Singh (Migration)

[2022] AATA 5267

Singh (Migration) [2022] AATA 5267 (29 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Guneet Singh

REPRESENTATIVE:  Mr Mohammad Ahasan Ali (MARN: 0851085)

CASE NUMBER:  2202899

HOME AFFAIRS REFERENCE(S):          BCC2021/1532421

MEMBER:David McCulloch

DATE:29 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 29 August 2022 at 10:17am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – driving offences – consideration of discretion – litany of other traffic offences – poor study history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 February 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of India born in 1998. The visa that was cancelled was granted on 14 May 2020, expiring on 15 March 2024.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 10 December 2021. The applicant provided a response to the NOICC on 29 December 2021.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 4 August 2022 at 9.30 am to give evidence and present arguments. The applicant was represented in relation to the review. The representative attended the hearing.

6. 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

7. 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?

8. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth or 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)).

9. The delegate’s decision record and documents on the Department file indicate that, according to a report provided by the New South Wales Police, the applicant has been convicted of the following criminal offences: on 14 September 2021 at Sutherland Local Court for driving when visiting privileges withdrawn (first offence) – with a fine of $500 and 3 months’ disqualification; on 24 August 2021 at Blacktown Local Court for driving with middle range PCA (1^st off) – with a fine of $800, 3 months’ disqualification and 12 months’ participation in the alcohol interlock program.

10. In the hearing, the applicant acknowledged the convictions.

11. 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

12. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose; whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

13. The applicant provided the following in response to the NOICC on 29 December 2021 (not corrected for spelling or grammar):

    I am writing this letter to express my remorse and regret for my irresponsible and thoughtless actions. There is no excuse for my behaviour and I accept full responsibility for what I have done. I pleaded guilty on the first available opportunity to both offences accepting the facts of the matter. Driving on the NSW roads isn’t a right, it’s a privilege and we have to respect and abide by the law.

    Since the offences, I have been proactive and I have received assistance from my support person a community services employee Ms Shirinder Kaur, she has put strategies in place to educate and better my life. I’ve never had such support before and I am very thankful to her for it.

    These are the strategies that have been implemented:

    ·I will be completing the Traffic Offenders intervention program at the PCYC in the near future, Shirinder approached the PCYC after the offences I committed, however there aren’t-any face to face courses until further notice due to the Covid restrictions. Shirinder will be organising the enrolment once the courses commence.

    ·I’m in the process of installing a Mandatory Interlock program in my vehicle as per court order. The program will be for one year and the application is presently pending as it’s a lengthy process.

    My Personal Background:

    Firstly, I would like to state that I am from a conservative middle class family in India and my family invested money and aspirations for me to travel abroad to Australia to pursue a Higher Education, acquire life skills and settle in a successful career path suitable to my skill set.

    I arrived in Australia on a student visa in 2017, it was very difficult for me as I had never travelled abroad and never been separated from my family, moreover I had no relatives in Australia to support and guide me and I didn’t have a good social circle to show me the right path, however with time I assimilated to the the culture in Australia, and day by day my communication, and vocational skills are improving, hence please excuse any grammatical and punctuation mistakes in this email.

    In 2020, the covid outbreak affected Australia, especially the international Students as most of us were unemployed and weren’t eligible for any government assistance except through charities.

    I was affected by this pandemic and my family was contributing towards my college fees and living expenses as I had no employment and financial means to support myself independently, consequently I was depressed and isolated and this continued till the present time. Hesitantly, I informed my family about my offences and the letter I received from your department and they were very disappointed, however my father expressed his faith in me and encouraged me to follow the right path with all the support services in place.

    Lastly, I am sorry for my actions. I accept full responsibility for them, evidently I have made changes to my life as aforementioned and I am dedicated to my higher education and my academic transcript is a reflection of my dedication to my studies and my aim is to complete my studies and abide by the law and regulations in Australia.

    Thank you for taking the time and consideration with my matter.

14. In the hearing, the Tribunal asked the applicant to detail extenuating circumstances in relation to the convictions. In response, the applicant indicated that he takes full responsibility for the convictions which were his fault. They were a mistake. He is sorry and asked for a second chance.

15. According to the applicant’s New South Wales Police traffic record report on the Department file as of 6 October 2021, the applicant has the following events recorded:

    ·On 15 January 2019, the exemption to hold a NSW driver licence withdrawn on the grounds of a failed driving test. Learner license issued (Class C).

    ·On 28 April 2019, the learner licence was suspended until 27 July 2019. He was fined $263 for not complying with conditions of his learner licence (not displaying L sign) as required.

    ·On 13 July 2019, the applicant was driving while unlicensed and was fined $572.

    ·On 13 July 2019, the applicant was driving with one unrestrained passenger. He was fined $344.

    ·On 3 September 2019, the applicant lost demerit points for the offences of 13 July 2019 and 28 April 2019.

    ·On 24 June 2019, the applicant was driving in a T-way lane. He was fined $337.

    ·On 25 September 2020, the applicant parked his vehicle in a disabled parking space without authority. He was fined $581.

    ·On 4 November 2020, the applicant disobeyed left turn/right turn/no turn signs at an intersection. He was fined $272.

    ·On 4 May 2020, the applicant was driving while using a mobile phone when not permitted. He was fined $344.

    ·On 28 February 2020, the applicant was driving while using a mobile phone when not permitted. He was fined $344.

    ·On 4 June 2021, the applicant was driving with middle range concentration of alcohol.

    ·On 19 July 2021, the applicant’s NSW visiting driver privileges were withdrawn on the grounds of driving with middle range prescribed concentration of alcohol.

    ·On 24 August 2021, the matters of 4 June 2021 and 19 July 2021 were heard by the Blacktown Local Court. For the 4 June 2021 matter, he was fined $600 and disqualified from driving until 24 August 2026. He was also given a mandatory interlock order for 12 months, superseded by a further interlock offence. Minimum disqualification until 24 November 2021. For the 19 July 2021 matter, he was fined $800 and disqualified from driving until 24 August 2026. He was also given a mandatory interlock order for 12 months. Minimum disqualification for 3 months until 19 October 2021.

    ·On 30 July 2021, the applicant was driving while unlicensed. His matter was heard by the Sutherland Local Court on 14 September 2021. He was fined $500 and disqualified from driving for 3 months.

16. In the hearing, the Tribunal put to the applicant this information pursuant to the procedural requirements of s 359AA. The Tribunal noted that this information was relevant because it revealed a litany of traffic offences and penalties from April 2019 until the middle of 2021 demonstrating continual blatant disregard for traffic laws. The Tribunal put to the applicant that the consequence of relying on this information considered cumulatively together with the convictions determine that the applicant’s lack of respect for Australian law obviated his entitlement to the privilege of holding a student visa.

17. The Tribunal indicated that it would be taking into account the written response to the NOICC but giving the applicant a further opportunity to comment, particularly on the many driving infractions.

18. In response, the applicant indicated that he has significant fines of $15,000 or $20,000. He has paid about 30 percent of the fines. The applicant indicated that he is not driving until he installs an interlock device in his car which does not permit driving with a relevant blood alcohol reading. The applicant indicated that he is sorry.

19. The applicant’s representative indicated that it was wished that a written submission could be made after the hearing. A request was made to the Tribunal to provide details of the relevant infringements outlined in the hearing. The Tribunal subsequently provided to the applicant the relevant New South Wales Police driving record for the applicant.

20. In the written submission provided after the hearing on the applicant’s behalf, the following was submitted in relation to this issue. It was indicated that the applicant feels remorse and regret for his irresponsible and thoughtless actions. There is no excuse for his behaviour and he accepts full responsibility. However, consideration needs to be given to his lack of family support in Australia and the difficulties for the applicant in adapting to Australian culture, lost employment and in suffering from depression. The applicant pleaded guilty at first available opportunity to both offences in court, accepting the facts of the matter. Driving in New South Wales is not a right, it is a privilege, and the applicant has to respect and abide by the law.

21. It is submitted that since the offences, the applicant has been proactive and received guidance from his partner who has been supporting the applicant and implementing strategies to educate and improve his quality of life. He had never previously received such support. The applicant was ignorant of New South Wales road rules between 2019 and 2021 during the time of the offences as English is a second language. However, the applicant’s English has improved and he has a better understanding of the road traffic rules. COVID‑19 hit the applicant and other international students significantly and the applicant was not eligible for government assistance except through charities. It was difficult for the applicant to pay his college fees and living expenses as he had no employment and financial support. Consequently, he was depressed and isolated, which has continued. The most recent traffic offence committed in July 2021 was during the COVID-19 restrictions which was due to his financial status as he was experiencing severe hardship. However, ‘he was in no position to reduce his offence’.

22. The applicant has implemented strategies ordered by the court, including having an alcohol interlock inserted into his vehicle. The mandatory interlock program is applicable for one year. The applicant’s partner has approached the PCYC to register him for the Traffic Offenders Intervention Program which is an interactive course designed to challenge and engage participants in road safety. Confirmation is awaited as the course has a waitlist.

23. The applicant accepts responsibility but has made changes to his life as mentioned. His aim is to complete his studies and abide by the law.

24. The Tribunal considers the various submissions and explanations made seeking to ameliorate or justify the convictions and multiple driving offences. The Tribunal makes allowances for difficulties faced by international students in adjusting to a new life and culture. The Tribunal takes into account the difficulties encountered by the applicant, many because of COVID‑19. The Tribunal considers remedial actions being taken by the applicant, including the mandatory interlock program and seeking to engage with the PCYC traffic course.

25. The Tribunal has considered the explanation that the applicant’s multiple driving offences are a product of him not understanding road rules because of his poor English. The Tribunal is not satisfied of this. The Tribunal considers that it would have been very obvious to any reasonable driver that road rules were being violated in terms of the nature of the infringements considered cummulatively.

26. While taking the various explanations into account, the Tribunal is not satisfied that cumulatively considered the convictions and other driving offences are explicable due to extenuating circumstances beyond the applicant’s control. The Tribunal considers that the applicant has had an ongoing disregard for traffic laws, including obvious legal driving requirements.

27. The Tribunal considers the applicant’s study in Australia.

28. It is clear from government records setting out the applicant’s enrolment history in Australia that he has been enrolled in a number of courses from early 2017. In advance of the hearing, the Tribunal had written to the applicant requesting that he provide evidence of all courses completed and transcripts that would show units passed where courses have not been successfully completed. The applicant did not respond to this request.

29. The Tribunal discussed the applicant’s study history in the hearing. The applicant first studied a Diploma of Business in 2017 ending in November 2017. In the hearing, the applicant indicated that he successfully completed this course. The applicant subsequently studied a Diploma of Accounting from 7 May 2018 until 6 May 2019. In relation to this course, the applicant indicated that he passed eight units and failed two units and therefore did not successfully complete the course. Records then show that from 6 January 2020 until 31 December 2020, the applicant studied an Advanced Diploma of Business. In the hearing, the applicant did not recall details of studying this course. A Bachelor of Business (Professional Accounting) was started on 1 March 2021 and cancelled 13 March 2021 due to non‑payment of fees. The applicant indicated that this was because he was changing his course to an Advanced Diploma of Leadership and Management, which records indicate commenced on 19 April 2021. Records indicate that this course was cancelled on 5 January 2022 for unsatisfactory course progress. The applicant indicated that he was facing difficulties due to COVID-19, and as a result of family financial difficulties he did not make adequate progress. The Tribunal asked the applicant if he had passed any units in this course in the eight months he was studying it. The applicant indicated that he did not.

30. The Tribunal noted in the hearing to the applicant that his unimpressive study history, particularly in the most recent course studied, could be considered adverse to the applicant in considering discretionary factors as to whether the visa should be cancelled.

31. The Tribunal also noted that the applicant had ignored the Tribunal’s request that he provide evidence of courses and units passed in his study history in Australia. The Tribunal asked the applicant if he had seen this request. The applicant indicated that he was 50 percent aware but 50 percent not aware. The Tribunal indicated that it had difficulty accepting this response and asked if he was aware of the request or not. The applicant responded that he was not.

32. The Tribunal asked the applicant to provide this evidence after the Tribunal hearing. In response, the applicant provided evidence of the completion of the Diploma of Business and the passing of seven units in the Diploma of Accounting, with four units being determined as not yet competent.

1. The Tribunal in considering the applicant’s study history makes allowance for the impact of COVID‑19 and financial difficulties claimed to have been suffered by the applicant. In relation to the latter, while some allowance is made, international students in Australia need to ensure they have the financial resources to undertake study. Whilst some allowances are made for the various factors indicated, the Tribunal considers that the applicant’s study history demonstrates to a degree a lack of commitment.

2. The applicant’s poor study history in Australia is given some adverse weight, albeit only to a limited extent.

3. In terms of hardship to the applicant if the visa remains cancelled, the applicant indicated that he wishes to re-enrol in the Advanced Diploma of Leadership and Management. It would be a hardship in terms of his future career if he is not able to progress with these studies. His family have struggled for his education, and both the applicant and his family will be upset if the visa remains cancelled. The applicant also indicated that he is in a relationship in Australia with a British citizen, and there will be hardship due to the disruption to the relationship if the visa remains cancelled.

4. Albeit that the applicant does not have an overly impressive study history, including no units passed at all during the eight months that he studied the Advanced Diploma of Leadership and Management until the course was cancelled, the Tribunal is prepared to accept a degree of hardship to the applicant if he cannot continue with his study as he wishes to in Australia. The Tribunal accepts the distress and upset to the applicant and his family if he has to return to India, not making the progress that he and they would have wished the applicant to have made in Australia.

5. The Tribunal accepts the hardship to the applicant if the visa remains cancelled in terms of the disruption to his relationship in Australia with a British citizen.

6. The Tribunal accepts a further hardship to the applicant if the visa remains cancelled would be due to the limitations on his ability to apply for another visa onshore.

7. The Tribunal accepts that if the visa remains cancelled, the applicant could be an unlawful non‑citizen and subject to immigration detention. However, the Tribunal considers that the applicant would have the ability to apply for a bridging visa to make his status lawful while he makes arrangements to leave the country.

8. The applicant indicated in the hearing that no children in Australia would be affected by the cancellation.

9. The applicant indicated that on return to India, he potentially faces serious or significant harm because he is from an area near the border of Pakistan and there is potential for harm from Pakistan’s insurgency. The Tribunal asked the applicant if he has considered applying for a protection visa. He indicated that his main goal is to seek to reobtain his student visa. The Tribunal put to the applicant that he could live elsewhere in India. The applicant indicated that this would be difficult.

10. The Tribunal put to the applicant that the fact that there is the option in Australia to apply for a protection visa to facilitate protection from harm in India means that the potential harm that would be suffered by the applicant on return has not been an overly relevant discretionary factor in his favour.

11. On that basis, as there would be other places in India that the applicant could live, and as the Tribunal has doubts that he would not be able to relocate, the fact of the applicant claiming harm in India is not an overly relevant discretionary factor considered in favour of not cancelling the visa.

12. The Tribunal balances discretionary factors. The fact of the convictions and circumstances surrounding them are adverse to the applicant to a degree. However, convictions for driving are at the lower level of seriousness, in terms of potential offences and convictions. However, more detrimental to the applicant are the convictions combined with the litany of other traffic offences he has committed during his time in Australia. While individual traffic convictions and offences which are at the lower level of seriousness may well be outweighed by other matters in the applicant’s favour, the catalogue of convictions combined with driving offences of the applicant demonstrates continual and blatant disregard for Australian traffic laws. The Tribunal is not satisfied that there are extenuating circumstances beyond his control that cumulatively explain or justify the convictions and litany of other driving offences. This sets a high bar in terms of the Tribunal being satisfied that there are discretionary factors in his favour that would overcome the catalogue of driving offences and convictions.

13. As it is, the applicant has an unimpressive study record in Australia. The Tribunal accepts some hardships to the applicant as outlined if the visa remains cancelled, including in terms of not being able to progress with his desired study and the disappointment to himself and his family if he does not make the progress that was envisaged for him in Australia. The Tribunal accepts the hardship to the applicant in terms of the disruption to his current relationship with a British citizen.

14. Given the option of a protection visa, the Tribunal is not satisfied that the danger that the applicant feels in India in returning to his home area is an overly relevant discretionary factor.

15. Weighing discretionary factors, the matters adverse to the applicant outweigh by a significant margin matters considered in the applicant’s favour, including the hardship he would suffer if the visa remains cancelled.

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

    DECISION

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

    David McCulloch
    Member