Sharma (Migration)

[2023] AATA 4108

Sharma (Migration) [2023] AATA 4108 (30 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amit Sharma

CASE NUMBER:  2213409

HOME AFFAIRS REFERENCE(S):          BCC2022/3049380

MEMBER:Kira Raif

DATE:30 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 30 November 2023 at 8:39am

CATCHWORDS
MIGRATION – Bridging C (Class WC) visa – Subclass 030 (Bridging C) visa – criminal convictions – driving with high-range PCA, contravention of AVO and assault – fines, corrections orders and rehabilitation programs – discretion to cancel visa – application for partner visa made out of time with no jurisdiction to review – application for judicial review in progress – visa granted not in association with partner visa application, but with application for judicial review – length of residence, partner and two children – circumstances of offences – mandatory legal consequences – applicant will be able to remain in Australia until judicial review finalised in any case – possibility of lengthy detention – best interests of children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 31 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa (BVC) under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of India, born in December 1987. The primary decision record indicates that he was granted the BVC in September 2020 in association with the application for a Partner visa. In August 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling the applicant’s visa under s. 116 of the Act. The applicant provided his response to the NOCC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 29 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. 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. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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). Regulation 2.43(1)(oa) provides the following

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

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   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 was granted the BVC on 7 September 2020 in association with his application for a Partner visa. The Department received advice that the applicant had been convicted of the following offences:

04/04/13	Drive with high range PCA – 1st offence	$1000 fine and disqualification from driving for 12 months
09/12/21	·     Contravene prohibition / restriction in AVO (domestic) ·     Common assault (DV)	Aggregate Intensive correction order 9 months (conditional)
13/05/22	·     Assault occasioning actual bodily harm (DV) ·     Common assault (DV)	·     Community corrections order – 2 years ·     Fine $750

1. In his submission to the delegate the applicant concedes that the ground for cancellation exists.

2. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary (Bridging C) visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

   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 states that the applicant entered Australia in February 2008 as a holder of a Student visa and he married his partner in February 2010. He was included as a dependent in his partner’s Student visa application. That visa was granted in May 2010 and the couple separated in 2016. The delegate notes that in September 2016 the applicant made an application for a Student visa, which was refused and affirmed by the AAT. In April 2018 the applicant made an application for a Partner visa on the basis of another relationship and the primary decision record indicates that he had been granted a Bridging C visa on the basis of that application.

5. In oral evidence the applicant told the Tribunal that his Partner application was refused and he made the application to the AAT but, due to his representative not submitting the documents on time, his application was deemed to be out of time. The Tribunal’s records confirm that in April 2020 the Tribunal (differently constituted) determined that the application for review was made out of time and that the Tribunal lacked jurisdiction to conduct the review. The applicant confirmed in oral evidence that he had made an application for judicial review in relation to that determination.

6. As the bridging visa in question was granted in September 2020, it could not have been granted in association with the Partner visa application (as the primary decision record indicates) but in association with judicial review with respect to the Tribunal’s decision.

7. The Tribunal finds that the purpose of the applicant’s initial travel to Australia was to study and that purpose changed when the applicant made the application for the Partner visa. The purpose of the grant of the BVC is to enable the applicant to remain in Australia lawfully while his application for judicial review was before the court. The Tribunal accepts that the applicant is fulfilling the purpose of his stay in Australia.

8. The applicant refers to the presence of his partner and two children in Australia and he told the Tribunal that he needs to be here for his children. The Tribunal accepts that the applicant has a compelling need to remain in Australia.

   The extent of compliance with visa conditions

9. There is no evidence of any non-compliance with visa conditions.

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

10. In his response to the NOICC the applicant states that he has been living in Australia since January 2009 and has always been a law abiding resident of Australia. The applicant states that the charges arose due to his unintentional behaviour as he was under influence of alcohol. He pleaded guilty and ‘took punishment’.

11. The applicant refers to the presence of his two children in Australia. He states that his family is everything and it will be a big loss to his family if he is not around them. The applicant states that he provides for his family and their well-being is important to him. In oral evidence the applicant stated that he does not want his children to grow up without a father and he wants to be there for the children.

12. The applicant refers to the length of time he has spent in Australia and states that he cannot return to his home country. The applicant states that he would have to think about all his possessions before leaving the country. The applicant also refers to financial hardship, stating that he has been working and supporting his family. (However, the applicant also concedes that he has not held a visa since the BVC was cancelled and has no permission to work.)

13. The Tribunal accepts that significant hardship would be caused to the applicant and his family if he was required to leave Australia. As the applicant has an application for judicial review that is still being processed, the Tribunal finds that the applicant will not be required to leave Australia as a result of his Bridging visa being cancelled. However, if the applicant’s visa is cancelled and he does not hold another visa, he may be an unlawful non-citizen and be subject to detention, which is likely to cause hardship to him and his family.

    Circumstances in which ground of cancellation arose

14. The ground for cancellation arises because the applicant was a holder of a temporary visa and has been convicted of offences.

15. In his response to the NOICC the applicant states that he committed offences due to the influence of alcohol. The applicant states that he has taken steps to rehabilitate himself, including enrolment in various programs. The applicant told the Tribunal that he made a mistake when committing the crimes. He referred to the multiple counselling sessions he had completed, stating that he did everything he could to be a better person.

16. In relation to his conduct leading to convictions, the applicant told the Tribunal that on the first occasion he had an argument with his father in law and a physical altercation and the police was called. On the second occasion, he had an argument with his partner about a dog and when his partner made a complaint over the argument, he was charged with breaching the AVO.

    Past and present behaviour of the visa holder towards the department

17. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

18. As the visa in question is a BVC which has no secondary criteria, there would be no consequential cancellations under s. 140.

    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

19. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. As noted above, the applicant has an outstanding application for judicial review and that process is independent and would likely permit the applicant to remain in Australia until the court determines the matter. Nevertheless the Tribunal acknowledges that if the applicant is not granted another visa, he may be detained as an unlawful non-citizen. The cancellation of the visa will also result in the application of s. 48, limiting the applicant’s options of applying for another visa onshore (the Tribunal is mindful that s. 48 already applies to the applicant due to the refusal of his partner visa application), and the application of an exclusion period in relation to offshore applications.

    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

20. There is no evidence to indicate, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case.

21. The applicant states that he has two Australian citizen children and needs to be present in Australia to support his children. The Tribunal is prepared to accept that it is in the best interests of the applicant’s children to maintain their relationship with the applicant and for the applicant to remain in Australia with them. However, the Tribunal is mindful that the Bridging C visa is not the most appropriate vehicle to achieve that. The purpose of the bridging visa is merely to allow the applicant to remain in Australia lawfully while his application for the judicial review is being processed. It is the Partner visa, rather than the BVC, that would enable the applicant to remain in Australia with his children. His application for the Partner visa has been determined by the delegate and the Tribunal and the applicant is unlikely to be required to leave Australia while his application for judicial review remains ongoing. Thus, the Tribunal finds that irrespective of whether the applicant is a holder of the BVC, he will be able to remain in Australia during the processing of his judicial review application and he will be able to maintain his parental responsibilities in relation to the children.

22. As noted above, if the applicant’s BVC remains cancelled and if the applicant is not granted another visa, he may be detained as an unlawful non-citizen. The Tribunal does not consider that it would be in the best interest of the applicant’s children if the applicant were detained for potentially a lengthy period.

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

23. The visa in question is not a permanent visa.

    Any other relevant matters

24. The applicant provided to the Tribunal evidence of having engaged in non-residential program at Odyssey House and the Tribunal accepts that the applicant had engaged in rehabilitation programs. The Tribunal also received several character references with respect to the applicant and the Tribunal accepts that those who prepared the references believe the applicant to be of good character.

25. In oral evidence the applicant spoke about his contribution to the community and the support he provides to others. the applicant refers to the counselling he has received, and states that  he has worked on himself to make himself a better person and for the benefit of his children. The applicant refers to the various character references. The applicant’s partner told the Tribunal that they have known each other since 2012 and she believes him to be a caring and considerate person who is giving and sensitive.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that the applicant held a temporary visa and had committed offences so there are grounds for cancelling his visa.

27. The Tribunal accepts that the applicant is fulfilling the purpose of his stay in Australia as he has an ongoing application for judicial review and remains in Australia with his partner and children. The Tribunal accepts that the applicant has a compelling need to remain in Australia due to the presence of his family here.

28. The Tribunal accepts that hardship would be caused to the applicant and his family if he was required to leave Australia but the Tribunal has formed the view that the applicant is unlikely to have to leave the country while his application for judicial review is outstanding.

29. The Tribunal has formed the view that it is in the best interest of the applicant’s two Australian citizen children that the applicant remains with them in Australia and in the community and the Tribunal gives this consideration significant weight.

30. The Tribunal acknowledges the circumstances in which the ground for cancellation occurred and considers that the applicant has committed serious offences. The Tribunal acknowledges that the applicant has engaged in rehabilitation programs.

31. Having considered all the circumstances of this case, the Tribunal has decided to give the greatest weight to the best interests of the applicant’s children and the hardship that would be caused if the applicant’s visa is cancelled, that may lead to his detention.

32. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Kira Raif
    Senior Member