Siape (Migration)

[2024] AATA 1077

Siape (Migration) [2024] AATA 1077 (29 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Siape

REPRESENTATIVE:  Mr Felix Carao (MARN: 1069354)

CASE NUMBER:  2314707

HOME AFFAIRS REFERENCE(S):          BCC2023/4051909

MEMBER:David McCulloch

DATE:29 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 29 April 2024 at 7:42am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of several offences – applicant ceased enrolment – family members remaining in Australia – poor academic progress – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 September 2023 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 applicant is a citizen of Papua New Guinea, born on 4 April 2000. The visa that was granted on 9 November 2022 was for a stay period until 7 June 2024.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 7 August 2023. The applicant provided a response on 9 August 2023.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or 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.

5. The applicant appeared before the Tribunal on 19 April 2024 at 9.30am to give evidence and present arguments.

6. The applicant was represented in relation to the review. The representative attended the hearing.

7. 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

8. 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?

9. 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 reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, reg 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

10. The NOICC indicated the following court outcomes against the applicant in the Darwin Local Court on 27 August 2020:

    ·Drive a Motor Vehicle while Unlicensed – convicted with sentence of imprisonment for three months, suspended;

    ·Drive High Range Blood Alcohol Content – convicted with sentence aggregate with previous offence and licence disqualified for 12 months;

    ·Breach of Order for Release on Bond – charge proved with no further action;

    ·Drive Low Range Blood Alcohol Content - convicted with imprisonment for two months backdated and licence disqualified for 12 months;

    ·Drive a Motor Vehicle while Disqualified – convicted with sentence aggregate with first listed conviction.

11. The NOICC puts an additional criminal matter to the applicant – a charge proved but without proceeding to conviction in the Darwin Local Court dated 19 May 2020. The offence is being an Unlicensed Driver with Alcohol In Blood. The sentence is release on a good behaviour bond for a period of nine months with conditions. The licence was suspended for three months.

12. In the hearing the applicant acknowledged these convictions.

13. 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

14. 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’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (that is, consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations, provisions in the Act which prevent the person making a valid application without the intervention of the Minister, whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

15. The Tribunal asked the applicant in hearing about the details of the various driving offences. The applicant indicated that there were three occasions he was picked up while driving. On the first occasion, he had been to an event and had been drinking but did not consider he was over the limit. He was stopped and was eventually determined to be over the limit. The applicant indicated that it was after this offence that he lost his licence.

16. The applicant indicates that there are two further occasions when he drove unlicensed and over the legal alcohol limit.

17. In relation to the applicant’s study history, Provider Registration and International Student Management System (PRISMS) records indicate that the applicant studied in Australia from January 2016, completing an English course, and thereafter studied year 10 to 12 of high school, which PRISMS indicates that he finished.

18. In relation to study history, the NOICC also puts adverse information available from PRISMS concerning the applicant’s study in Australia. It indicates that under the previous Student visa granted on 2 May 2020, the applicant was registered to study a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management with Australian Careers College. Both enrolments were cancelled on 16 December 2020 due to non-payment of fees and the applicant’s last day of study was 20 July 2020. It is noted that the applicant explained that these enrolments were cancelled due to mental and physical health issues caused by COVID-19 lockdowns and restrictions and that he was not happy with the management of Australian Careers College. It is noted that the Department accepted this statement and granted the current Student visa.

19. The NOICC further notes that the current Student visa was granted to study a Certificate IV in Commercial Cookery, starting on 11 April 2022 and ending on 8 October 2023, and then a Diploma of Hospitality Management, starting on 9 October 2023 and ending on 7 April 2024. It is noted that PRISMS indicates that Sydney City College sent out a warning email, a written notice of intention to report on enrolment and followed up several times regarding the payment of fees but did not receive any responses. As a result, the College cancelled the enrolments in these two courses on 10 January 2023. It is indicated therefore that the applicant has not been enrolled in a full-time registered course since 10 January 2023 and therefore has not complied with condition 8202 of the visa. It is further noted that PRISMS indicates that the applicant did not commence either of these two courses.

20. The NOICC notes that the applicant has not undertaken any studies since 20 July 2020, a period of more than three years, and the applicant has remained in Australia for more than six months without being enrolled. It is considered that this non-enrolment period is substantial and that the applicant’s stay in Australia has no longer been for study in line with the purpose of the visa.

21. In the hearing, the applicant indicated that in relation to his first course enrolled in after high school, a Certificate IV in Commercial Cookery, commenced on 16 March 2020, he actually studied for three weeks. The applicant indicated he has not undertaken any actual study, in terms of attending classes, since. The applicant indicates that in Australia he has not completed any course or passed any unit in any course.

22. In the written response to the NOICC, the applicant expresses his deepest apologies for not complying with the terms and conditions of the visa. With regard to the criminal offences, the applicant apologises. He indicates that he has improved in his life. He indicates that he attended a rehabilitation program, which he completed in 2022.

23. The applicant also provides a Certificate of Marriage indicating the applicant’s marriage in Darwin on 10 October 2022 to Ms Tathran Newton.

24. A written submission was provided on behalf of the applicant to the Tribunal dated 12 April 2024. The submission indicates that the applicant regrets his mistakes leading to the criminal convictions. Since then, he has made a strong commitment to staying on the right track. He has no further offences since those incidents and a national coordinated criminal history check is provided establishing this.

25. It is indicated that the applicant took the EASA Back on Track Education program in 2022, which is designed to help individuals address underlying causes of their criminal behaviour. The applicant’s participation demonstrates commitment to personal growth and a proactive effort to address past mistakes.

26. On the day of the hearing a letter from EASA dated 18 April 24 was provided indicating that the applicant attended and completed the two-day Back on Track Education program in December 2022.

27. it is submitted that the applicant has a renewed commitment to his studies. On 8 April 2024 the applicant’s mother helped him with an email enquiry to Ferguson University to ask about their Commercial Cookery course offering. A copy of this email is attached. In the hearing, the applicant reiterated that he now is motivated to study a cookery course.

28. A character reference is also provided from the applicant’s brother which attests to his positive qualities, his recent positive behaviour and improvement made in his character since the offences.

29. It is submitted that the continued cancellation would affect the applicant’s future and cause significant hardship to his family. The applicant’s mother and sister are currently in Australia. Cancelling the applicant’s visa would force him to separate from his close family unit, causing emotional and financial strain on everyone involved. Cancellation would hinder the ability of the applicant to legally remain in Australia and pursue his future goals.

30. In relation to hardship, in the hearing the applicant indicated that his mother and two of his siblings are in Australia. His siblings are working but the applicant does not know what their visa status in Australia is. The applicant indicates that his mother is on a tourist visa and will be returning to PNG in about a month.

31. The Tribunal put to the applicant in the hearing adverse information pursuant to the provisions of s 359AA of the Act.

32. The Tribunal put the following information:

    ·the factual circumstances of the convictions namely, three occasions on which the applicant drove over the limit, and on two occasions he drove unlicensed;

    ·the applicant was not enrolled in a registered course for a period of eight months from 10 January 2023 until the visa was cancelled, which would in itself be a ground for cancelling the visa;

    ·after completing secondary school, from 2020, the applicant only actually studied any course for three weeks and did not complete any course or pass any unit in any course.

33. The Tribunal put to the applicant that the consequence of relying on this information would be to conclude that there were significantly adverse discretionary factors. It was indicated that there would need to be very significant discretionary factors in his favour that would lead the Tribunal to not exercise its discretion to cancel the visa. The Tribunal indicated that it was hard to consider, given his very poor study history, that the applicant now has a genuine desire to study.

34. The applicant elected to respond verbally. The Tribunal notes the prior written submissions, which also address the adverse information. In response in the hearing, the applicant indicated that he has not driven drunk since 2021. He referred to undertaking rehabilitation and that he has learned his lesson. He refers to his youth at the time of the offences.

35. The applicant referred to only having a brother in PNG to support him and that he had been in Australia since a young age, creating difficulties for return. The applicant acknowledged that he would have the support of his mother in PNG because she is returning from Australia shortly. The applicant indicated that his father has passed away.

36. Given the applicant’s extremely poor study history in Australia from 2020, the Tribunal has significant doubts as to the genuineness of the applicant’s motivation to now study a cookery course. Thus, the Tribunal considers that there is limited hardship to the applicant if the visa remains cancelled for reason of not being able to undertake studies in Australia.

37. The Tribunal takes into account the youth of the applicant and the fact he has no other criminal convictions beyond those indicated above. However, the cumulative impact of the three driving offences is significant and on the evidence, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that obviate him from responsibility for repeated not insignificant driving and alcohol offences.

38. Given that the applicant’s mother is soon to be returning to PNG, the Tribunal considers there is only limited hardship to the applicant not having family support in terms of two of his siblings remaining in Australia.

39. The Tribunal does accept some hardship to the applicant reintegrating in PNG given the fact that he has lived in Australia for approximately eight years from his late teenage years. The Tribunal considers that this is the most significant hardship to the applicant if the visa remains cancelled.

40. The Tribunal also accepts that the applicant would prefer to make a life for himself in Australia rather than in PNG.

41. On the Departmental file is a nondisclosure certificate issued under s 375A of the Act. It is issued on the basis that the relevant information would reveal a confidential source or disclose lawful methods for preventing, detecting and investigating breaches of law.

42. The Tribunal put to the applicant in the hearing that the relevant information is an allegation that the applicant has engaged in abusive behaviour towards his wife.

43. The Tribunal put to the applicant that he had the ability to challenge the validity of the nondisclosure certificate. However, the Tribunal indicated that given its inability to question the confidential source or the applicant’s wife it would not draw any adverse inference from this information. The applicant and the representative indicated that they did not intend to challenge the validity of the nondisclosure certificate.

44. The applicant in the hearing indicated that there is no domestic violence order against him in relation to his wife. He indicated that there is such an order in place protecting him from his wife.

45. As indicated, the Tribunal draws no adverse inference in any way as a result of the allegations the subject to the nondisclosure certificate or in relation to the circumstances of the relationship between the applicant and his wife.

46. However, the Tribunal considers that the matters adverse to the applicant as put to him in the hearing under s 359AA are overwhelmingly adverse. The Tribunal does not consider that there are any significant extenuating circumstances beyond the applicant’s control which obviate his responsibility for the multiple offences. While the Tribunal has noted the applicant’s explanations, claimed hardships and the positive character reference, they do not even begin to outweigh the matters adverse to him.

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

    DECISION

48. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member