMSMA [2022] FCAFC 3 at [37].

22. At the time of writing this decision, the Victorian community is subject to a state of disaster declaration which commenced on 22 April and is set to end on 12 July 2022.[6]  It is the official position of the State that the pandemic’s risk to the health of the community is actual and ongoing.

    [6] The Pandemic (Public Safety) Order 2022 commences at 11:59pm on 22 April 2022 and ends at 11:59pm on 12 July 2022, >

    Despite the applicant’s overall good character, the applicant’s numerous acts of non-compliance in July 2021 and his weak explanations for them has demonstrated to the Tribunal the applicant lacks a degree of due diligence and respect for the community’s health which has invited the Tribunal to assess that the applicant’s presence in Australia is, may be or might or would be a risk to the health of the Australian community, albeit a very low or negligible risk.  This is finding is a reasonable conjecture within the parameters set by the applicant’s past behaviour and a reasonable knowledge of human experience.

23. In making this finding, the Tribunal is accordingly satisfied the applicant’s presence in Australia is, or may be, or might or would be a risk to the health, safety and good order of the Australian community for the purposes of part (i) of section 116(1)(e).

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

    Consideration of discretion

25. 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 former visa holder’s travel and stay in Australia, whether the former visa holder has a compelling need to travel to or remain in Australia

26. The original purpose of the applicant travelling to Australia was to visit his brother and his family. He validly applied for a student visa to study a Certificate in Technology Networking. However, having been granted the student visa in April 2020, the applicant enrolled in a Certificate III in Painting and Decorating in July 2022. He remained enrolled in that certificate III coursework until the cancellation of the visa in August 2021.  

27. The applicant explained that he acquired a bachelor’s degree in science and information technology from an Indian university in Punjab. Indeed, he explained he had been a manager in an information technology business while in India. The applicant further explained that he wanted to pursue painting and decorating to develop his employability in painting and decorating as there were limited jobs in information technology in his part of India. To this extent, the applicant does not have any compelling need to remain in Australia given he had a bachelor’s degree in a very large industry in India. The Tribunal accepts he wishes to complete this coursework, but it places only a small amount of weight on the appellant’s desire to complete such a qualification in painting and decorating as compelling.

28. The Tribunal, nonetheless, acknowledges there is no evidence to suggest the applicant has not been a conscientious full-time student. Accordingly, the Tribunal accepts the applicant’s intention to remain in Australia is full-time and places considerable weight on it in favour of this visa being restored.

    the extent of compliance with visa conditions

29. There is evidence the applicant breached condition 8533 as he did not update the Department about the change of address. During the scheduled hearing, the applicant acknowledged he had breached the condition and explained that the change of address was due to his brother and his sister-in-law with whom he was residing. The breach indicated a lack of due diligence on behalf of the applicant.

30. However, in the context of the applicant had not breached the other conditions imposed on either his visitor or student visas, the Tribunal accordingly places on some weight on the breach of condition 8533 in favour of the cancellation of the visa.

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

31. The applicant stated in his response that his parents invested money into him studying in Australia in the hope that he would be able to obtain qualifications which would enable him to find well paid employment and build a better life for himself and his family in India.  The Tribunal accepts there will be some financial hardship on the applicant and his family given the amount spent on tuition fees to date. 

32. The applicant provided evidence in his Notice of Intention to Consider Cancellation of the current coronavirus crisis in India to which he stated he holds great concern about the risk to his health and his parent’s health if he was to return to India and contract the COVID-19 virus in transit or whilst looking for work. The applicant goes on to state that if he or his family were to contract the virus, they would require hospitalisation to which he stated he has concerns that they would be unable to access adequate medical treatment due to the current strain on the healthcare system.

33. However, the applicant said during the hearing, that he had been vaccinated for the coronavirus three times since such preventative treatments were made available and that he did not have any health reasons for not returning to India. The Tribunal places no weight on any hardships arising from the applicant’s health or the prevalence of coronavirus in India either in favour or against the visa remaining cancelled.

34. The applicant claimed at the scheduled hearing that the cancellation of his visa would be hard on his parents as his family is religious, sensitive to criticisms of their children by neighbours. He further claimed that the cancellation of his visa will negatively impact on his ability to marry as the cancellation will carry with it a stigma. The Tribunal accepts that should the applicant return without his visa being restored, it would be a source of embarrassment to his immediate family and that it will create a stigma, as claimed. However, it does not accept the combination of the embarrassment and stigma will lead to any long-lasting problems with the applicant - a graduate of a bachelor’s degree in India’s burgeoning information technology sector, in maintaining the affection of his family or his capacity to find a spouse, including through an arranged marriage. 

35. The Tribunal accepts the applicant, by returning to India, will be separated from his brother, sister-in-law, nephew and niece with whom he has grown close. However, he will be returning to his parents and he will be able to resume further studies in India should he chose to or re-engage the labour market as a person with an information technology degree and experience.  

36. The Tribunal notes no medical certificates or psychological assessments of the applicant submitted to either the Department or the Tribunal and that the applicant did not claim to have any physical or mental health conditions.

37. Overall, the Tribunal accesses the overall degree of financial, emotional and psychological hardship to be encountered by the applicant should this visa remain cancelled to be insignificant in its adverse impact on the applicant. Accordingly, the Tribunal places a small amount of weight on any hardships to be faced by the applicant should this visa remain cancelled. 

    circumstances in which ground of cancellation arose

38. The applicant, following attending a tier 1 exposure site in July 2021, was required to self-isolate for fourteen days regardless of having a negative Covid test. The requirements were enforceable under the COVID-19 Diagnosed Persons and Close Contacts Directions in accordance with the State of Emergency direction issued by the Victorian Chief Health Officer (203 (1) of the Public Health and Wellbeing Act 2008 (Vic)).

39. The evidence provided by Victoria Police is that the applicant did not respond to any calls or messages left by DHHS who were attempting to contact him to provide accurate instructions on what was required. By the applicant’s own admission in the hearing, the applicant did not make contact with DHHS to clarify his isolation requirements.  There is evidence the applicant left his residence in which he was supposed to be confined to travel to a chemist. He also found outside a shopping centre when he accepted a ‘georequest’ from the Victoria Police.

40. The explanations provided by the applicant for have been varied and unpersuasive:

    ·The applicant was unsure of the requirements on him after receiving a negative result; however he never called a doctor on one of the hotlines that were widely advertised to seek advice and/or assistance.

    ·The applicant left for a chemist because of a headache – which is a symptom of a person who may be incubating the coronavirus. The applicant was well-placed to ask a third person in the household to assist him.

    ·The applicant did not respond to calls and messages from the Department of Health & Human Services, who could have provided him with clarification of the requirements.

    ·The applicant ignored calls as they were ‘no caller id’; however, in the context of the other attempts to contact the applicant it was open to him to contact the authorities.

    ·The applicant’s sister-in-law told him the DHHS were making enquiries of his whereabouts, yet he did not make any attempts to contact them.

    ·The applicant was not home when the Victoria Police visited his residence. He did not tell them later about his whereabouts.

    ·When the Victoria Police located the applicant 21 kilometres from his residence, the applicant has provided a weak explanation he drove his car because he had received bad news about his mother’s health – as if his mother’s health in India entitled him to risk the health of others in the Victorian community

1. As discussed in the hearing, the applicant emphasised that he had undertook the test for the coronavirus and waited at his home until he received a negative test and provided evidence of this. He claimed he was confused about the requirements and he made mistakes. The Tribunal takes this as the applicant conceding that he acted in a manner that was wilfully and deliberately in breach of the health emergency requirements and that he deliberately avoid the authorities. The Tribunal places no weight on any of the reasons he did not self-isolate or engage the authorities as credible or persuasive. Indeed, the applicant demonstrated tot the Tribunal a lack of due diligence and respect for the health of the community in his behaviour at this crucial time during the pandemic.

2. The Tribunal accordingly finds there were no extenuating compelling circumstances that were beyond his control to explain the applicant’s breaches of emergency regulations in the midst of a pandemic. It places significant weight on the grounds for cancellation as the applicant had acted in a manner in which his presence had been a risk to the health of the Australian community.

   past and present behaviour of the visa holder towards the department

3. There is no evidence the applicant has behaved uncooperatively with the Department or the Tribunal, either in the past or presently. The Tribunal places a little weight on this consideration in favour of the visa not remaining cancelled.

   whether there would be consequential cancellations under s 140

4. The applicant has claimed consistently that he has never married or had any dependents. Accordingly, the Tribunal places no weight on this consideration either in favour of or adversely against the visa remaining cancelled.

   whether there are mandatory legal consequences

5. If the visa remains cancelled, the applicant may or might become an unlawful non-citizen. In such circumstances, his visa options would be subjected to s.48 provisions which would considerably limit those options. He risks being further detained and forcibly removed from Australia, if he does not leave voluntarily. It is open to him to make arrangement to apply for a bridging visa to enable him to make arrangements for departure, but there is no guarantee he will be granted the visa or successful on merits review.  The provisions of PIC 4013 would also prevent further offshore visas being granted for a period of up to three years from the date of cancellation.

6. The Tribunal places some weight on these mandatory legal consequences against the visa remaining cancelled.

   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

7. The applicant is a citizen of India. He does not have any dependants. In his response to the NOICC, the applicant did not advance holding any fears in returning to India.

8. Nonetheless, the applicant did advance during the hearing that he feared the emotional harm and stigmatisation arising from the cancellation of this visa. While it is accepted this amount to some harm, this kind of insubstantial and petty suffering for the reasons claimed do not amount grounds for refugee status or triggering any other international obligations.

9. The Tribunal does not consider cancelling the visa will potentially lead to the applicant being removed in breach of Australia’s non-refoulement obligations under the Refugees Convention, or in breach of Australia obligations under the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT). In the context where the applicant remains eligible for a valid protection visa application, the Tribunal places a negligible amount of weight in favour.

   if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

10. This consideration is not relevant as the applicant’s cancelled visa had been a temporary student visa.

    any other relevant matters

    Seriousness of the breach and the applicant’s character

11. As explained during the hearing, breaches of the restrictions and quarantining regulations designed to control the coronavirus during a declared public health emergency were rules that were taken very seriously by the authorities and the general population. Even when members of the public dislike them, most of the population complied and rightly felt angry and frustrated towards those who risked the virus’ spread through non-compliance of widely advertised and known regulations and laws. The Tribunal does not accept the applicant unwittingly ignored the messages of Victoria’s health authorities.  He did not act with a degree of due diligence commensurate within community standards, let alone within the lawful emergency requirements placed on him. The Tribunal places notable weight on these consideration in favour of the visa remaining cancelled.

12. On the other hand, the applicant acknowledged the seriousness of the breach during the hearing, and it is accepted the applicant was and remains remorseful. The Tribunal notes the applicant adhered to a further fourteen-days quarantine after he was approached by the Victoria Police. He was not fined or further penalised. In the context of the applicant’s negative test results, the Tribunal accepts the applicant did not willingly or knowingly become a vector of the disease for which the emergency powers were put in place to control.

13. The applicant has further contended that he is a person of good character who has not broken any of Australia’s laws or breached any road laws. He also donates blood regularly and participates in his local Hindu temples and its charitable works.  With no evidence to the contrary, the Tribunal accepts these claims as credible.

14. While the applicant’s presence in Australia represents a risk to the community’s health, it is the Tribunal’s assessment that the risk is low or negligible. This assessment is reached on the basis of the lack of evidence of any further breaches, the applicants otherwise good character and deterrent effect the cancellation of this visa has had one the applicant’s future behaviour. In this regard, the applicant’s presence in Australia represents a risk that is remote and is not real or likely. The Tribunal accordingly places significant weight in favour of the applicant’s visa being reinstated.

    Conclusion

15. In exercising its discretion to cancel the visa, the Tribunal placed notable weight of the breaches of Victoria’s quarantining regulations which the applicant breached in July 2021.

16. Although the grounds for cancellation were made out in this matter, the Tribunal has assessed that the applicant’s presence in Australia represents a risk to the community’s health that is a low or negligible. It is mindful that the threshold under s.116(1)(e) is a low one. There is insufficient evidence pointing to the applicant not being a person of otherwise good character or that his presence represents a real or likely risk to the community’s health. He has been a conscientious student to date. In this instance, it has placed considerable weight on these considerations over the grounds for cancellation.

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

    DECISION

18. 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