Singh (Migration)

[2021] AATA 2218

Singh (Migration) [2021] AATA 2218 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maninder Singh

CASE NUMBER:  2102322

HOME AFFAIRS REFERENCE(S):          BCC2020/2727200

MEMBER:Shahyar Roushan

DATE:17 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 17 June 2021 at 5:13pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – criminal offences and convictions – discretion to cancel visa – visa, study and work history – application for review of refusal of employer nomination scheme visa not yet determined – bridging visa E granted and current in relation to that application – circumstances of offences – potential hardship if cancellation affirmed – support for parents in home country – decision under review affirmed

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a 32-year-old national of India. He first arrived in Australia on 25 September 2008 as a holder of a Student visa (Subclass 572). He was subsequently granted a second Student visa and a Temporary Work (Skilled) visa (Subclass 457). He departed and re-entered Australia on multiple occasions. He last entered Australia on 3 March 2019 as the holder of a Bridging visa B (Subclass 020). 

3. On 10 February 2016, the applicant applied for an Employer Nomination Scheme (ENS) visa (Subclass 186) and was granted a Bridging A visa (BVA) in connection with that application. The application was refused by the Department on 14 November 2019 and he is now awaiting the outcome of the review of that decision by this Tribunal (to be differently constituted).

4. On 17 February 2021, his Bridging visa was cancelled under s 116(1)(g) of the Migration Act after he was convicted of multiple criminal offences.

5. According to the delegate’s decision, the applicant has been charged and convicted of eight offences in NSW between January 2016 and August 2020, namely ‘affray’, ‘drive, license suspended under s 66 Fines Act – 1^st off’, ‘Driver or rider state false name or home address’ (convicted twice), ‘Drive, license suspended under s 66 Fines Act’ (convicted twice), ‘Driver motor vehicle during disqualification period’ and ‘possess unregistered firearm – prohibited firearm’.

6. The applicant is currently on a Bridging visa E, granted on 8 April 2021.

   Notice of Intention to Consider Cancellation

7. On 2 December 2020 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging visa under s 116(1)(g) and r. 2.43(1)(oa) on the basis of his convictions of offences against laws of the State of New South Wales. The NOICC listed each of the eight offences and the sentences received by the applicant.

   The applicant’s response

8. In a letter, dated 16 December 2020, the applicant responded to the NOICC, stating ‘I accept full responsibility for what I’ve done’.

9. The applicant stated that he came to Australia in 2008 to study hospitality. He was then sponsored as a cook on a subclass 457 visa and worked at a restaurant from 2009 until it shut down in December 2017. He stated that the restaurant shut down two weeks after he applied for permanent residency and that this had ruined his career and caused him to feel depressed. The applicant stated that he was wrongly advised by a consultant to go through the employer nomination scheme, rather than applying directly for permanent residency on the basis of his studies and work experience.

10. The applicant stated that he has never breached any visa conditions and has been living in Australia for the past twelve years. He claims that he does not know how to survive if he is returned to India, and that his wife will file a divorce because of his ‘bad deeds’. He stated that his parents are financially dependent on him as his father is retired and suffers from a disability, and his mother does not work. His father spent all his savings to send the applicant to Australia and he does not want to see his family in a ‘bad condition’. The applicant claims that the farmers in India are on strike against government acts and that it would be difficult for him to find other work. He fears for his health due to the COVID 19 outbreak in India and claims he will face social stigma and will be targeted by the local mob for extortion due to the appalling economic situation in India.

11. The applicant also provided explanations for each of his criminal offences. In relation to the offence committed on 5 August 2020 for possession of an illegal firearm, the applicant stated that the police had visited his home to find one of his housemates. During the visit, they found a toy plastic gun in the applicant’s bedroom. The applicant stated that the toy gun belonged to his housemate and he did not know that it was illegal to keep it in his room. The applicant stated that he was advised by his lawyer to plead guilty to receive a lighter sentence. 

12. In relation to the 2016 offence of affray, the applicant stated that he was not actually involved in the matter which occurred between his brother and his brother’s friend. He stated that he had already explained everything to immigration when the incident occurred in 2016.

13. The applicant stated that he was not aware of the traffic offences recorded on 9 December 2019.

14. In relation to the March 2020 traffic offence, the applicant stated that he drove a van without number plates because he was moving the van away from a neighbour’s property after they complained about where it was parked. He committed the traffic offence on 30 November 2019 when a van he had rented to another person broke down, and he decided to move it himself, despite the fact that his license had been suspended, as he did not have money to hire a tow car.

15. In relation to the 14 November 2019 traffic offence, the applicant stated that he was not aware that his license had been suspended because he could not afford to pay the fines. He stated that it was really hard to survive because he did not have a job and could not manage to pay his rent, buy groceries and cover other daily basic needs. He stated that he gave the police the wrong name and address because he was scared about the outcome as his license had already been suspended. He also stated that he is seeing a doctor for psychological treatment and wishes to become a ‘better person’.

16. The applicant stated that he did not commit any offences from 2008 to 2016 and that he studied and worked for nine years without any issues. He claims that he will not repeat any of the ‘silly mistakes’ and is now a ‘good person’. He goes to the temple every week and has started doing charity work. He does not want to be separated from his family in Australia including his older brother and two nieces who are Australian citizens.

17. The applicant also submitted the following additional documents:

    ·Undated statutory declaration, declared by the applicant, outlining the circumstances surrounding the affray offence. The applicant stated that his brother, Mr Mandeep Singh, worked as a driver at a company called Aussie Farmers, and his brother’s friend, Mr Vishal Sharma, was a contractor. He stated that there was a dispute between the men in relation to the wages as his brother had not been paid for several months. The applicant stated that the offence occurred when the applicant and his brother went to Mr Sharma’s home. Mr Sharma and his brother got into a fight, and the applicant claims that he tried to stop them and was hit by Mr Sharma. He retaliated in self-defence. The police were called, and Mr Sharma accused the applicant and his brother of attacking ‘without any reason’. The applicant was subsequently charged with Affray, fined $2000 and given a two-year good behaviour bond. He claims that he regrets his actions, had paid the fine, and will not repeat the same mistake.

    ·An extract from a New South Wales Police Facts Sheet, dated 12 January 2016, in relation to the affray offence. The Facts Sheet states that the applicant and his brother punched and kicked Mr Vishal Sharma in the face and upper and lower body. Mr Vishal Sharma retaliated by pushing the applicant. The applicant’s brother repeatedly kicked Mr Sharma, while the applicant punched him numerous times to the head and lower body.

    ·Copy of a Police Clearance certificate issued to the applicant by the Consulate General of India, Sydney on 11 February 2016 and certifying that there are no adverse records against the applicant in India.

    The delegate’s decision

18. On 17 February 2021, a delegate of the Department cancelled the applicant’s visa under section 116(1)(g) relying on prescribed grounds in Regulation 2.43(1)(oa) on the basis that the applicant has been convicted of an offence against a law of the state of New South Wales.

    Review application

19. On 25 February 2021, the applicant applied for a review of the delegate’s decision. He was represented in relation to the review by Mr Farhan Shakil, Registered Migration Agent.

20. The applicant appeared before the Tribunal on 16 June 2021 to give evidence and present arguments. He was assisted by an interpreter in the Punjabi and English languages. Mr Shakil also attended the hearing. Where relevant, the applicant’s evidence at the hearing is referred to in the Tribunal's reasons below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

22. 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(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

23. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(oa) is relevant.

    Reg 2.43 Grounds for cancellation of visa (Act, s116)

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

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

24. As already noted, the applicant has been convicted of multiple offences against the laws of NSW. At the hearing, the applicant confirmed that he has been convicted of the offences referred to above.

25. The Tribunal, therefore, finds that the applicant has been convicted of offences against laws of the State of NSW. The Tribunal is satisfied that the ground for cancellation under s.116(1)(g) and r.2.43(1)(oa) 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

26. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

27. The applicant told the Tribunal at the hearing that he came to Australia to study and to pursue a better life. He would like to remain in Australia because the laws and lifestyle in Australia are better. There are no jobs in India, and he would like to be able to support his parents.

28. In his response to the NOICC, the applicant stated that he came to Australia in 2008 to study hospitality. He was subsequently sponsored as a cook on a subclass 457 visa and worked at a restaurant from 2009 until it shut down in December 2017. In February 2016, he applied for an ENS visa, which was refused by the Department and he subsequently applied for a review of that decision. The Tribunal understands that the outcome of that review has not yet been determined. The Tribunal appreciates that the applicant would like to remain in Australia until at least the finalisation of the review process. He is currently on a BVE, awaiting a decision in relation to the review of the refusal of his ENS visa application.

29. The Tribunal gives this factor little weight against the visa being cancelled. 

    The extent of compliance with visa conditions

30. There are no visa conditions imposed on the applicant’s BVA. There was no evidence before the Tribunal to indicate that the applicant has not been compliant with the conditions of his previous visas. The Tribunal gives this factor little weight against the visa being cancelled. 

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

31. At the hearing, the applicant restated his desire to remain in Australia. He reiterated his evidence in relation to limited employment opportunities in India and referred to his parents’ circumstances. He stated that his father was the sole income earner and was paralysed in 1995 or 1996 as a result of a workplace accident. His brother is unable to support their parents because he has a young family and his own financial commitments in Australia. However, he also stated that his father had continued to work until 2011 when he retired. The applicant also claimed that his parents own a small agricultural land, but they are unable to hire anyone to work on the land as a result of the ongoing strike by farmers in India. The applicant was unable to persuasively explain why the strike has limited his parents’ ability to make use of their land. The Tribunal appreciates that the applicant’s parents have made a significant financial contribution towards his stay in Australia.

32. The Tribunal appreciates that the applicant has lived in Australia since 2008. He told the Tribunal that he is now used to Australia and it would be difficult for him to adjust to life back in India. The Tribunal also appreciates that he may face some challenges in entering the employment market in India should his visa be cancelled. However, he is relatively educated and skilled in the hospitality industry. He also told the Tribunal that his wife, who resides some of the time with his parents in India, is a qualified physiotherapist and she is currently working at a hospital in India. Contrary to his claim in his response to the NOICC that his wife will file a divorce because of his ‘bad deeds’, at the hearing he did not claim that his wife and her family have taken any such action.

33. The applicant claimed in his response to NOICC that he will face social stigma and will be targeted by the local mob for extortion due to the appalling economic situation in India. Again, he did not pursue these claims at the hearing and did not offer any further information. The Tribunal does not accept these speculations, which do not appear to be based on any persuasive evidence. Nor did the applicant, despite repeated opportunities offered to him at the hearing to speak about his family and to expand on his claims regarding hardship, pursue his claims in his response to NOICC that he did not wish to separate from his nieces in Australia or his pet dog.

34. In his response to the NOICC, the applicant had expressed fears for his health due to the COVID 19 outbreak in India. He did not pursue this claim at the hearing. However, the Tribunal appreciates his concerns in light of the spread of the virus in India.

35. As already noted, the applicant is currently on a BVE, which renders it unlikely that he would be forcibly removed to India as a consequence of the cancellation of his BVA.

36. The Tribunal gives this factor little weight against the visa being cancelled.

    Circumstances in which ground of cancellation arose

37. The ground for cancellation arises because the applicant has been convicted of a number of offences under the laws of the State of NSW. As outlined above, the applicant provided an explanation in relation to the offences in his response to NOICC. Whilst in his response the applicant stated that he accepted ‘full responsibility for what I’ve done’, in his explanations he either indicated that he was ignorant of the offences he was charged with (for example some of the traffic offences) or that the blame rested elsewhere. For example, in relation to his conviction for the affray offence, in an undated statutory declaration he claimed that he was initially a moderating participant in the scuffle between his brother and a third party and later he had assaulted the third party in self-defence. Similarly, in relation to his conviction for the offence of possessing an unregistered or prohibited firearm, he stated that the gel blaster was a just a broken plastic toy left in his room by his flatmate.

38. Whilst the Tribunal has taken into account the applicant’s explanations, as well as his expressions of remorse, it is mindful of the fact that he has been convicted of numerous offences which have given rise to the cancellation of his visa. The Tribunal gives this factor significant weight in favour of cancelling the visa. 

    Past and present behaviour of the visa holder towards the Department

39. The Tribunal accepts that there is no adverse information in relation to the applicant’s past and present behaviour towards the Department. The Tribunal gives this factor neutral weight. 

    Whether there would be consequential cancellations under s 140

40. There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations under s.140. The Tribunal gives this factor neutral weight. 

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

41. The applicant is currently on a BVE and the cancellation of his BVA would not result in him being unlawful and liable to detention. The delegate’s decision referred to the effect of s 48 of the Act, which would be to limit the applicant’s options so far as any further visa application is concerned, and Public Interest Criterion 4013 could prevent the grant of a further visa for three years. The Tribunal has considered these consequences, but it places little weight on this factor against the visa being cancelled.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

42. The Tribunal accepts that, generally, it is in the best interests of children to continue to remain with their family, particularly with their parents. The applicant told the Tribunal that he resides with his brother and a friend. His brother’s mother-in-law has certain health issues and his brother’s wife stays with his brother three or four days a week. As noted earlier, in his response to the NOICC, the applicant had stated that he did not wish to be separated from his young nieces. At the hearing he did not pursue this claim and did not offer any other information in relation to the nature of his relationship with his nieces and how their best interests may be impacted by the cancellation of his visa. Nevertheless, the Tribunal is prepared to accept that the applicant has a certain close relationship with his nieces and that the cancellation of the visa, if it were to result in his removal from Australia, may have some adverse impact on their best interests. However, as already noted, the applicant currently holds a BVE and is awaiting the outcome of the review of his ENS visa refusal. The cancellation of the applicant’s BVA will not result in his removal and separation from his nieces. Therefore, the cancellation of the applicant’s BVA would not have an adverse impact on their best interests.

1. The applicant did not present any claims or evidence to suggest that the cancellation of his visa may result in Australia being in breach of any of its non-refoulement obligations generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

2. The Tribunal finds that there are no obligations under relevant international agreements which will be breached if the applicant’s visa is cancelled. The Tribunal gives this factor no weight.

   Any other relevant matters

3. The Tribunal has considered the applicant’s circumstances. The applicant has been convicted of multiple offences against the laws of NSW and the Tribunal has found there are grounds for cancelling his visa. The Tribunal has considered all the relevant factors, including the best interests of the applicant’s nieces. However, the Tribunal has formed the view that there are very strong considerations weighing in favour of cancelling the visa, including the applicant’s numerous convictions. Accordingly, having regard to all the relevant circumstances, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   Shahyar Roushan
   Senior Member