Singh (Migration)

[2020] AATA 3172

Singh (Migration) [2020] AATA 3172 (16 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasprit Singh

CASE NUMBER:  2004478

HOME AFFAIRS REFERENCE(S):          BCC2019/4878389

MEMBER:Ann Duffield

DATE:16 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 16 June 2020 at 1.55pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) –applicant convicted of offences – spent conviction and community corrections order – guilty plea – support for wife in her continuing studies – separation from wife and child – wife’s visa to cease soon – applicant unemployed – consideration of child’s best interests – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 February 2020 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of offences related to domestic violence which resulted in him getting a spent conviction and a community corrections order. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal via video-conference on 15 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

   BACKGROUND

5. The applicant provided the tribunal with a copy of the delegate’s decision along with his application for review.

6. The applicant is a citizen of India born on 4 January 1993 (27 years old).

7. The applicant arrived in Australia as a dependent on his wife’s student visa on 23 June 2018. He has not departed Australia since that date, however his wife travelled and lived overseas for a period of three and a half continuous months from 29 January 2019 until 19 May 2019. The applicant did not travel with her.

   CRIMINAL CONVICTIONS

8. On 9 October 2019 the applicant was convicted on several domestic violence related incidents and sentenced to a Community Based Order for 10 months which is due to expire on 8 August 2020. The applicant was also convicted of a further offence being criminal damage and imposed a fine of $500 in addition to a Community Based Order. This matter came to the attention of the Department of Home Affairs and on 12 December 2019 the department wrote to the applicant notifying him that they were considering cancelling his visa. The applicant replied to that notification and request for comments on 7 January 2020.

9. The applicant admitted that he pleaded guilty to domestic violence charges and indicated that he intended to mend his ways. He admitted that the incidents of the night in question were his fault but only because he was depressed and could not control himself. He states that he has quit alcohol and smoking and wants to improve his behaviour and relationship with his wife and family, especially his daughter. He says that he has attended counselling and has provided evidence that he has attended three sessions.

10. The applicant also provided two identical letters allegedly from his wife supporting his release and stating that she wanted him to come home and for them to live together.  The letters appear to be in the same handwriting as the letter he has signed. One of the letters allegedly from his wife is not signed. In the interests of completeness however the letters state that the applicant was guilty of domestic violence and he is now at counselling and changing his behaviour and wants to improve his relationship with her. The letter states that the applicant’s daughter is currently residing in India with his parents and she wants the applicant to come back and live with her and her daughter as a family.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s.116(1)(g) - prescribed ground

12. 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(1)(oa) is relevant.

13. Regulation 2.43(1)(oa) applies to the visa holder’s circumstances, as he holds a temporary visa other than a subclass 050, 051 or 444 visa and has been convicted of an offence against a law of the Commonwealth, State or Territory.

14. On 9 October 2019 the applicant was convicted on several domestic violence related incidents and sentenced to a Community Based Order for 10 months which is due to expire on 8 August 2020. The applicant was also convicted of a further offence being criminal damage and imposed a fine of $500 in addition to a Community Based Order. The applicant has admitted this and his guilt in relation to the offences.

15. At the hearing the applicant said that a third party made the complaint as he and his wife did not report the matter. He claimed he was arrested and released on bail on a restraining order and pleaded guilty. He claimed he was going through depression at the time as he had lost his job. He told the Tribunal that he was convicted and sentenced to a community based order for ten months.

    Consideration of discretion / conclusions

16. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. 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’. In particular, the Tribunal has considered the following matters:

    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

18. The applicant told the Tribunal that he needed to remain in Australia to be with his wife and child to support her in her continuing studies.

19. The applicant arrived in Australia as a dependent on his wife’s student visa on 23 June 2018 along with his daughter. He has not departed Australia since that date, however his wife travelled and lived overseas for a period of three and a half continuous months from 29 January 2019 until 19 May 2019. During this trip the applicant’s wife took their daughter back to India. The applicant did not travel with her and told the Tribunal that he could not go because he was working. The Tribunal asked the applicant why his daughter had been returned to India and he claimed that it was easier for her to stay there because his wife was studying, and he was working.

20. The applicant told the Tribunal that the domestic violence incidents occurred in around August and September, but he could not be specific. The Tribunal asked him where he lived during the period since the domestic violence incidents and his detention in the beginning of May and he claimed that he was staying with a friend.

21. The Tribunal asked him why he didn’t live with his wife and he said that there was a restraining order for a period but after it was lifted, they went out to dinner together sometimes and still talked. When asked again why he wasn’t living with his wife since he was claiming that he needed his visa reinstated so that he could live with her and his daughter as a family the applicant replied that he was staying with a friend.

22. The Tribunal asked the applicant when his wife’s student visa was due to expire, and he replied that it was due to expire in July. The Tribunal put to the applicant that since it was a temporary visa it could see no reason why they couldn’t both travel back to India together and be reunited with their daughter. The applicant told the Tribunal that they wanted to stay in Australia as there were more opportunities for them here and the education system was better. He claims his wife is in the process of applying for a further visa and she was waiting for her degree from her present college before she could submit all the necessary paperwork.

23. The Tribunal put to the applicant its view that the two handwritten letters allegedly signed by himself and his wife appeared to be the same handwriting. The Tribunal asked him who wrote the letters and he said that his wife wrote them both. The Tribunal put to the applicant that those letters were written in January and asked if his wife or himself had more recent statements to make and he replied that he didn’t think that he needed to provide updated statements. The Tribunal asked the applicant why his wife was not included as a witness at the hearing and he again replied that he didn’t think she needed to be there.

24. The Tribunal put to the applicant that he has not been living with his wife since he perpetrated domestic violence towards her in around August or September 2019 and his daughter has been residing in India with his parents since January 2019. The Tribunal put to the applicant that his wife’s visa ceases next month and in the Tribunal’s mind it appears that, if they wish to be together as a family as he claims, they can do so in India. The Tribunal also put to the applicant that he has been unemployed for the most part and therefore he was unable to provide the financial support he has said that his wife and daughter need. He told the Tribuanl that his family had been supporting them financially and would continue to do so. The Tribunal put to the applicant that he, his wife and daughter have not lived together as a family for eighteen months and in the Tribunal’s mind, the applicant’s reason for wanting to remain in Australia was therefore not compelling. The applicant said he wanted to live with his family in Australia.

25. The Tribunal gives no weight in favour of the applicant in regard to the reasons he has put forward for having a compelling need to remain in Australia.

    the extent of compliance with visa conditions

26. There is no evidence before the Tribunal that the applicant has not complied with any of his visa conditions. However the tribunal does note that the applicant does not appear to have informed the department of his charges and conviction or that he had moved out of the family home.

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

27. The applicant has provided the Tribunal with an undated, signed letter stating that he wants one last chance to prove himself and that he promises he will never do anything wrong again. He realises his mistakes and is really sorry and wants to give his wife and daughter the good life that they deserve. He wants one last opportunity to stay here with his wife.

28. The applicant has also provided copies of two identical letters allegedly written by his wife. One is undated and unsigned and the other is signed but not dated.  However it appears that both letters were written in the same handwriting as the letter that the applicant has signed raising the question as to whether the applicant’s wife and victim of his violence wrote the letters at all. When the Tribunal raised this with the applicant at the hearing, he said that his wife had written both the letters. He provided no additional evidence to support this claim.

29. If the Tribunal accepts that the applicant’s wife still wants the marriage to continue and not be separated from the applicant, the Tribunal has gone on to consider the family unit. The Tribunal notes that the applicant’s wife is on a temporary visa which is due to cease when she completes her studies in July 2020. The applicant has said that his wife wishes to renew her visa and remain in Australia, however the Tribunal has no other evidence to support that claim.  The Tribunal put to the applicant that no such hardship would arise if they both returned to India where her daughter currently resides. The applicant said they wanted to stay in Australia.

30. The Tribunal asked the applicant how they had been financially supported since he had not been working and he told the Tribunal that his family had been supporting them and would continue to do so.

31. The Tribunal does not believe that there will be any additional hardship, psychological, emotional or otherwise that will affect the family unit or the individuals in it, if the applicant’s visa is cancelled.

    circumstances in which ground of cancellation arose

32. The Tribunal asked the applicant about the circumstances in which the ground for cancellation of his visa arose. The applicant states that he was depressed at the time and didn’t have control of himself. He claims to have stopped drinking and smoking and has been attending counselling in order that he can become a better husband and father.

33. The Tribunal does not accept that there were any circumstances beyond the applicant’s control for the violence against his wife. The Tribunal notes in this regard the letters allegedly written by the applicant’s wife. Even if the Tribunal accepts that she signed one of them they were both clearly written by the same person and the Tribunal cannot be certain who that person was. In any case, the applicant had an opportunity to provide additional statements prior to the hearing or to invite his wife to attend the hearing to provide support. He claims that he didn’t know he could do that however it seems to the Tribunal that if the applicant’s wife was genuine in her continuing support for the applicant and his remaining in Australia with her, both parties would have at least made enquiries as to what other actions they could have taken.

34. The Tribunal is not satisfied that the circumstances in which the grounds for cancellation arose were beyond the control of the applicant.

    past and present behaviour of the visa holder towards the department

35. There is no evidence before the Tribunal that the applicant has not behaved appropriately in his dealings with the department. However the tribunal does note that the applicant does not appear to have informed the department of his charges and conviction or that he had moved out of the family home.

    whether there would be consequential cancellations under s.140

36. This is not relevant in the present case.

37. 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

38. The Tribunal accepts that cancelling the applicant’s visa would result in the following legal consequences:

    · The visa holder will become an unlawful non-citizen and will be liable for immigration detention under Section 189 and subject to removal under Section 198 of the Act.

    · Should his visa be cancelled, he will be subject to section 48 of the Act, he will be restricted in what further visa applications he may be able to lodge while he remains in Australia

    · He may be unable to meet Public Interest Criterion (PIC) 4013 in relation to being granted any temporary visas he may lodge for a period of three years from the date of the cancellation. 

39. Since these are the intended consequences of cancellation, the Tribunal does not give these considerations any weight in favour of the applicant.

    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

40. The applicant’s child resides in India with her grandparents. When the Tribunal asked if the applicant wanted to make a submission that it were in the best interests of his child that he remain in Australia he said that she had better opportunities here. The applicant’s daughter however has been living in India for some eighteen months without any concern expressed by the applicant. The Tribunal is not satisfied that the best interests of the applicant’s child would be breached as a result of the cancellation.

41. The Tribunal asked the applicant if he feared persecution should he return to India for any reason and he claimed that he had no such fear.  The Tribunal is satisfied that no international obligations would be breached as a result of the cancellation of the applicant’s visa.

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

43. The applicant is in Australia on a temporary visa. The applicant told the Tribunal that he has not developed any strong work, business or community ties such that the Tribunal would be moved to not cancel the visa. The applicant stated that his wife was in Australia and he wanted to stay with her. He has a friend that has always supported him.

    any other relevant matters

44. The Tribunal does find any other relevant matters to consider.

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

    DECISION

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

    Ann Duffield
    Senior Member