Singh (Migration)

[2022] AATA 3135

Singh (Migration) [2022] AATA 3135 (29 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navreet Singh

REPRESENTATIVE:  Mr Suraj Khatri, Zen Migration and Education

CASE NUMBER:  2118019

HOME AFFAIRS REFERENCE(S):          BCC2021/1219859

MEMBER:Michael Ison

DATE:29 July 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 020 (Bridging B) visa.

Statement made on 29 July 2022 at 3:41pm

CATCHWORDS

MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) visa – risk to the health and safety of the Australian community – applicant charged with multiple criminal offences – applicant’s criminal charges reduced – impact of the COVID-19 pandemic and lockdowns – judgment of lower level of offending – applicant remanded in custody prior to bail – family and community support – emotional hardship in immigration detention – decision under review set aside     

LEGISLATION

Bail Act 1977 (Vic)
Migration Act 1958, ss 48, 116, 140, 198, 359, 501
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; Schedule 8

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 26 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr Navreet Singh, who is a 24-year-old Indian national. Mr Singh is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.

3. The applicant first arrived in Australia on 17 November 2015 as a dependent of his mother, Ms Sukhdeep Kaur, who held a Temporary Work (Skilled) (Class UF) (Subclass 457) visa that was valid to 21 October 2019.

4. On 1 May 2018 the applicant (and other family members) was included in a Regional Sponsored Migration Scheme (Class RN) (Subclass 187) visa application as a member of the family unit of his mother Ms Kaur and on 11 September 2019 those visa applications were refused by a delegate of the Minister.

5. On 24 September 2019 the applicant and his family lodged applications for review of the decision to refuse their Subclass 187 visa applications with the Tribunal (Tribunal case no. 1926875). At the time of this decision, those review applications have not been decided by the Tribunal.

6. On 21 August 2018 the applicant was granted a Bridging A (Subclass 010) visa which was associated with his pending Subclass 187 visa application. The applicant’s Bridging A visa ceased on 11 October 2019 when he was granted a Bridging B (Subclass 020) visa to enable the applicant to travel overseas.

7. The applicant was charged with criminal offences on 23 April 2021, 25 May 2021 and 28 May 2021 leading to the applicant being remanded in custody on 29 May 2021.

8. On 26 November 2021 the applicant’s Bridging B visa was cancelled under s 116(1)(e)(i) of the Act. It is the cancellation of the applicant’s Bridging B visa that is the subject of this review.

9. On 8 December 2021 the applicant was granted a Bridging E (Subclass 050) visa while he was remanded in custody, which was stated to be valid to 8 December 2022.

10. On 29 March 2022 the applicant was granted bail by the County Court of Victoria, but for reasons the applicant is not aware his Bridging E visa had ceased or was cancelled and the applicant was immediately detained upon his release from prison and held in the Melbourne Immigration Transit Accommodation (MITA), an immigration detention centre. The applicant remains in MITA at the time of this decision.

11. On 29 March 2022 the applicant applied for a Bridging E visa which was refused by a delegate of the Minister on 5 April 2022. The Applicant applied to the Tribunal to review the decision to refuse him a Bridging E visa (Tribunal case no. 2205178). On 22 April 2022 the Tribunal, differently constituted, affirmed the decision of the delegate to refuse the applicant’s application for a Bridging E visa.

12. On 9 June 2022 the applicant made a fresh application for a Bridging E visa.

13. The applicant withdrew his application for a Bridging E visa on 4 July 2022 and at the time of this decision does not hold a visa. 

    The primary decision

14. The applicant provided the Tribunal with a copy of the primary decision.

15. The delegate cancelled the visa under s 116(1)(e)(i) of the Act which provides:

    Section 116 Power to cancel

    (1)       Subject to subsections (2) and (3)[1], the Minister may cancel a visa if he or she is satisfied that:

    …

    (e)      the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i) the health, safety or good order of the Australian community or a segment of the Australian community; or

    (ii)       the health or safety of an individual or individuals… . (emphasis in original)

    [1] These subsections are not relevant for present purposes.

16. The delegate found that at the time of the delegate’s decision the applicant had been charged with 26 criminal offences arising from several separate incidents of alleged criminal offending including drug related charges, charges of dishonesty and deception and charges of personal violence. This caused the delegate to form the view that the applicant is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The delegate when considering the discretionary considerations found that the discretionary considerations that weighed in support of the cancellation of the applicant’s visa outweighed the discretionary considerations that weighed against the cancellation of his visa and therefore cancelled the applicant’s Bridging B visa.

17. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Certificate issued by the delegate under section 375A of the Act

18. On 6 June 2022 the Tribunal wrote to the applicant via his representative to inform the applicant that the Department file included a certificate issued under s 375A of the Act dated 7 December 2021. The Tribunal indicated in its letter to the applicant that it had formed a preliminary view that the certificate had been properly issued and bound the Tribunal. The Tribunal provided a copy of the certificate and summarised the material particulars of the information in the documents the certificate applied to. The Tribunal invited the applicant to comment on the certificate including, but not limited to, its validity.

19. The applicant, through his representative, responded to the Tribunal’s invitation by electronic mail dated 22 June 2022 and expressed “no objection” to the documents covered by the certificate being withheld and did not provide any other comment on the certificate.

    Tribunal hearing 23 June 2022

20. The applicant appeared before the Tribunal on 23 June 2022 to give evidence and present arguments, in person. The applicant told the Tribunal his parents and sister could give evidence by telephone if required by the Tribunal.

21. The applicant was represented in relation to the review by the applicant’s migration agent, Mr Suraj Khatri of Zen Migration and Education. Mr Khatri is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing.

22. At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

23. The applicant in his written statement dated 9 June 2022 stated that his time in immigration detention has adversely affected his memory. The Tribunal discussed this with the applicant and made appropriate allowances during the hearing when the applicant’s difficulty with some short-term recall affected his evidence.

    Pre-hearing submissions

24. On 1 December 2021 the Tribunal received a copy of a page of the applicant’s current passport, valid from 20 December 2014 to 19 December 2024, including his photo and personal details.

25. On 31 March 2022 the Tribunal received a submission on behalf of the applicant which attached documents including:

    ·A covering email from the representative informing the Tribunal that the applicant was granted bail on 29 March 2022 but upon release from prison was detained in MITA and has applied for a Bridging E visa; and

    ·A copy of the bail order made by the County Court of Victoria on 29 March 2022. 

26. On 20 June 2022 the Tribunal received a submission on behalf of the applicant which attached documents including:

    ·an eight-page written statement from the applicant, dated 9 June 2022 ;

    ·a three-page written statement from the applicant’s mother Ms Sukhdeep Kaur, dated 9 June 2022 along with an extract from her passport;

    ·a three-page written statement from the applicant’s sister Ms Ravneet Kaur, dated 9 June 2022 along with an extract from her passport;

    ·a two-page written statement from the applicant’s father Mr Jaswinder Singh, dated 9 June 2022 along with an extract from his passport; and

    ·a screen shot of part of an email from a lawyer acting for the applicant in his Bridging E application advising the Department is considering whether the applicant passes the character test set out in s 501(6)(c) of the Act and the implications of this for the applicant.

27. On 22 June 2022 the Tribunal received a submission on behalf of the applicant which attached documents including:

    ·A cover email from the representative advising the applicant does not wish to call any witnesses for the hearing and he does not require an interpreter;

    ·a two-page letter from Emma Turnbull Lawyers Pty Ltd, dated 25 May 2022 who are the lawyers acting for the applicant in relation to his criminal charges before the County Court of Victoria;

    ·a six-page written statement from the representative, dated 21 June 2022; and

    ·a Magistrates’ Court of Victoria document showing that on 20 May 2022 the applicant pleaded guilty to three charges of driving while his licence was suspended, one charge of failing to display L plates and one charge of negligently deal with the proceeds of crime and was released, without conviction, on his own undertaking to be of good behaviour for six months.

28. On the morning of the hearing the applicant’s representative responded to the Tribunal’s invitation to comment on the s 375A certificate.

29. The Tribunal also received various other correspondence from the applicant’s representative in relation to arranging the applicant’s participation in the Tribunal hearing and other administrative matters.

    Post-hearing submissions

30. During the Tribunal hearing the applicant requested the Tribunal to allow him to provide further information and documents after the hearing. Noting that the applicant is detained in immigration detention at the time of the Tribunal’s hearing, after discussion with the applicant and his representative, the Tribunal agreed to withhold from making a decision until 15 July 2022 to allow the applicant time to provide the additional information to the Tribunal.

31. On 27 June 2022 the representative provided a submission and apology to the Tribunal in relation to the representative’s failures to comply with the requirements of the COVID-19 Special Measures Practice Directions – Migration and Refugee Division made by the President of the Tribunal on 2 March 2021. The Tribunal accepts the apology and explanation provided by the representative and did not take any further action in relation to those matters.

32. On 30 June 2022 the applicant provided a copy of the Indictment filed in the County Court of Victoria by the Director of Public Prosecutions confirming the applicant’s charges before the County Court had been reduced to one charge of assault (of a person on 25 May 2021) and one charge of theft (of a bankcard and two suitcases on 25 May 2021).  

33. On 5 July 2022 the applicant provided:

    ·a photo of urine test results for the applicant performed while he was in prison stating that the applicant tested negative for the presence of eight different drugs for urine samples he provided on 28 July 2021, 17 September 2021, 28 September 2021 and 12 October 2021; and

    ·certificates stating the applicant completed, while in prison, the 12-hour Youth Substance Use Program and the 12-hour Youth Healthy Lifestyle Plan Program in January 2022.  

34. On 8 July 2022 the applicant provided a two-page letter from Emma Turnbull Lawyers dated 6 July 2022 confirming that on 29 June 2022 the applicant’s criminal charges before the County Court of Victoria were reduced from 14 charges to two charges (assault and theft) and transferred to the summary jurisdiction of the Magistrates’ Court of Victoria.

35. On 14 July 2022 the applicant provided a one-page letter from Emma Turnbull Lawyers dated 14 July 2022 confirming that separate criminal matters heard before the Magistrates’ Court of Victoria at Sunshine on 7 July 2022 and at Broadmeadows on 11 July 2022 did not resolve and have been listed for further mention hearings on 7 October 2022 and 24 August 2022 respectively.

36. On 18 July 2022 the applicant’s representative provided a further update by email on the applicant’s criminal law matters before the Magistrates’ Court of Victoria at Sunshine and also at Broadmeadows.

37. On 27 July 2022 the applicant’s representative provided a further update by email on the applicant’s criminal law matters before the Magistrates’ Court of Victoria at Melbourne, including a copy of a two-page letter from Emma Turnbull Lawyers dated 26 July 2022.

    Tribunal decision

38. The Tribunal has had regard to the oral evidence of the applicant, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. 

39. 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

40. 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)(i). 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?

    Section 116(1)(e)(i) - risk to Australian community or a segment of the Australian community

41. A visa may be cancelled under s 116(1)(e)(i) 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. 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].

42. The Tribunal asked the applicant whether the applicant agreed that there was a ground for the cancellation of the applicant’s visa. The applicant told the Tribunal that the applicant does not agree.

    Privilege against self-incrimination

43. At the commencement of the hearing the Tribunal confirmed with the applicant that some of his criminal charges remained before the courts and he had not entered a plea in relation to some of those charges. The Tribunal informed the applicant this means he has a privilege against self-incrimination in relation to those charges and explained to the applicant the nature of that privilege, its operation and effect. The Tribunal also explained to the applicant the consequences for both his criminal law matters and his review before the Tribunal if the applicant chose to rely on the privilege or chose to waive the privilege, including that if he relied on the privilege the Tribunal would make no adverse findings and draw no adverse inferences against the applicant in relation to the matters covered by the privilege. The applicant indicated to the Tribunal he understood these explanations and wished to rely on his privilege against self-incrimination in relation to his unresolved criminal law matters. As a result, the Tribunal refrained from asking the applicant about the circumstances that led to him being charged with the various unresolved criminal charges.

    Information disclosed in accordance with the procedure set out in s 359AA of the Act

44. The Department’s file included extensive documents from Victoria Police in relation to the applicant’s various criminal charges, the alleged circumstances supporting those charges, Victoria Police’s opposition to the applicant being granted bail and related matters. Most, but not all, of the information relevant to the applicant’s review disclosed in those documents was set out in the primary decision of a delegate of the Minister which the applicant provided to the Tribunal.

45. The Tribunal disclosed the additional information in the documents on the Department’s file to the applicant in accordance with the procedure set out in s 359AA of the Act. In doing so, the Tribunal could not provide the applicant with a copy of the documents that contained the information because these were the documents to which the s 375A certificate applied.

46. The additional information was:

    ·The charges filed against the applicant on 25 May 2021, being three charges of obtain property by deception and one charge of theft relate to when the applicant is alleged to have purported to purchase two televisions, two mobile phones and a UV printer from various people who had advertised them online and allegedly acquired the goods by using an internet application that purported to show the applicant transferring money to the victims that was not transferred;

    ·Those alleged offences the police state occurred on 30 September 2020, 8 October 2020, 23 November 2020 and 26 November 2020;

    ·Three photos that the police allege were on the applicant’s mobile phone that show what the police allege is the applicant holding an operable firearm in the form of a silver revolver handgun.

47. The Tribunal explained, and the applicant indicated at the appropriate times that he understood, both the relevance of this information to the applicant’s review and the consequences for the applicant’s review should the Tribunal rely on the information.

48. The Tribunal invited the applicant to comment on or respond to the information but offered the applicant additional time to consider the information before responding to it. The applicant requested additional time to consider the information and suggested he would need only a short adjournment of the hearing, which the Tribunal granted.

49. Upon the resumption of the hearing, the Tribunal cautioned the applicant about waiving his privilege against self-incrimination in relation to the theft and deception charges and asked about the handgun. The applicant told the Tribunal this issue was raised during his application for bail before the County Court but the police could not prove it was an operable handgun and in fact it was not, it was not a real gun but a gun that shoots only gel caps. The applicant confirmed to the Tribunal that he has not been charged with any criminal offence in relation to the handgun and the Tribunal makes no adverse finding and draws no adverse inferences against the applicant in relation to this matter.   

1. The applicant told the Tribunal that in the past 18 months he had learned a lot and accepts responsibility for what he has done. The applicant stated to the Tribunal he wants to be a good son to his parents and a good member of the community and he is remorseful for having caused his parents such embarrassment and cost and for having brought shame to their family such that he will not re-offend again.

2. The applicant’s evidence is if his visa is not cancelled he will live with his parents in the family home, pending a decision on their application for Subclass 187 visas where they will support him financially, practically and emotionally and his younger sister, to whom he is close, will support him emotionally, practically and socially.

3. The applicant’s oral evidence and the supporting written statements and submissions about the context of his actual and alleged offending and view that he is not a risk to the health, safety or good order of the Australian community or a segment of the Australian community may be summarised as follows:

   ·The applicant was born in Manila in the Philippines but is an Indian national, is not married and does not have any children;

   ·The applicant arrived in Australia in 2015 as a 17-year-old and completed his secondary schooling by distance education so he could work more, at the time as a rigger for a business called Active Draping;

   ·The applicant lived at home in Melbourne with his mother, father and his sister who is three years younger than the applicant;

   ·The applicant told the Tribunal after secondary school he completed a Certificate III and IV in Fitness, commenced a Diploma of Management online but did not complete that course. No documents in support of these claims were provided to the Tribunal;

   ·The applicant would like to study a Bachelor of Aeronautical Engineering in Australia and understands he would need to complete a University Foundation Program first;

   ·Following completion of his secondary schooling the applicant worked with his father in a concreting business before establishing his own business which failed financially;

   ·The applicant in his statement dated 9 June 2022 stated (errors in original):

   35. I moved out of my parents’ house at [address deleted], to live independently in January 2020. After I moved out, I stayed in contact with my family over the phone and frequently visited. After some time, the pandemic hit, and I had less work, and I began running out of savings. That’s when I realised that I wanted to move back home, but due to constant lockdowns I just wasn’t able to. I felt very lonely, depressed, and missed my family because I wanted their support and wanted to move back in. After that time, I got involved with alcohol and drugs to cope with the stress. Because of this, I started to hang out with a bad peer group.

   36. I am not going to blame anyone because the only person to blame is myself. I shouldn’t have lost hope and control of myself which was how I eventually ended up in a dark place in my life that I had never been to before.

   37. I have realised from that point on that I was never ready to live independently and never had enough savings that would get me through the pandemic by myself. I had always lived with my family and been close to them. I did not prepare myself enough to be living independently. This was made worse by the COVID-19 pandemic and continuous lockdowns in Melbourne. Ultimately, that was a very dark phase of my life which, when I look back at, I would never want to be in that phase ever again. I should never have tried to overcome that phase of my life by taking drugs and alcohol.

   38. I take full responsibility for my actions, and I should have known better. I cannot go back to the past to change my actions. Instead, I can focus on bettering myself as a person for a better life ahead and making it up to everyone that I let down.

   ·The applicant’s evidence is he will seek work and study rights, but this was in the context of his second application for a Bridging E visa. The Tribunal notes that based on the information before it there are no conditions from Schedule 8 to the Regulations attached to his Bridging B visa. This means if the Tribunal sets aside the cancellation of the applicant’s Bridging B visa and substitutes a decision that the visa is not cancelled then the applicant would be able to work and study while holding that visa;

   ·The details of the applicant’s resolved and pending criminal charges are set out in Table 1 below.

   Table 1: the applicant’s alleged and proven criminal offending

Date charged	Charges filed	Outcome
23 April 2021 and unknown	Matter 1 1. Drive whilst suspended 16 July 2020; 2. Fail to produce licence 16 July 2020; 3. Fail to display L plates on 16 July 2020; Matter 2 1. Drive whilst suspended 9 March 2021; Matter 3 1. Theft of motor vehicle; On 22 April 2021 possess - 2. Cannabis; 3. Methylamphetamine; 4. Heroin; 5. Knowingly deal with proceeds of crime; 6. Negligently deal with proceeds of crime; 7. Possess dangerous article; and 8. Drive whilst suspended on 22 April 2021.	On 20 May 2022 at Sunshine Magistrates’ Court the applicant pleaded guilty to: Matter 1 1. Drive whilst suspended on 16 July 2020; 3. Fail to display L plates on 16 July 2020; Matter 2 1. Drive whilst suspended on 16 July 2020; Matter 3 6. Negligently deal with proceeds of crime; 8. Drive whilst suspended on 22 April 2021. Charge 2 of matter 1 was discharged by the Court. Charges 1, 2, 3, 4, 5 and 7 of matter 3 were withdrawn. Outcome: Ordered, without conviction, to be of good behaviour for six months without a bond. No order made in relation to the applicant’s driver’s licence.
25 May 2021	1. Obtain property by deception; 2. Theft; 3. Obtain property by deception; 4. Obtain property by deception. These charges relate to the applicant allegedly obtaining on or after 30 September 2020 two televisions (value unstated), on or after 8 October 2020 a mobile telephone (value AUD1,350), on or after 23 November 2020 a mobile telephone (value AUD1,120) and on 26 November 2020 a UV printer (value AUD18,700).	Not resolved, no plea entered. Next hearing: 24 August 2022 at Broadmeadows Magistrates’ Court.
Unknown ( continues next page )	1. Burglary on 6 May 2021; 2. Burglary on 7 May 2021; and 3. Theft on 6 May 2021. The supporting particulars are not known.	Applicant intends to enter a plea of guilty to one charge of burglary. Next hearing: 7 October 2022 at Sunshine Magistrates’ Court
Date charged	Charges filed	Outcome
28 May 2021	On 25 May 2021 - 1. Kidnap; 2. Unlawful imprisonment; 3. Intentionally cause serious injury; 4. Recklessly cause serious injury; 5. Intentionally cause serious injury; 6. assault; 7. Trespass with intent to steal, persons present (home invasion); 8. Theft (2 suitcases, value AUD150); 9. Theft (bankcard, value AUD20); 10. Commit indictable offence (kidnap) while on bail; On 28 May 2021 - 11. Commit indictable offence while on bail; 12. Make threat to kill; 13. Attempt to pervert the course of justice; and 14. Commit indictable offence (use intimidation against a person involved in a criminal investigation) while on bail.	On 29 June 2022 in the County Court of Victoria charges 1, 2, 3, 4, 5, 7, 8, 10, 11, 12, 13 and 14 were withdrawn. On 26 July 2022 the applicant pleaded guilty to charges 6 (assault) and 9 (theft) in the Magistrates’ Court of Victoria at Melbourne. Outcome: charges proven and dismissed.

1. The applicant has been charged with at least 33 criminal charges for matters that are alleged to have arisen between September 2020 and May 2021 across 11 incidents.

2. The applicant pleaded guilty to five criminal charges on 20 May 2022 and was sentenced to an undertaking to be of good behaviour for six months, without conviction. This sentence indicates to the Tribunal that the sentencing Magistrate assessed the applicant’s moral culpability in relation to these offences to be at the very low end of criminality.

3. The applicant pleaded guilty to two criminal charges on 26 July 2022 in the Magistrates’ Court of Victoria at Melbourne and the charges were dismissed, according to the written submission of the applicant’s criminal law lawyers “… due to the extraordinary consequences you had face (sic) due to your 305 days of presentence detention and your unfortunate situation in immigration detention.” This indicates to the Tribunal that the sentencing Magistrate assessed that the applicant had spent sufficient time in prison on remand that further sentence was not necessary and that the applicant’s moral culpability in relation to these offences was at the very low end of criminality.

4. On 20 May 2020 one of the applicant’s criminal charges was discharged and another six charges were withdrawn. On 26 July 2022 a further 12 criminal charges were withdrawn. Of the 33 criminal charges filed against the applicant has pleaded to five charges, 18 charges have been withdrawn and three charges have been dismissed to date. The applicant’s remaining seven criminal charges are being determined in the summary jurisdiction of the Magistrates’ Court of Victoria.

5. In relation to the seven criminal charges filed against the applicant that remain before the courts, the applicant has indicated an intention to plead guilty to one charge of burglary in the Magistrates’ Court of Victoria at Sunshine. The applicant has not indicated what he expects will happen to the remaining charges at Sunshine of burglary and theft.

6. If the applicant’s plea of guilty proceeds as the applicant intends then that leaves four criminal charges in the Magistrates’ Court of Victoria at Broadmeadows, unresolved.

7. The Tribunal notes the applicant has not been convicted of any criminal offence to date. The applicant spent 305 days or 10 months remanded in custody before being granted bail and has been detained in immigration detention since, a further period of four months.

8. Without referring to the specific allegations made against the applicant in relation to the withdrawn or unresolved criminal charges, including the criminal charge the applicant intends to plead guilty to, the Tribunal discussed with the applicant his general circumstances that led to the cancellation of his visa.

9. The applicant told the Tribunal he:

   ·first began using cannabis in November 2020;

   ·started using methylamphetamine, colloquially know as ice, in November 2020 too;

   ·was using ice more frequently by December 2021 and staying away from home often;

   ·moved out of home in January 2021, by which time he was using ice daily;

   ·stopped using ice when arrested on 28 May 2021 and has not used drugs since despite being offered drugs both in prison and in immigration detention;

   ·last used ice on 25 May 2021;

   ·has completed a 6-week substance use and healthy lifestyle program in prison;

   ·was urine tested for the presence of drugs nine times while imprisoned and all of his tests were negative;

   ·has not been tested for the use of drugs in immigration detention;

   ·does not consider himself addicted to ice or any drug, but did state he was addicted to ice between January 2021 and May 2021 when he was using ice daily;

   ·saw a psychiatrist fortnightly while in prison who gave him exercises to do such as meditation and crosswords;

   ·started taking psych assessments while I was in criminal detention because I started feeling very low, alone and started to doubt myself because I felt that I was going crazy

   ·has had no access to psychiatric or psychological services while detained in immigration detention;

   ·has no cravings or urgings in relation to his ice use;

   ·has the ongoing support of his parents and sister who all wish to see him return to the family home;

   ·will move back into the family home if his Bridging B visa is not cancelled;

   ·will seek the assistance of Sunbury Community Health to obtain the services of a general practitioner doctor;

   ·will immediately tell his family if he has any urges to use drugs again and would go into rehabilitation;

   ·… will seek community-based rehabilitation programs close to my parents’ house and make use of tools such as online counselling which is available 24/7 for help. Sunbury Community Health provides drug and alcohol support group service, and this is easily accessible to me as I will be residing in Sunbury at my parents’ house.

   60. To mentally look after myself, I will take up my hobbies that I have always enjoyed, including playing soccer, cooking at home for myself and my family, playing with our dog and taking him on regular walks, participating in community events and giving back to the community through voluntary services at our place of worship, (sic)

10. The Tribunal noted during the hearing that the applicant’s parents and sister were not present to support him. The applicant told the Tribunal he has caused his family great stress and upset and did not wish for his family to see him restrained and he would find it difficult to give evidence if his family were present because they would be very emotional which would cause him to become very emotional. The Tribunal accepts the applicant’s evidence in relation to having the ongoing love and support of his family and also accepts that their emotional, financial and practical support for the applicant would potentially enable the applicant to viably live in the community. The applicant indicated his parents and sister could give evidence by telephone if required by the Tribunal. The Tribunal considers the detailed written statements provided by the applicant’s parents and sister provided sufficient information, which the Tribunal accepts, about their view of the character of their son and brother, their ongoing love for and support of him and the hardship they would each suffer if his visa is cancelled, such that the Tribunal did not need to put them or the applicant through the additional burden of each of the applicant’s parents and younger sister giving oral evidence to the Tribunal.

11. The Tribunal accepts:

    ·that prior to the applicant commencing his drug and alcohol use he had a positive work and study history and a pro-social personal history;

    ·the applicant is strongly motivated to avoid further criminal offending and drug use given his reflections upon the stress, financial cost and shame he feels he has brought to his family and his desire to avoid deportation or further time in prison or immigration detention;

    ·the evidence before the Tribunal of the applicant’s four negative for the presence of drugs urine tests in support of the applicant’s evidence that he has not used drugs since being remanded in custody and subsequently detained in immigration detention;

    ·the applicant has a genuine desire to resume his place in society and resume both working and studying in addition to his community activities which include religious observances and voluntary work;

    ·the applicant has ceased contact with the people he associated with during his period of drug use, in part because his conditions of bail prohibit the applicant from contacting his former girlfriend and an associate who were potentially co-accused in relation to the matters for which the applicant was charged on 25 and 28 May 2021.

12. The applicant’s representative submitted (errors in original):

    We also submit that the Honorable Judge while granting the bail would have considered the applicant’s entire history and concluded that it would be acceptable to grant the applicant a bail. The Honorary Judge would have had access to the entire criminal files He had also placed conditions on the bail which would act as sufficient deterrent or safeguards to ensure there is no likelihood of reoffending. Thus, we believe that the concerns expressed by the officer in cancelling the visa should be alleviated by the decision.

    We submit the court would not have granted the bail if the Honorable Judge believed that there was an unacceptable risk that the applicant might commit further offences while on bail; endanger the safety or welfare of the public or interfere with witnesses for the court case. As such, strong weight must be given to the fact that the applicant has since been granted bail. We thus request the presiding Member to also arrive to a similar conclusion that sufficient safeguards and support plan are in place to ensure the applicant is not a danger to the community.

13. The Tribunal does not accept these submissions. The considerations relevant to the granting of bail under the Bail Act 1977 (Vic) where, depending on the offences alleged, different tests apply, include at a very broad level the exceptional circumstances and unacceptable risks test or the show compelling reasons and unacceptable risks test or the unacceptable risks only test, each of which are substantially different to the considerations under s 116(1)(e)(i) of the Act where the Tribunal must consider whether the applicant’s presence in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

14. Of great concern to the Tribunal is that it has formed the view that the applicant does not have genuine insight into his behaviour, particularly his drug use, that led to the cancellation of his visa.

15. The applicant demonstrated to the Tribunal that he has situational awareness of his drug use and the circumstances surrounding his drug use. The applicant did not demonstrate to the Tribunal any meaningful insight into why he reacted to his circumstances, or the stressors he experienced prior to and after leaving the family home, by turning to the use of drugs and alcohol. The Tribunal accepts that the applicant completed, while in prison, a 12-hour Youth Substance Use Program and a 12-hour Youth Healthy Lifestyle Plan Program in January 2022 and could have gained some insight from particularly the first course into his drug use, but these insights were not evident during his oral evidence.

16. The Tribunal acknowledges that the applicant has been imprisoned or detained in immigration detention since his arrest on 29 May 2021 and therefore has had limited opportunities to seek professional help to gain insight into his drug use, in particular. The applicant’s evidence is he had fortnightly psychiatric sessions when in prison but his was for his mental health.

17. The Tribunal remains concerned that should the applicant experience similar stressors in his life in future to what he did when he commenced his drug use in 2020, the applicant could again turn to drug use. The Tribunal views the applicant’s plans or intentions to live at the family home, resume both working and other pro-social activities and to access community health services, as positive and helpful. The Tribunal is not convinced that these plans and intentions, given the applicant’s lack of insight into his drug use, ameliorate the risk of future drug use and potential related criminal behaviour by the applicant and the risk such drug use presents to the health, safety or good order of the Australian community or a segment of the Australian community to an extent that the Tribunal could find that the ground for cancellation in s 116(1)(e)(i) is not enlivened. In this regard, the Tribunal notes the applicant’s evidence is that his drug use commenced in November 2020 prior to him leaving the family home in January 2021.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

1. 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 Procedural Instruction, formerly part of the Department’s Procedures Advice Manual, titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

   The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

2. The applicant arrived in Australia with his family as the holder of a secondary visa that was granted after his mother was granted a primary visa.

3. The applicant wishes to remain in Australia where his family continue to reside. The applicant’s mother has applied for a Subclass 187 visa and the applicant, his father and sister are secondary applicants. Their visa applications were refused by a delegate of the Minister in September 2019 and they have applied to the Tribunal to review that refusal decision. Their applications for review in relation to the Subclass 187 visa applications have not been heard by the Tribunal yet, and so remain unresolved.

4. The applicant has been in Australia since November 2015 and wishes to continue to live with his family in Australia to work and study. The Tribunal accepts that the reasons the applicant came to Australia, being to be with his family, complete his schooling and potentially undertake further study, are ongoing and that this aspect of this consideration weighs against the cancellation of the applicant’s visa.

5. The Tribunal does not find that the applicant has a compelling reason to remain in Australia. The Tribunal acknowledges that a Subclass 187 visa provides its holder with permanent residency in Australia and that the applicant and his family believe they have made their lives here since 2015 and wish to remain in Australia long-term. It is uncertain at the time of this decision whether the applicant’s mother will be granted a primary Subclass 187 visa and the applicant will be granted a secondary visa and so there is considerable uncertainty about the future of the applicant’s family.

6. The Tribunal finds that overall this consideration weighs in support of the cancellation of the applicant’s visa but in the applicant’s circumstances the Tribunal gives this consideration only modest weight.

   The extent of the applicant’s compliance with their visa conditions

7. The applicant has held several visas: a Subclass 457 visa, a Bridging A (Subclass 010) visa, a Bridging B (Subclass 020) visa and a Bridging E (Subclass 050) visa. At the time of this decision the applicant does not hold a visa and has been detained in immigration detention as an unlawful non-citizen due to the cancellation of his Bridging B visa.

8. Only the applicant’s Subclass 457 visa had a condition attached, which was condition 8501 must maintain adequate health insurance while in Australia. There is no evidence before the Tribunal that the applicant breached condition 8501 while holding the Subclass 457 visa or that the applicant has otherwise acted in breach of a visa he has held.

9. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

   The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

10. The applicant told the Tribunal of his plans for the future and the difficulties he has and is experiencing in immigration detention. The applicant’s evidence is that he is finding being detained harder than he found being remanded in prison. In his statement dated 9 June 2022, made to support his application for a Bridging E visa, the applicant stated:

    25. I am really struggling in immigration detention. I find it very hard to be in the detention centre where you cannot work or study or have access to services or improve on yourself and work towards having a better future. I feel very lonely and sad. I feel like this has impacted on my short-term memory. …

    43. Although criminal detention was difficult, that is nothing compared to being in immigration detention. It is even harder here as I cannot work or study. I feel stuck here between four walls. I also feel lonely and depressed. I find myself surrounded by these thoughts regularly and it scares me.

11. The applicant told the Tribunal he does not have access to psychiatric or psychological treatment in immigration detention and he is not currently prescribed or taking any medication. There is no information before the Tribunal to indicate the applicant has been diagnosed with any mental health or other medical condition.

12. The Tribunal accepts that the applicant has found his time remanded in custody difficult and his time in immigration detention even harder, causing him significant emotional hardship.

13. The applicant also told the Tribunal about his family history and that he has no family or relatives in India and does not know where he would go or what he would if his visa is cancelled and he has to return to India. There is no evidence before the Tribunal as to the financial circumstances of the applicant or his family.

14. The Tribunal accepts that if the applicant’s visa is cancelled he would be separated from his family in Australia, at least until their Subclass 187 visa applications are finally resolved, and this would cause the applicant significant emotional hardship.

15. In her statement dated 9 June 2022 the applicant’s mother, Ms Sukhdeep Kaur, wrote about the support she and her husband can provide for the applicant, how close they are as a family and how she would like her son, the applicant, to be released from immigration detention where he is struggling and return to the family home.

16. In his statement dated 9 June 2022 the applicant’s father, Mr Singh, wrote about his relationship with the applicant, how close they are and the bond they share. Mr Singh also wrote about the support he and his wife can provide to the applicant and his desire to see his son return to the family home.

17. In her statement dated 9 June 2022 the applicant’s sister, Ms Ravneet Kaur, wrote about her special relationship with the applicant who is her only sibling and older brother, their common interests, the support they provide to each other and his character. Ms Ravneet Kaur stated:

    16. If it is decided that Navreet will remain in immigration detention, it will be very hard for all of us including Navreet himself. The plans he made for once he moves back out, and to be among the family again, to feel the same love, admiration, support he once had before moved out will feel impossible to feel once again.

    17. My parents and I will be really shattered if Navreet cannot be released from immigration detention. We want to help Navreet by bringing him back home and helping him plan for a brighter future for himself. This chance is very crucial for him as he is really lost and lonely at this point in life.

18. The Tribunal accepts that if the applicant’s visa is cancelled this would cause his parents and sister significant emotional hardship, which would become even greater if the applicant has to return to India and is separated from his family for a period of time or potentially longer-term.

19. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

20. The circumstances in which the ground for the cancellation of the applicant’s visa arose are set out in paragraphs 44 to 67 of these reasons for decision.

21. The applicant explained the circumstances of the traffic offences he pleaded guilty to on 20 May 2022. At the time of the Tribunal hearing the applicant had not been sentenced in relation to the matters heard at the Melbourne Magistrates’ Court. As those and the other criminal charges were pending at the time of the Tribunal’s hearing, the Tribunal did not ask the applicant about the circumstances of those matters.

22. The applicant acknowledged his responsibility for the criminal offences he had pleaded guilty to and been sentenced for at the time of the Tribunal’s hearing. There is no evidence before the Tribunal, and the applicant does not claim, that there were any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation arising.

23. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

24. There is no information that the applicant has been anything other than truthful and cooperative with the Department. The applicant participated in the cancellation process in relation to his Bridging B visa, including by responding to the NOICC.

25. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

26. The applicant is a secondary applicant for a Subclass 187 visa as a dependent of his mother. If the applicant’s Bridging B visa is cancelled this will not cause or result in the cancellation of any other visa.

27. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

28. The mandatory legal consequences that would flow from the cancellation of the applicant’s visa have already, in part, been visited upon the applicant as at the time of this decision he is detained in immigration detention. The applicant is also at risk of being deported under s 198 of the Act and if his visa is cancelled would be subject to s 48 of the Act preventing him from applying for some visas while he remains in Australia and also be subject to Public Interest Criterion 4013 from Schedule 4 to the Regulations, the effect of which could be to prevent the applicant from returning to Australia for three years.

29. The Tribunal accepts that these mandatory legal consequences are adverse for the applicant.

100.   The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

101.   The applicant is an adult and does not have any children, does not claim Australia owes him any obligation of protection or that he may be indefinitely detained in immigration detention if his Bridging B visa is cancelled. The Tribunal finds that Australia does not owe the applicant any obligations under international agreements that would be breached by the cancellation of the applicant’s visa.

102.   The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

103.   The applicant’s Bridging B visa is a temporary visa.

104.   The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa

Any other relevant matter

105.   The applicant’s representative, with the applicant’s support, requested that the Tribunal wait for the outcome of his criminal law matters that were heard on 7 July 2022 and 11 July 2022 before making a decision if that decision was to be adverse to the applicant. The Tribunal retained an open mind about its decision in this review at that time but agreed to the request and to delay from making decision before 15 July 2022 to allow the applicant to provide further and additional information to the Tribunal.

106.   The Tribunal subsequently decided, after receiving information about the applicant’s criminal law hearings on 14 July 2022 and 18 July 2022, to wait for the outcome of the applicant’s plea hearing on 26 July 2022. The applicant’s representative informed the Tribunal of the outcome of the 26 July 2022 hearing on 27 July 2022.

107.   The Tribunal notes that to date the applicant has not been convicted of any criminal offence in Victoria or Australia.

Conclusion

108.   Considering the applicant’s circumstances as a whole, the Tribunal concludes that the visa should not be cancelled because the discretionary considerations that weigh against the cancellation of the applicant’s visa outweigh the discretionary considerations that weigh in support of the cancellation of the applicant’s visa.

decision

109.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

Michael Ison
Senior Member