Singh (Migration)

Singh (Migration) [2022] AATA 2165 (18 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kamaljeet Singh
CASE NUMBER:  2105405
HOME AFFAIRS REFERENCE(S):          BCC2020/2802877
MEMBER:Brendan Darcy
DATE:18 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 May 2022 at 9:07am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the safety of the Australian community – applicant charged with multiple offences – no conviction currently recorded – guilty pleas – spent convictions – mental health issues – bridging visa granted after detention period – pathway towards permanent residency – separation from his wife – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 116, 140, 198, 359
Migration Regulations 1994
Misuse of Drugs Act 1981 (WA)
Spent Convictions Act 1988 (WA)
Transport (Road Passenger Services) Act 2018 (WA)
CASES
Gong v MIBP [2016] FCCA 561
HZCP v MIBP [2018] FCA 1803
MIMA v SRT (1999) 91 FCR 234
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 April 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).
The delegate cancelled the visa under s 116(1)(e)(i) on the basis that they were satisfied the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Via a teleconference facility, the applicant appeared before the Tribunal on 17 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother, Virenderjeet Singh Buttar. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. At the time of the scheduled hearing, the applicant was detained in the immigration detention centre at Yongah Hill in the State of Western Australia.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 11 March 2022 to give evidence and present arguments at a resumed hearing. The Tribunal also received oral evidence from the same abovementioned brother of the applicant and the applicant’s spouse, Sukhpreet Kaur. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. At the time of the scheduled hearing, the applicant was holding a bridging visa and was residing in the community with his spouse.
The applicant was not represented by a registered migration agent or legal practitioner in this matter.
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
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 grounds 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.
Background
The applicant was born on 13 April 1992 in the Republic of India.
The applicant’s married spouse, Sukhpreet Kaur, and the applicant were granted a Class TU Subclass 500 student visa on 24 October 2019, which was set to expire on 17 November 2021. The applicant was the secondary visa holder to his wife’s student visa in relation to which she was enrolled in full time study with an education provider in Western Australia.
There is no evidence the applicant has any children or other dependants.
The applicant had been issued with a Notice of Intention to Consider Cancellation (NOICC) letter on 23 February 2021 by an official of the Department of Home Affairs (the Department). The decision record was attached to the review application.
On 23 March 2021, the visa holder’s then legal practitioner responded on the visa holder’s behalf and a series of three emails followed on 29 March 2021.
A delegate acting on behalf of the Minister cancelled the applicant’s student visa on 21 April 2021.
The applicant applied to have the delegate’s cancellation decision reviewed on 27 April 2021.
Particulars of the ground for cancellation
The NOICC issued on 23 February 2021 outlined that:
·     On 3 December 2020, the Western Australian Police (WAPOL) charged the applicant with unlawful and indecent assault.
·     The applicant was released on bail and this matter remained pending before the Armadale Magistrates’ Court on 10 June 2021.
·     The Western Australian Department of Transport (DoT) was investigating the applicant in relation to a large number of alleged offences committed during the period 22-26 December 2020 pursuant to the Transport (Road Passenger Services) Act 2018 (WA) and its subordinate legislation, while the applicant was engaged as a Taxi Driver for Swan Taxis.
·     The WA DoT had suspended the applicant’s Passenger Transport Driver’s Authorisation as the applicant may have committed a ‘disqualification offence’.
·     Cumulatively, the above shows a disregard for Australian laws and values.
·     The circumstances of the applicant’s alleged criminal conduct show the applicant poses a risk to a particular segment of the community, namely women.
·     The applicant had used his position as a Passenger Transport Driver to fraudulently demand money to which he was not entitled. The applicant allegedly consumed alcohol and drugs while conducting a ride sharing service, adding to the likelihood of being impaired whilst driving. These matters further put the general community at risk.
The NOICC detailed the criminal allegations that led to the charges being laid against the applicant. It states, in full:
It is alleged:
·     On Thursday 5 November 2020, the visa holder was driving a white Mazda vehicle registration 1GBP672, whilst conducting ride share services under the transport application “Didi”.
·     He collected a female passenger from her home in Brookdale and drove her to the Thirsty Camel bottle shop in Armadale, WA. The alleged female victim had already prepaid her fare for the ride, via the online application on her mobile phone.
·     The victim exited the vehicle to purchase some alcoholic drinks, then returned to sit in the rear passenger seat of the vehicle.
·     During the return journey back to her home address, the visa holder stopped the vehicle and demanded her to pay an additional $20 into your personal bank account, for wasting his time whilst she was in the bottle shop.
·     The victim agreed and she put the visa holder’s personal bank details into her phone. She subsequently completed the monetary transfer of funds.
·     After resuming the journey back to the victim’s house, the visa holder stopped the vehicle once again and demanded the victim get in the front seat of the vehicle. After she complied, he locked the vehicle, then took one of her alcoholic drinks and consumed it.
·     The visa holder spoke to the victim, telling her “You are beautiful. I am in love with you”.
·     He slowly ran his hand down the victim’s arm, making her uncomfortable. He then ran his hand over some scarring on the victim’s right leg, after which he attempted to slide his hand between her thighs. The victim did not consent to this behaviour.
·     The victim kept her legs crossed and demanded the visa holder take her home, which he did.
The NOICC further outlines the Department received further information regarding the applicant being investigated by the Western Australian Department of Transport for a large number of offences against the Transport (Road Passenger Services) Act 2018 (WA) and the Transport (Road Passenger Services) Regulations 2020 (WA), during the period 22 to 26 December 2020, whilst he was driving for Swan Taxis. The matters included: overcharging passengers; failure to operate the fare calculation device (meter); the fraudulent use of passengers’ credit cards; disorderly conduct as a driver; failure to stop after a collision; possible consumption of illicit substances; and demanding cash payments from passengers. The applicant’s passenger transport driver’s authority was suspended on the basis he committed a ‘disqualification offence’.
In the written response to the NOICC, the applicant’s representative from Tang Law (Perth) argued the grounds for cancellation did not exist for the following reasons:
·     The then visa holder has been charged with an offence for which he has pleaded not guilty. Whilst a risk to health, safety or good order might arise on the possibility that an event has occurred in the past, there is, overall, insufficient evidence to support a finding that the then visa holder is a risk to the Australian community in all the circumstances;
·     The then visa holder does not accept that the incident for which he has been charged occurred in the manner described in the statement of material facts and has given an alternative version of events;
·     The then visa holder’s current intention is to defend himself against the charges;
·     The then visa holder has met his bail conditions and made no attempt to contact or approach the alleged victim;
·     There is no evidence of a criminal history, other indecent conduct and no evidence he has breached his bail conditions;
·     The then visa holder has been previously employed, is able to support himself whilst awaiting the conclusion of criminal proceedings and will have the support of family members during that period;
·     There has been no conviction to date.
Accompanying the legal submission was a signed statutory declaration by the applicant (dated 21 March 2021) indicating that the applicant did not accept the charges against him, that he pleaded not guilty at a Magistrates’ Court hearing and that he expected the charges to be dropped. The applicant also stated he refuted details about the charges and allegations including drinking alcohol or illicit drugs; that he had never been in a collision as ride share/taxi driver; that he never asked customers to make cash payments; and that he was never involved in credit card fraud.
A number of reference letters were submitted from people who have known the visa holder for an extended period, and have all expressed their shock and disbelief about the visa holder’s indecent assault charge as it is completely out of character. Of particular note was the letter by the applicant’s wife who does not accept the charges and allegations against her husband.
The Department also received a letter from the applicant’s criminal lawyer dated 23 March 2021, stating the applicant has an excellent defence and that he is entitled to plead not guilty and be presumed innocent right through the process.
As mentioned above, a delegate proceeded to cancel the visa on 21 April 2021.
The delegate stated members of the general community utilising ride share services have the right and expectation to feel safe, respected and at ease in utilising such services, and concluded that the applicant had compromised the safety of his passenger, the alleged victim, on 5 November 2020, and another victim on 23 December 2020. These incidents suggested that the applicant poses a risk to the health and safety of a particular segment of the community, namely women.
The delegate further stated the then visa holder has also allegedly used his position to fraudulently demand money to which he was not entitled, as well as allegedly consume alcohol and drugs whilst conducting a ride share service. This adds to the likelihood of him being impaired whilst driving, further putting the general community at risk.
In the decision record, the delegate specially stated:
These are mainly offences that point to the criminality, violent tendency or dishonesty of an individual, as well as serious road traffic, drugs and weapons offences. I consider DoT have disqualification offences within their legislation to minimise those offenders who may pose a risk to the community and the visa holder has been deemed to be such a risk.
Based on the information above, the delegate proceeded to consider the visa holder may pose a risk to the health and safety of the Australian community or a segment of the Australian community and that the then visa holder’s visa was therefore liable for cancellation under s 116(1)(e)(i) of the Act.
Evidence at merits review
The applicant applied to have the delegate’s decision reviewed by the Tribunal on 27 April 2021. The decision record was attached to the application.
On 2 November 2021, the Tribunal received a range of submissions from the applicant, including a number of already submitted reference letters and the letter from his criminal lawyer.
Of particular note in relation to the grounds for cancellation was the prosecution notice issued by the Magistrates’ Court of Western Australia. It states that the applicant had been charged with unlawfully assaulting a person on 5 November 2020 in Brookdale in Western Australia and that on 10 June 2021, the applicant pleaded guilty. The applicant was required to pay a fine to the victim of 800 Australian dollars and other costs amounting to 130.50 Australian dollars. It further indicates the conviction is eligible to be spent.[1] The prosecution notice also indicates that the applicant was issued bail on 29 December 2020 (with the condition that he was not to contact or attempt to contact ‘the protected person’ or to enter or remain upon any premises where the protected person lives or works). It further indicates that the applicant’s bail was renewed on 19 January 2021.
[1] According to the Western Australian Police Force website: ‘What convictions are eligible to be spent? “The WA Police Force can only spend a lesser conviction heard in a WA Court. A lesser conviction is one for which a fine of $15,000 or less or a term of imprisonment of 12 months or less was imposed (this includes suspended imprisonment sentences). The Spent Convictions Act 1988 states that a Western Australian conviction is not eligible to be spent until the prescribed period has expired. The prescribed period commences to run from the date of the most recent conviction in this or any other state or territory that resulted in a fine of over $500 or any type of penalty such as a court order or imprisonment.
Also of particular note was a letter dated 26 October 2021 from the applicant’s criminal lawyer. It indicated that a ‘deprivation of liberty’ charge was listed for committal and that a court date had been set for 8 December 2021. It also states that the applicant instructed his counsel to plead guilty to two offences to offer to sell or supply cannabis and an offence of committing fraud.
Curiously, the applicant also provided a National Crime Check report from the Australian Criminal intelligence Commission. It indicates there were no disclosable court outcomes against the applicant’s name. The document is dated 15 September 2020, which predates the alleged offending leading to convictions as outlined above.
Also submitted was a letter from the applicant’s consulting psychiatrist dated 25 February 2021. It indicates that the applicant has visited the psychiatrist three times since an initial assessment in June 2020. It states the applicant has a Bipolar Affective Disorder Type II, with the onset of this appearing to have been in his mid-teens. It mentions that he sought psychiatric care at the age of 16 and was treated with antidepressants and inconsistent follow-up care. The symptoms of the condition include periods of depressed mood, along with periods of hypomania. Hypomania episodes are characterised by a period of 1-3 days of persistent mood elevation, being driven or disorganised, risk-taking, increased libido, need for minimal sleep, grandiosity, increased speech production, intrusiveness of personal space and worsening irritability.
A letter from the applicant’s medical practitioner dated 24 March 2021 states that the applicant suffers from Bipolar Affective Disorder Type II, and that he has been treated for nutritional deficiency and for oesophageal reflux. The letter further stated the applicant had been under the care of a consultant psychiatrist since June 2020 and that he has been pharmaceutically treated with mood stabilisers and antidepressants for Bipolar Affective Disorder Type II (or Bipolar II disorder).
The applicant also provided a letter of ‘Suspension of Passenger Transport Drive Authorised’ from the Department of Transport dated 15 January 2021.
At the scheduled hearing, the applicant subsequently pleaded guilty to the two charges of unlawful assault mentioned above and one charge of selling illicit drugs.
The applicant (and the witness) insisted that the applicant had only pleaded guilty to the charges of assault against a female customer based on the counsel received from their criminal lawyer to avoid a penalty of greater severity.
With regard to the conviction related to the selling of illicit drugs, the applicant claimed the drugs were just left in the taxi, and that he successfully sold the drugs to one customer while another refused the offer. He also explained that the offending occurred due to difficulties with understanding English.
During the scheduled hearing, the Tribunal enquired as to the outcome of the court hearing regarding an offence relating to the deprivation of liberty allegedly occurring on 23 December 2020. The applicant referred the Tribunal to the emailed correspondence from the Department of Public Prosecutions (WA) to the applicant’s criminal lawyer indicating the State had discontinued the charge of ‘deprivation of liberty’ that had otherwise been scheduled for a court hearing on 2 February 2022. On 10 February 2022, the Tribunal emailed the applicant for confirmation that the charge was dismissed for want of prosecution on 2 February 2022.
Section 359A letter
On 2 February 2022, the Tribunal forwarded correspondence to the applicant’s representative. Addressed to the applicant, an attached letter outlined that a non-disclosure certificate had been attached to the Department’s file (BCC2020/2722923). The non-disclosure certificate had been issued in accordance with s 375A of the Act (the NDC). The certificate is signed and dated 1 June 2021. It states that it would be contrary to the public interest to allow any other person other than a Member of the Tribunal access to several folioed documents, and that it would be contrary to the public interest because it would prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance and disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods. A copy of the non-disclosure certificate was attached to the letter for comment.
Primarily the information concerned involved communications between the Department of Home Affairs and Western Australian Police regarding criminal proceedings and investigations by the Department of Transport (WA) against the applicant. It included: a Statement of Material Fact dated 3 December 2020 about an alleged incident of assault that occurred on 5 November 2020; and an outline of the associated bail conditions that were to remain in place until the date of a court trial on 10 June 2021. It included correspondence indicating the Department of Transport (WA) has car camera footage indicating the applicant worked more than 20 hours within a week on 22-28 December 2020 and that he was being investigated for up to 62 separate offences against the Transport (Road Passenger Services) Act 2018 (WA), including offering to sell a prohibited drug contrary to the Misuse of Drugs Act 1981 (WA), multiple instances of fraud and deprivation of liberty. Of particular interest is a long list of alleged specified breaches of the law provided by the Department of Transport (WA) following an investigation of the recording of the applicant while employed by Swan Taxis. The alleged breaches included multiple acts of fraud and many instances of the selling and/or offering of illicit drugs as an employee of Swan Taxis. Also of interest is the communication between parties indicating that the applicant had been working more than 48 hours in four days during the Christmas period of 2020 and that WA Police had information the applicant was making contact with Qantas during the Christmas period, looking to purchase a flight, destination unknown. Of further interest is the applicant’s residence at Canning Vale at the time his bail had been issued. However, an email dated 7 April 2021 indicated a police officer “managed to get hold of Mr Singh the other week and encouraged him to correctly change his bail address, as he had apparently been residing at Kulin Pass for some time and has not responded to our written notices at the previous address”.

The letter further stated that the information is relevant to the review because it provides a greater level of detail that 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 or a segment of the Australian community, pursuant to s 116(1)(e)(i), namely vulnerable women and paying passengers of licensed ride share and taxi vehicles. The level of detail indicates the extent of fraudulent behaviour was frequent and methodical and that selling and/or offering of prohibited drugs was more regular and deliberate and not as opportunistic and out of character as the applicant has previously claimed. This undermines the credibility of the applicant’s claims that his offending was not extensive or that he was a person of good character and he has pleaded to guilty to criminal charges solely because he was advised by his counsel to do so. The information specifically regarding the applicant not informing the authorities about a change of address invites the Tribunal to consider whether he had taken his responsibilities seriously, while the information that the applicant investigated a flight out of Perth invited the Tribunal to consider the applicant sought to circumvent criminal prosecution or evade immigration detention as an unlawful non-citizen in the community in the event that his visa was cancelled. The information is also relevant because it indicated that the applicant had breached the visa condition imposed on his student visa which required him to work no more than 20 hours a week, indicating the applicant had been noncompliant with Australia’s migration law.
The letter further stated that, taken as a whole, this information is relevant to both assessing whether the grounds for cancellation were made out under s 116(1)(e)(i) and as to whether there are further reasons for considering whether this visa should remain cancelled. In addition, the letter stated that, subject to any comment the applicant provided in relation to these particulars, should the information outlined above be relied upon, it would be the reason, or part of the reason, for affirming the decision to cancel the visa.
Prior to and during the initial hearing, the applicant did not provide any written or oral comment to the adverse information. Consistent with earlier claims to the Department and in written submissions to the Tribunal, the applicant continued to deny the criminal charge against him. At the hearing he claimed he pleaded guilty to charges because his criminal lawyer stated he had an excellent defence. The applicant had also submitted various reference letters attesting to the applicant’s character as someone who would not commit an offence. The Tribunal enquired whether the applicant had been disqualified from driving taxi passengers after his suspension. He claimed he was only suspended but he would not be able to subsequently qualify. The applicant claimed the pending charge of deprivation of liberty was false.
At the resumed hearing, the Tribunal noted the recent submissions and the oral evidence had not directly addressed the validity of the non-disclosure certificate, the adverse information and its relevance as raised in the s 359A letter. The Tribunal reminded the applicant he would have a post hearing opportunity to address the matters raised in the s 359A letter and to do so by 18 March 2022. The applicant claimed he had not sighted the letter. The Tribunal informed the applicant it had been emailed on 2 February 2022 and he should contact his representative to access the correspondence before providing comment.
After the resumed hearing, the applicant submitted a number of submissions, which include some specific comments about adverse information. In particular, the applicant pointed out that he contacted an airline to leave Australia, but he could not do so as the authorities confiscated his passport as part of his bail conditions. This was outlined in the applicant’s statutory declaration dated 18 March 2022. The applicant’s statement did not claim the non-disclosure certificate was invalid.
The Tribunal is satisfied the non-disclosure certificate was validly issued and that the Tribunal had carried out its duties to put the adverse information to the applicant in accordance with s 359A.
Resumed hearing and s 359AA
After the initial hearing, the Tribunal received an email from a third party. It became apparent that a further hearing was required as the information provided by that third party would be relevant to the reason or part of the reason for the Tribunal affirming the decision to cancel this visa.
At the resumed hearing, the Tribunal put to the applicant that it had information provided to it by a third party in confidence and that the Tribunal would not be able to identify that party to the applicant. It did, however, explain the Tribunal was obliged to provide the gist of that information. The Tribunal outlined to the applicant that the information indicated that if the applicant’s visa was restored, he would continue to pose a risk to the community if in it. This was because it feared the applicant’s condition may have deteriorated over time and he may be likely to be less stable if in the community than when he first offended. The Tribunal explained the reasons the information was relevant, and that the applicant did not have to respond immediately.
The applicant responded during the hearing. He stated that he was not a higher risk than when the alleged offending occurred because he has been engaging with medical professionals about the right dose of medication suitable to him while in detention, that he will continue his appointments with medical professionals and that he will keep taking the medication. The applicant undertook to provide a further letter to support this from his medical professionals who are treating his Bipolar Type II condition.
The Tribunal also received two further medical letters from the applicant’s same consultant psychiatrist and general practitioner. Both dated 14 March 2022, the letters indicate that the applicant currently responds well to his current combination of medications with the support of his family and that he has insights about the need to remain on treatment. The Tribunal notes the general practitioner emphasised there is nil evidence of alcohol or drug abuse on regular blood testing and described him as not a risk to the community.
The Tribunal also notes that the applicant’s 18 March 2020 statutory declaration does not further address this adverse information.
At a certain point after the resumed hearing, the Tribunal received information that the third party subsequently withdrew the inference the presence of the applicant 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.
The Tribunal is satisfied that it had carried out its duties to put the adverse information to the applicant in accordance with s 359AA during the resumed hearing.
Given the informant’s retraction of the adverse information, the Tribunal is compelled not to place any weight on this information as relevant to the grounds for cancellation.
The applicant’s mental health
Since the applicant’s response to the NOICC, it has been advanced in this review that the applicant had been diagnosed with Bipolar Disorder II around six months before the alleged offending and that this was relevant to the grounds for cancellation. The applicant’s treating psychiatrist, Dr Sekhon, on 25 February 2021 wrote that he had been treating the applicant since 12 June 2020 after a referral for a psychiatric assessment from his general practitioner. He had one further appointment in September 2020 before the alleged offending. The psychiatrist found the applicant had previously and continued to suffer from Bipolar Affective Disorder Type II (Bipolar Type II) since his mid-teens, that there is a genetic predisposition to this condition with his family history and that he had sought psychiatric care since the age of 16 whereby he was treated with antidepressants and inconsistent follow-up care. Main symptoms include periods of depressed mood, along with periods of hypomania. When depressed, the applicant experiences a severe period of depression, anhedonia (lack of pleasure), amotivation, irritability and some suicidal ideation. When the applicant experiences an elevation of his mood, this is characterised by a period of approximately one to three days of persistent mood elevation, being driven or disorganised, risk taking behaviour, increased libido, need for minimal sleep, grandiosity, increased speech production, intrusiveness of personal space and worsening irritability. Following these periods of hypomania, there is a significant deterioration in his mood with the evolvement of suicidal thoughts.
As treatment, the applicant has a management plan inclusive of 3-4 monthly reviews with his consultant psychiatrists, regular reviews with his general practitioners, medications including mood stabilisers and antidepressants, and psychoeducation to utilise daily structure distraction techniques and to manage distress. The psychiatrist expressed his concerns that the applicant’s psychological health will significantly deteriorate should he be conveyed to an immigration detention centre with a view to deportation, with the evolvement of a depressive relapse of his condition and intense suicidal ideation.
The Tribunal also received two further medical letters from the applicant’s same consultant psychiatrist and general practitioner. Both dated 14 March 2022, the letters indicate that the applicant currently responds well to his current combination of medications with the support of his family and that he has insights about the need to remain on treatment. The Tribunal notes that both medical professionals emphasise that there is nil evidence of alcohol or drug abuse.
Leaving aside the inferences about the adverse impact of the cancellation of the visa, the applicant argued that the limited offending to which he had admitted was attributable to his diagnosed mental health condition and the incorrect treatment dosage. The applicant notes that the applicant’s brother mentioned that the applicant had been diagnosed with mental health problems since his adolescence. The Tribunal enquired of the applicant’s brother as to whether the applicant committed any offences during these years prior to departing to Australia.
Does the ground for cancellation exist?
Section 116(1)(e) - risk to Australian community or individual
A visa may be cancelled under s 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].
The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s 116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities, or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
The applicant, along with the witnesses, has consistently claimed the grounds for the cancellation of his visa under s 116(1)(e) did not exist.
At the time of the applicant’s cancellation of his student visa, the applicant had been charged or accused of the following while he was working as a licensed taxi and drive share driver: indecent assault of a woman; overcharging schedule fares; failure to operate fare meter; fraudulent use of passengers’ credit card; disorderly conduct as a driver; possible consumption of illicit substances; failure to stop after an accident; and demanding cash payments from passengers. At this time, the applicant was not convicted of any offending. However, the relevant department in Western Australia suspended the applicant’s licence to carry paying customers for taxis and drive share vehicles as he may have committed disqualification offences. The applicant argued the charges and allegations against him were untrue and noted that the court granted the applicant bail, indicating he was not a threat to the health and safety of the community.
The delegate concluded the applicant’s presence is or may pose a risk to the health and safety of the Australian community, or a segment of the Australian community, namely women and passengers of taxis and similar commercial vehicles.
Since that time, the applicant has been convicted of indecent assault and a drug offence involving the possession and selling of drugs not for personal use. The convictions came about as the applicant pleaded guilty. These pleas, according to the applicant, were entered to avoid more significant or severe penalties based on his legal counsel and not because he was guilty of the charges.
In regard to the sexual assault, the applicant claimed the alleged victim was motivated to seek compensation for the crime and she was not a reliable witness because she was from a poor area of Perth and she had only reported the allegation 24 hours later. In regard to the drug convictions, the applicant claimed that he was recorded on video returning drugs to a passenger who left them in the vehicle. The Tribunal asked the applicant whether he was going to appeal the decision, to which he responded it was his intention. The Tribunal relatedly enquired if any appeals had been lodged, to which he responded they had not.
However, the Tribunal cannot overlook the fact that the applicant has pleaded guilty to three offences and admits breaching at least one minor consumer law relating to passengers of taxi and ride share vehicles. The Tribunal is satisfied there is sufficient evidence that he had breached multiple other laws and regulations to protect paid customers of taxis as evidenced by the suspension of his licence by the Department of Transport.
It is impermissible in a decision for the Tribunal to impugn a conviction or to look behind a finding of guilt by a magistrate or judge within Australia’s legal system on which the decision was based.[2] The Tribunal accepts that the applicant was found guilty of committing a sexual offence, which constitutes the grounds for cancelling this visa: that is, the applicant’s presence in Australia is or may be or would or might be a risk to the health and safety of a segment of the Australian community, namely women.
[2] MIMA v SRT (1999) 91 FCR 234 at 25. The judgment concerned the deportation power in s 200, but the reasoning applies equally to those character grounds which are enlivened by a conviction. The relevant authorities are reviewed in HZCP v MIBP [2018] FCA 1803 at [41]–[95].
The Tribunal has also considered the evidence which appears to support the ground for cancellation that did not reach the level of conviction under a Commonwealth, State or Territory law. Where suspected criminal conduct may be relevant, but no conviction is necessary, then exercise of the relevant cancellation power should be treated as strong prima facie evidence of the facts upon which it is necessarily based.
In this regard, the Tribunal finds the recent Departmental decision to grant a bridging visa to the applicant, before this review application was close to being finalised, to be inexplicable. It places very little weight on the argument that the grant of the bridging visa undermines the finding that there were compelling reasons for cancelling the visa under s 116(1)(e).
In addition, the Tribunal does not accept that the applicant only pleaded guilty to three offences so as to avoid more severe sanctions from the courts, as advised by his legal representative. It finds the applicant’s pleas of guilty are recognition that the evidence against him was compelling and that he was responsible for the offending in a wilful and deliberate manner.
The relevant information in this regard is the extensive number of breaches recorded by the applicant’s former employer, which led to the suspension of his taxi/drive share driving licence and his reporting to the relevant State authority. In the context of the criminal offending involving selling drugs and his admission to defrauding a taxi passenger on at least one occasion, the Tribunal is satisfied that the applicant’s behaviour as a taxi driver involved deliberate and frequent commissions of acts to defraud passengers and use his licence to conduct the sale of controlled substances for a commercial reason.
The applicant admitted to only one allegation of wrongdoing, when he overcharged a passenger in the past.
He denied selling illicit drugs despite being convicted of this. However, the impact of the extensive and detailed list of allegations against the applicant has been to leave an impression on the Tribunal that his behaviour, which involved defrauding passengers and selling illicit drugs for profit, was wilful and predatory, as well as frequent. The list of allegations reflected taxi company recordings of the applicant engaging in over 50 disqualifying acts over just a few days. It has raised reasonable suspicions, in the context of the criminal convictions, that the applicant had been and continues to pose a threat to the health and safety of a segment of the Australian community, namely vulnerable women and consumers, pursuant to s 116(1)(e).
The Tribunal notes that the applicant and the witnesses have emphasised the applicant’s innocence on the basis he does not drink or take illicit drugs and his medical tests had not recorded that there was any alcohol in his system. This was enlivened by the detail in one of the statements that the applicant sipped some beer during the sexual offence incident. The applicant also argued the victim of the sexual offending was seeking monies through a victims of crime compensation scheme, that she was from a rough or disadvantaged part of Perth and that, as she delayed reporting her complaint, it lacked credibility. As explained in the hearing, the Tribunal cannot look behind the offending involving the sexual offence, and there has been no suggestion in the evidence that the applicant was intoxicated at the time of any offending.
The Tribunal notes that the applicant had another charge against him, involving the serious offence of depriving a person of her liberty, a female passenger, in a separate indecent pertaining to the conviction for sexual assault. This incident appears to be raised as one of the disqualifying behaviours identified by the relevant Department that led to suspension of the applicant’s licence. The criminal charge was dropped in early 2022. The Tribunal places no weight on that discontinued charge as to whether the grounds for cancellation are made out in this matter.
The Tribunal has also considered the argument that the applicant’s presence is not or may not or would not or may not represent a risk to the health, safety or good order of the community or a segment of it because the applicant lacked any culpability due to his mental health condition. The Tribunal accepts the applicant is a sufferer of Bipolar Type II. However, he has been aware of his behavioural difficulties since adolescence and he had been treated in Australia before the offending and wrongdoing, indicating he knew of his susceptibility to exuberant risk-taking. Moreover, he had supportive family members to assist him with these challenges. The Tribunal does not discount his mental health disorder as a factor in the offending and/or wrongdoing. However, the Tribunal does not accept the applicant suffered any significant or even notable diminished responsibility whereby he did not understand the wrongdoing or that he did not understand the wrongdoing carried penalties, or that he was unaware of impact of his mental illness on his behaviour. His commissions were not so impacted by his mental health disorder or undertaken in combination with inadequate medication to the extent that he acted involuntarily, although the Tribunal accepts his mental health rendered him more susceptible to making opportunistic and poor decisions at the time of the offending.

In addition, the Tribunal does not accept any of the offending or wrongdoing arose due to the applicant’s poor command of the English language when dealing with passengers, as advanced by the applicant and the witnesses. The applicant’s English was sufficiently competent to engage the public in identifying destinations and street signs, the charging of fares and other transactions. Wrongdoing towards vulnerable women and the defrauding of on-demand transport consumers are punishable acts and considered morally transgressive, even if the commission of such acts are more tolerated in his own country and there are fewer prosecutions for them there. They cannot be reasonably attributed to a lack of English competence.
The Tribunal’s findings about the ground for cancellation are also somewhat complicated by the fact that the Department both cancelled the applicant’s visa and detained him in immigration detention in 2021, and granted him a bridging visa which permitted him to be in the community while this matter is determined by the Tribunal. In granting the bridging visa, the Tribunal accepts that Department has undermined the grounds for cancellation of the visa under review. It accepts the delegate reached that decision in part because a more serious charge of deprivation of liberty was discontinued and because the medical evidence indicates the applicant’s accepted mental health problems were satisfactorily treated. However, the Tribunal is not bound to follow any of the reasons the delegate may have considered in granting this visa, which gave the applicant permission to be in the community. Accordingly, it places only a small amount of weight on this in the context of the overall evidence regarding the grounds for cancellation.
The cancellation power of s 116(1)(e) has a threshold test whereby decision makers are required to simply determine whether the visa holder’s presence in Australia ‘may be’ or ‘might be’ a risk to the community (rather than the criminal law standard of ‘beyond reasonable doubt’). This is also relevant in considering the applicant’s arguments regarding the grant of bail. The Tribunal notes the delegate’s argument in the decision record that a court that issues bail with attached conditions must determine that any proposed risk to the community can be minimised to an acceptable standard. When a court grants bail, it is not applying the same threshold test as that outlined in the Act under s 116(1)(e). Accordingly, the Tribunal places negligible weight on the applicant having been granted bail in determining whether or not the ground for cancellation had been made out in the first place.
In this matter, the NOICC indicates the applicant wilfully assaulted a woman and defrauded passengers of licensed taxi and drive share vehicles in a frequent and deliberate manner. Despite the applicant’s insistence to the contrary, and while accepting some mitigating circumstances, the overwhelming weight of the evidence is that 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 or a segment of it, namely vulnerable women and vulnerable consumers or passengers.
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
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’.
There was also evidence about a charge of deprivation of liberty. This charge was later dismissed for want of prosecution on 2 February 2022, as evidenced by recent submissions from the applicant’s criminal lawyer. The Tribunal accordingly places no weight on this matter when considering the circumstances in which the ground for cancellation arose or any other aspect of these below mentioned considerations. Similarly, given the informant’s retraction of the adverse information put to the applicant under s 359AA, the Tribunal is compelled not to place any weight on this information either in favour or against this visa remaining cancelled.
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
At the scheduled hearing, the applicant outlined to the Tribunal that he had visited Australia on a visitor visa with his wife to visit his brother, Virenderjeet Singh Buttar, in the middle of 2019, and they subsequently applied for a student visa based on the advice of his brother. The primary applicant for the student visa application was the applicant’s wife, while the applicant was the secondary visa holder. Granted on 24 October 2019, the visas were set to expire on 17 November 2021.
The purpose of this student visa was for the applicant’s spouse to enrol in and undertake full time studies in cookery and hospitality with an education provider in the State of Western Australia. The Tribunal has received a copy of a Diploma of Hospitality Management in cookery from the Empyrean Education Institute dated 17 September 2021.
The applicant stated he worked while his wife undertook the enrolled studies as a visa holder.
Having completed her studies, the applicant further explained that his spouse hopes to remain in Australia as a holder a temporary residence or graduate visa. The applicant went on to say that he wanted to become a permanent resident in Australia and later a citizen of Australia, as they planned to own their own business in Australia. When the Tribunal enquired what kind of business, the applicant vaguely responded ‘a family business’. Pressing the applicant for more details, he said a petrol station or a store of any kind.
The Tribunal enquired into the reasons the applicant’s spouse had not attended the first hearing. The applicant said his wife was aware of the hearing and was not feeling well but could join the hearing if required. At the end of a lengthy hearing, the Tribunal requested the applicant’s spouse to provide an updated statement. On 9 February 2022, a signed statement from the applicant’s spouse was received by the Tribunal. Dated 5 February 2022, the statement states the applicant and his wife married in February 2019, and that she remains in a committed married relationship with the applicant and that she is now undertaking an advanced diploma in commercial cookery. It further states the couple want to start living a normal life, and want her to finish her studies and gain work experience in Australia.
The spouse of the applicant took advantage of the resumed hearing by providing further oral evidence. She stated that she had completed her studies and her student visa had expired. The applicant’s spouse had applied for a temporary graduate visa, which she expected would be granted in the near future. She elaborated that it was her aim to seek permanent residency in Australia as a skilled visa holder and that the applicant would be granted such a visa as a secondary visa holder. She said the marriage between herself and the applicant had been consistently strong without separation. She was fully aware of his convictions but insisted he was not genuinely responsible for those offences, despite the applicant’s guilty pleas. She stated she trusted her husband and the account he provided to her. Both the applicant and his spouse did not want to be separated or have their pathways towards permanent residency in Australia spoilt.
On balance and with no evidence to the contrary, the Tribunal accepts that the applicant and his wife remain in Australia so that the primary visa holder (the applicant’s wife) can advance her studies on a full-time basis, gain work experience and pursue permanent residency in Australia. It accepts the role of the applicant was to support these goals as he was in a position to work.
While the applicant’s spouse was careful to outline her goals as gaining qualifications and work experience, the applicant explicitly stated the purpose of travelling to this country was to achieve Australian permanent residency and citizenship. He claimed another longer-term goal was to own and operate a family business, but he could not nominate a specific type of business, indicating he had not discussed it with his spouse. The applicant’s wife did not advance any mention of establishing a business in her oral or written claims.
Although it is open to the applicant and his spouse to pursue a pathway towards permanent residency or even citizenship, the purpose of student and graduate visas is to remain in Australia temporarily to improve educationally and to gain work experience and employability. They are not owed any guaranteed pathway to become long term residents in Australia. Pursuing a pathway towards permanent residency is not a compelling or urgent reason for the applicant to have this visa reinstated, either in itself or in the context of the applicant’s wrongdoing.
Accordingly, the Tribunal places some considerable weight in favour of the purpose of the applicant’s travel to Australia being to assist his wife in gaining a qualification. However, the Tribunal places little weight in favour of the couple’s determination to remain in Australia permanently as it is not a compelling reason to reinstate this visa.
The extent of compliance with visa conditions
The Tribunal notes that the delegate’s decision stated the applicant had been subject to visa conditions 8104 (work limitation), 8501 (maintain health insurance), 8516 (maintain eligibility to continue hold the visa) and 8201 (maximum 3-month study). The delegate stated there is some information to suggest the applicant failed to comply with condition 8104, but this has not been verified. Otherwise, the delegate had no evidence of non-compliance with any visa conditions.
During the hearing, the applicant was asked whether he had been working on a part-time or full-time basis. The applicant responded ‘part-time’, indicating he was compliant with condition 8104. Condition 8104 restricts most family members of primary student visa holders to a maximum of 40 hours’ work per fortnight while their course is in session. Additional hours are permitted when coursework is not in session. Family members of students who have commenced master’s by research or coursework or a doctorate degree are permitted to work unlimited hours once the course has commenced.
As part of its obligations under s 359A, the Tribunal put as part of the adverse information letter that there was an email suggesting the applicant had been working more than 20 hours a week when the Department of Transport investigated the applicant’s records as a taxi driver in late December 2020. The applicant’s brother provided an email in which he stated that the education provider where the applicant’s spouse had been enrolled had noted that the applicant had been working over the 40-hour limit per fortnight during a semester break. He claimed that he had an email stating this was permitted. The Tribunal has examined the email from the Empyrean Education Institute dated 10 December 2020. The email, while mentioning the dates for the semester break, does not mention anything about work rights for student visa holders. Nonetheless, the Tribunal accepts that the applicant was permitted to work more hours than condition 8104 permitted during this period, and that this had been scrutinised by the Department and no verification was required.
The Tribunal finds the specific adverse information in this regard would not be the reason or part of the reason for affirming this decision. There is no evidence that the applicant was non-compliant with any of the conditions imposed on him as a former secondary visa holder. The Tribunal places some weight in favour of the visa being reinstated based on his overall history of compliance with visa conditions in the past.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
dt the first hearing, the Tribunal enquired about the degree of hardship the applicant would face if this visa remained cancelled. The applicant responded that his family, being his wife and brother, live in Australia, and that separation from them would be distressing. The Tribunal pointed out that his parents reside in India so he would have some family support. The applicant understandably emphasised that separation from his wife would be very difficult for him, and his wife and brother have supported him while his bipolar disorder has been treated. The Tribunal asked if his wife would return to India with him, to which he responded that his wife would remain here and wait for permanent residency. The Tribunal asked if his wife would not return to assist him with his medication. The applicant insisted she would remain here and added his father will not be able to assist him as he is unwell. The Tribunal notes the applicant acknowledged that the medication he uses to treat his bipolar disorder would be accessible in his country of origin. The Tribunal enquired whether, if the applicant returned to India, his marriage would end. The applicant said he feared it would, but he did not want it to occur.

100. The Tribunal notes the applicant’s brother provided additional information about his father, claiming that he too had a bipolar disorder as well as heart problems. The brother claimed the applicant will receive better emotional support and medical treatment in Australia if his visa is not cancelled, than he would in India. The Tribunal notes the applicant did not deny services and medication were available in India.
101. The applicant also claimed that if he returned to India, his wife would struggle financially as he would not be in Australia working. He claimed his work in Australia assisted her with the cost of living and her tuition fees. The Tribunal enquired whether he was able to work. The applicant said his highest level of educational attainment was the Australian equivalent of year 12 and he has not acquired any trade or qualification. His work in India in the past included assisting his father on his farm. He speculated that as his father is ill, he may sell the farm.
102. At the resumed hearing, the applicant’s wife was provided an opportunity to outline the impact of the cancellation of the applicant’s visa on her. She relayed to the Tribunal that it was her ambition to gain permanent residency and for her husband to remain here with her.
103. Overall, the Tribunal accepts the applicant will face a substantial or an onerous amount of financial, emotional and psychological hardship when cumulatively considered. However, the Tribunal does not assess that these hardships could be reasonably characterised to be severe or significant. The applicant will be returning to India where he has some emotional support from his family, and he will be able to access the labour market in India to earn a living or to work on the applicant’s family farm. The Tribunal accepts that the emotional support available in India is no substitute for the support of his wife and brother, and the Tribunal accepts the pressure of separation on the applicant’s marriage to be seriously challenging. The Tribunal accepts that such a separation is also an emotional strain on the applicant’s wife and his conscientious and supportive brother. As mentioned below, the applicant will have the option of returning to Australia on another visa while his wife pursues permanent residency. The Tribunal also accepts the applicant will not be earning as much in India as he would be in Australia, if the applicant were to return to India, and this will contribute to the financial burden on himself and his wife. With regards to psychological support, it is accepted the mental health system in Australia is stronger and better able to support the applicant’s bipolar disorder. However, that lack of adequacy does not amount to the applicant facing a severe amount of psychological hardship as he will continue to be able to access counselling from professionals and suitable medication to treat his mental disorder. Overall, the Tribunal places a substantial amount of weight on these considerations, cumulatively considered, in favour of the visa under review being reinstated.
Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence
104. In submissions to the Department as part of the applicant’s response to the validly issued NOICC, it had been argued: that the charges of unlawful and indecent assault, in addition to other allegations while working in the capacity of a taxi driver between 22 December 2020 and 26 December 2020, were unproven; that the applicant was innocent; and the charges provided an insufficient basis for the visa to be cancelled under s 116(1)(e).
105. Subsequent to the cancellation of the applicant’s visa, he has been convicted of three offences.
106. Another limb of the evidence is that the applicant had his licence to carry passengers for ride share and taxi vehicles suspended by the relevant authority in Western Australia. The specific adverse information put to the applicant, which included details of the applicant’s multiple alleged breaches of consumer protection laws captured by a camera installed in a Swans Taxi, is directly relevant to the grounds for cancellation. Leaving aside the criminal offending to which he pleaded guilty, the applicant has only admitted to the breach of altering a meter, and has not admitted to other breaches related to on demand transport.
107. As outlined above, the applicant has argued that extenuating circumstances existed at the time the charges were issued in relation to the grounds for cancellation. As further outlined above, the Tribunal accepts the applicant is a sufferer of Bipolar Type II. However, it has already made findings that the applicant did not suffer any significant or even notable diminished responsibility whereby he did not understand the wrongdoing or that the wrongdoing carried penalties or that he was unaware of the impact of his mental illness on his behaviour. The Tribunal finds that the applicant’s mental health disorder does amount to an extenuating circumstance, but it was not beyond his control not to offending or breach other laws that made up the grounds for cancellation. The Tribunal places a notable amount of overall weight on his mental health condition as an extenuating circumstance in favour of the visa being reinstated.
108. In the context of the relevant findings above, the Tribunal further finds that the applicant did not have such a poor command of English that it meaningfully contributed to the offending. Wrongdoing towards vulnerable women and the defrauding of on-demand transport consumers are actions that are punishable and considered morally transgressive, even if such actions are more tolerated in the applicant’s own country, or there are fewer prosecutions for them there. They cannot be reasonably attributed to a lack of English competence.
Past and present behaviour of the visa holder towards the Department
109. The Tribunal notes that there were some challenges with the applicant updating his contact details and registering a new address at the time of the issuance of the NOICC. However, with the support of the applicant’s wife and brother, that short-lived issue was resolved in an orderly manner. The applicant appears to have been otherwise cooperative with the Department since holding a visa in Australia. There is no indication on file that the applicant was troublesome or uncooperative as a person when residing in immigration detention. Nor is there any evidence of the applicant causing difficulties when engaging with the Tribunal. The Tribunal accordingly places some favourable weight on this consideration in favour of the visa being reinstated.

Whether there would be consequential cancellations under s 140
110. At the time of the grant of this visa under review, the applicant was not the primary visa holder of the two student visas issued to him and his wife. The applicant does not have any dependent visa holders whose visas have been or would be cancelled under s 140 as a consequence of the cancellation of this visa. The Tribunal accordingly places no relevant weight on this either in favour or against the visa remaining cancelled.
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

If the visa remains cancelled, the visa holder may become an unlawful non-citizen. In such circumstances, his visa options would be subject to s 48 provisions, which would considerably limit those options. He risks being detained and forcibly removed from Australia under s 198 of the Act if he does not depart voluntarily. It is open to him to make arrangements to apply for a bridging visa to enable to appeal this decision, but there is no guarantee he will be granted the visa or successful on judicial review. The provisions of PIC 4013 would also prevent further offshore visas being granted to him for a period of up to three years from the date of cancellation.

112. When discussing these mandatory legal consequences, the applicant responded generally, stating that there would be an adverse impact upon his mental health and his marriage if he had to leave Australia while his spouse remained. It is, however, open to him to return to Australia, subject to PIC 4013 provisions, should this visa remain cancelled. This would mitigate the hardship and stress on his marriage as outlined above.
113. As discussed above, the Tribunal accepts there would be an adverse impact if the applicant returned to India and was separated from his spouse in Australia, and that this is a compelling reason for not having this visa cancelled. Given the applicant has few migration options to remain in Australia on a long term or permanent basis, 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
114. The applicant’s responses to the NOICC did not advance any international obligations being breached. The legal submission at the time stated that there is no evidence that any international obligations would be breached as a result of the visa cancellation.
115. During the hearing, the applicant said that he was not a person of interest to anyone in his country of nationality. Nor does the applicant have any children, so there is no need to consider whether the rights of any child are affected by any international protocols to which Australia is a signatory.
116. Given the applicant has not applied for a protection visa and does not claim to have any reasons he is owed Australia’s protection obligations, the Tribunal accordingly places negligible weight on this consideration in favour of the visa being reinstated.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
117. The class of visa under review is not a permanent visa, therefore the Tribunal places no relevant weight on this consideration either in favour or against the visa remaining cancelled.
Any other relevant matters
118. The Tribunal has considered the seriousness of the overall offending and wrongdoing which led to the applicant’s licence to carry passengers being suspended and that he would not qualify to be licensed in the future in the State of Western Australia.
119. As mentioned above, the Tribunal does not accept the applicant’s offending can be substantially attributed to his diagnosed mental disorder or to any treatments he was receiving at the time. At no stage has the applicant expressed any remorse for his behaviour to the victims. In this regard, the applicant’s offending, cumulatively considered, is serious.
120. The evidence of the applicant’s fraudulent and unethical behaviour while working with Swan Taxis was recorded and detailed as a result of an investigation. The gist of this fraudulent and other behaviour, amounting to dozens of breaches, was provided to the applicant for comment. The applicant did not provide a specific response to this. The information, which forms part of the reason for affirming the delegate’s cancellation decision, concisely outlines a pattern of deliberate, frequent and opportunistic misconduct by the applicant. His grasping behaviour cannot be reasonably explained by miscommunication or limitations regarding his English language capacity. Passengers of on demand transport are rightly protected by a range of licensing and consumer protection laws. The suspension and disqualification of the applicant from this industry strongly indicates that the applicant has breached the trust society places in licensed drivers, and this breach is of some gravity. Indeed, the Tribunal finds that the applicant’s behaviour can reasonably be characterised as predatory and avaricious. The Tribunal places considerable weight on this disregard towards passengers and the laws and regulations of Western Australia designed to protect them in favour of the visa remaining cancelled.
121. The seriousness of the applicant’s criminal offending has been considered. The combined offending, involving selling drugs and common assault, is not at the graver or weightier end of the spectrum of criminal behaviour. He has not been given community orders or been imprisoned. There is no evidence he had breached bail conditions while he has been in the community in the past. However, the offending, cumulatively considered, is not consistent with a person who respects women or the laws of this society pertaining to illicit drugs. The applicant has consistently denied any wrongdoing, although he pleaded guilty to the offending. As mentioned above, the Tribunal does not accept this.
122. The Tribunal also found it disturbing that the applicant sought to book a flight or flights soon after his sexual offence charge was laid. The applicant claimed that he was not able to leave the country as the authorities in Western Australian confiscated his passport. As discussed in the hearing, the Tribunal accepted this, but it was possible the applicant sought to move out of the State that was prosecuting him. Indeed, it is the Tribunal’s finding that the applicant did credibly seek to book flights to depart Western Australia to evade his responsibilities, as the investigation uncovered.
123. The parties have argued that the Tribunal take into account that the applicant and his family members have no criminal record back in India and that he is otherwise a person of good character. They have argued he has contributed to the community although there is no evidence, including oral evidence, to support this. They have also pointed to the applicant recently being granted a bridging visa to remain in the community while this visa is under merits review. They have pointed out that he is now better treated for his bipolar disorder with the result that his emotions are stabilised, and he has the support of his family, so he poses no or little risk of any future offending. The Tribunal places some weight on these developments in favour of the visa being reinstated.
124. The grounds for cancellation involved criminal convictions in the State of Western Australia related to the assault of a female passenger and the sale of illicit drugs that were not for personal use. Although he pleaded guilty to these charges, he has failed to convince the Tribunal such pleas were done solely on the advice of a legal counsel to avoid more serious sanction or what extenuating circumstances arising from an accepted mental health condition amount to being beyond his control. Furthermore, it is impermissible for the Tribunal to impugn the court’s convictions.
125. The Tribunal is not satisfied the applicant has expressed any meaningful remorse for his offending or for all but one of the minor allegations made against him. The Tribunal is not only satisfied the applicant’s presence may or might represent a risk to the health, safety and good order to a segment of the Australian community; it is also satisfied that he represents an looming and ongoing risk as the applicant has little respect for the laws of Australia designed to protect vulnerable persons. Where applicants lack remorse for wrongdoing against persons (as opposed to property), the Tribunal is reasonably invited to consider that such persons exhibit antisocial traits whereby they continue to pose an imminent risk to the health and safety of the community. In this case, the Tribunal considered the applicant’s criminal offending towards females, vulnerable or otherwise, his disregard for laws against illicit drugs and his behaviour towards vulnerable consumers who warrant protection against his avaricious predilections to be serious enough for the Tribunal to place significant weight on his visa not being reinstated.
Conclusion
126. The grounds for the cancellation of this visa under s 116(1)(e) had been made out as the Tribunal is satisfied that 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 or a segment of the Australian community.
127. For the reasons outlined above, the Tribunal has identified that a substantial degree of financial, emotional and psychological hardship will be faced by the applicant should this visa remain cancelled. The Tribunal accepts the applicant has few migration options and he is likely to be barred from returning to Australia for as many as three years, while his spouse remains here. It accepts these foreseeable circumstances complicate the applicant’s spouse’s plans to permanently migrate to Australia and adversely disturbs his marriage’s stability.
128. However, the Tribunal has emphasised the seriousness of the offending and wrongdoing, cumulatively considered, and the lack of remorse from the applicant in favour of the visa remaining cancelled over any of the countervailing factors in favour of the visa being reinstated.
129. For the reasons outlined above, the Tribunal assesses that those factors, cumulatively considered, in favour of the visa being reinstated have not outweighed those factors, cumulatively considered, in favour of the visa remaining cancelled.
130. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
131. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Brendan Darcy

Member

[2022] AATA 2165

18 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Charge

Consent

Statutory Construction