Sukhwinder Singh (Migration)

[2021] AATA 2341

Sukhwinder Singh (Migration) [2021] AATA 2341 (7 April 2021)

1. DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Mr Sukhwinder Singh

   CASE NUMBER:  2101955

   HOME AFFAIRS REFERENCE(S):          BCC2021/334740

   MEMBER:Kira Raif

   DATE:7 April 2021

   PLACE OF DECISION:  Sydney

   DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

   Statement made on 07 April 2021 at 1:08pm

   CATCHWORDS
   MIGRATION – Cancellation – Partner (Provisional) (Class UF) visa - subclass 309 – in possession of a phone which contained objectionable material – applicant had not been charged with any offence – no control over the recording of the allegedly offensive content on iPhone – genuine and committed relationship with sponsor – decision under review set aside

   LEGISLATION
   Customs (Prohibited Imports) Regulations 1956, r. 4A(1A)(b)
   Migration Act 1958, s 116

   STATEMENT OF DECISION AND REASONS

   Application for review

2. 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 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

3. The applicant is a national of India, born in April 1995. He was granted the Provisional Spouse visa on 3 December 2020. On 28 January 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling his visa under s. 116(1)(g) of the Act and r. 2.43(1)(t). The applicant provided his response to the NOICC and his visa was cancelled on 17 February 2021. The applicant seeks review of the delegate’s decision.

4. 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 7 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

6. 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.

7. 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)(t) is relevant.

8. Relevantly, r. 2.43(1)(t) provides the following:

   in the case of the holder of a temporary visa—that the Minister reasonably believes that the visa holder:

   (i)has imported goods to which regulation 4A of the Customs (Prohibited Imports)Regulations 1956 applies; and

   (ii)has not been granted a permission under subregulation 4A(2) of those Regulations to import the goods.

9. Section 4A(1A) of the Customs (Prohibited Imports)Regulations 1956 relevantly states

   This regulation applies to publications and any other goods, that:

   (a)describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported, or

   (b)describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who appears to be, a child under 18 (whether the person is engaged in sexual activity or not)

   Does the ground for cancellation exist?

10. The primary decision record, a copy of which the applicant provided to the Tribunal, indicates that the applicant had been granted the Provisional Spouse Subclass 309 visa on 3 December 2020. It is stated that the applicant entered Brisbane International Airport on 7 January 2021. An examination of the applicant’s mobile phone, which was in his possession, revealed that the phone contained videos containing sexually explicit and objectionable content involving children who appeared to be under the age of 18 years. The videos were assessed by the ABF officer as being goods to which r. 4A(1A)(b) of the Customs (Prohibited Imports) Regulations 1956 applied.

11. In his response to the NOICC the applicant states that he used to have another phone, which broke in November 2020 and his wife gave him the phone in question in which he used his own SIM. The applicant states that he used the phone mainly to access Facebook and WhatsApp groups with religious content, which was created by his friend, and he was not familiar with the objectionable content on the phone and was not sufficiently familiar with the operations of the phone to look at its content. The applicant states that his brother had access to the phone to watch videos  and he could not supervise his brother’s usage of the phone and the phone had also been used by other friends and family. The applicant states that he only used the phone for a short time and did not have time change the SIM before entering Australia. The applicant states that he watched publicly available videos which are streamed on mainstream TV in India, which include episodes concerning crimes against children and which may have contained what has been identified as objectionable content and he was not aware that his phone had the objectionable content until he was issued with the NOICC. The applicant states the content was not his and he did not have enough time to look at the content of the phone.

12. In his response to the NOICC the applicant provided a statement from his spouse, Ms Mani, who states that the phone was given to her by her ex-husband 5-6 years ago and she is the owner of the phone. She states that her ex-husband also had access to the phone. She states that other family members used the phone and it is highly unlikely that the applicant was aware of any illegal content on the phone. The applicant included a statement from his brother which also refers to his use of the phone. On 6 April 2021 the applicant provided a further affidavit from his brother who states that the phone was used by many people before it was given to the applicant and that he himself played games on the phone and allowed other sites to be opened.

13. In oral evidence, the applicant stated that he had a different phone when he entered Australia and the iPhone was just an extra phone which they carried. The applicant states that he had never used that phone because there was no internet connection and his data had expired. He only used that phone for under two months once his own phone had broken. The applicant states that he only used that phone to make calls and he did not use it to access any sites or watch anything. The Tribunal is mindful that the applicant’s evidence in response to the NOICC was quite different as the applicant stated that he used the phone to watch videos, an activity the applicant denied in his evidence to the Tribunal.

14. The applicant initially told the Tribunal that he only used the phone to make and receive calls and nothing else. He expressly stated he did not watch videos. When the Tribunal noted that his response to the NOICC was different, the applicant’s evidence changed and he agreed that he also watched videos on the phone. The applicant then said that he never used the phone to access any sites, which also contradicts the information given in his wife’s declaration which the applicant presented in response to the NOICC where she refers to the applicant accessing Facebook on that phone. The Tribunal has formed the view that the applicant has not been truthful in the description of his use of the phone, firstly because his evidence to the Tribunal different to the information provided in response  to the NOICC and, secondly because his evidence to the Tribunal changed when such inconsistencies were put to him. The Tribunal has formed the view that  the applicant created answers which he thought would best suit his circumstances. Nevertheless, the Tribunal acknowledges that it is possible that the phone was used by others. The applicant’s evidence is that he worked long hours and that the phone password was known by his brother and others who used the phone to play games. The Tribunal accepts that evidence. However, the Tribunal is mindful that the issue here is not the downloading of the objectionable material but the importation of the material into Australia.

15. The representative submits that there must be a mental element to the offence and in this case the applicant had no knowledge of the objectionable material on his phone. The Tribunal acknowledges that when prosecuting a criminal offence, the mens rea may need to be established but the Tribunal does not consider this to be the case when dealing with the cancellation of a visa under s. 116. Regulation 2.43 refers simply to the material being imported and, significantly there must be a reasonably belief that the material was imported. It is not necessary to establish that the applicant did import the objectionable material and in the Tribunal’s view, it is not necessary to establish that the applicant was aware of the existence of that material on his phone for the ground for cancellation to arise.

16. The delegate noted that the phone was in the applicant’s possession upon entry to Australia and the objectionable content was located on that phone, therefore it can be said that the applicant had imported that content and had not been granted permission to do so. The Tribunal also finds that  the applicant was the owner of the phone at the time of his entry to Australia, whether or not he used it much and whether others had access to it, and the phone was in the applicant’s possession at the time of his entry to Australia. Therefore, it can be said that the material on that phone was imported by the applicant.

17. The Tribunal finds that the applicant was a holder of the subclass 309 visa, which is a temporary visa. The Tribunal finds, having regard to the information in the primary decision record, that the phone which was in the applicant’s possession, contained publication that depicted or otherwise dealt with the mater of sex, cruelty and violence in a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported. The Tribunal finds that the images on the phone were of a nature to which Section 4A(1A) of the Customs (Prohibited Imports)Regulations 1956 applies.

18. The Tribunal acknowledges the applicant’s evidence that the phone was used by many others and that he did not access or download the objectionable material but simply did not have the time or the skills to check. However, as the phone was in the applicant’s possession, and belonged to the applicant at the time of his entry to Australia, the Tribunal is of the view that can give rise to a reasonable belief, for the purpose of r. 2.43(1)(t), that the applicant had imported the material. That is, the Tribunal reasonably believes the applicant had imported goods to which regulation 4A of the Customs (Prohibited Imports)Regulations 1956 applies. There is no evidence that the applicant had been granted permission to import the goods. The Tribunal finds that r. 2.43(1)(t) applies and that there are grounds for cancelling the visa under s. 116(1)(g) of the Act.

    Consideration of discretion

19. 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

20. In his submission of 31 March 2021, the applicant states that the purpose of his travel to and stay in Australia is to be with his partner, who is an Australian citizen. The applicant’s evidence is that he and Ms Mani continue to be in a genuine and committed relationship. In oral evidence to the Tribunal the applicant described his relationship with his partner. The Tribunal accepts that the applicant is able to fulfil the purpose of the visa by maintaining the relationship with his partner. The Tribunal also accepts that the presence of his partner family in Australia may constitute a compelling need for the applicant to remain in Australia.

21. In his written submission to the Tribunal the applicant referred to another Tribunal decision in which the presence of the family in Australia was found to be compelling. The Tribunal considers such evidence unhelpful as it is for this Tribunal to determine what weight to give to each factor and such findings cannot have any precedential value. Similarly, the applicant refers to another Tribunal decision with respect to the weight given to other factors and for the same reason, the Tribunal finds such references unhelpful.  

    The extent of compliance with visa conditions

22. There is no evidence of any non-compliance with visa conditions.

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

23. In his response to the NOICC the applicant, as well as his partner, refer to a close bond between them and the support they provide to each other. Ms Mani stated in her declaration that the applicant supported her through the divorce and has a good relationship with her. The applicant and his partner submit that the cancellation of the visa would adversely impact the sponsor’s mental health. In oral evidence the applicant told the Tribunal that when going through her divorce, his wife became depressed and he is concerned that she may be depressed if his visa is cancelled. The applicant told the Tribunal that his wife has seen doctors but he did not know what treatment she was receiving. The Tribunal has formed the view that the applicant has little knowledge about his wife’s health condition and in the absence of probative medical evidence the Tribunal is not satisfied the applicant’s spouse would suffer from depression if the applicant’s visa is cancelled.

24. The applicant’s partner told the Tribunal that she had been diagnosed with depression during her divorce and she has been prescribed medication, which she continues to take. Ms Mani told the Tribunal that if the visa is cancelled, she may again experience depression because of the problems with the children, as well as with the husband.

25. The Tribunal accepts that the cancellation of the visa may result in the applicant’s separation from his partner or their relocation to India and Ms Mani’s evidence is that she may leave Australia with her husband but that would mean being away from her children, who live with their father.

    Circumstances in which ground of cancellation arose

26. The ground for cancellation arises because the Tribunal formed the view that the applicant had imported material to which s. 4A(1A) of the Customs (Prohibited Imports)Regulations 1956 applies and he had not been given permission to do so.

27. In his submission to the Tribunal of 31 March 2021 the applicant states that he had no control over the recording of the allegedly offensive content on his iPhone. The applicant notes that numerous other individuals had access to the phone and he was not responsible for the images being uploaded on the phone. The applicant states that he only assumed possession of the phone just before he left for Australia. The applicant states that no charges have been laid against him and any alleged offences remain unproven and no findings have been made against him.

28. As noted above, the Tribunal accepts that others may have had access to the phone. The Tribunal acknowledges that it is possible that the applicant was not involved in the downloading of the objectionable material and that he had no knowledge of it. The Tribunal makes no finding on these issues.

    Past and present behaviour of the visa holder towards the department

29. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

30. There are no persons who would be subject to consequential cancellation.

    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

31. If the visa is cancelled, and unless the applicant is granted another visa, the applicant would become an unlawful non-citizen and may be detained and removed from Australia. There is nothing to suggest the applicant would be detained indefinitely. The applicant may make an application for another visa in Australia but would have limited options to do so. An application for a visa offshore may be subject to an exclusion period. If the applicant is not a holder of a Provisional Spouse visa, this may affect his eligibility for the permanent Partner visa.

    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

32. The applicant told the Tribunal that his partner has no contact with her children and the children do not wish to have contact with her. The children live with their father and his wife pays maintenance. The applicant states that he met the children before the marriage but has not had any contact with them since the marriage and had not seen the children. In these circumstances, the Tribunal is of the view that  the cancellation of the visa would have no effect on the children and that the children’s best interests will not be adversely affected.

33. The applicant’s partner resides in Australia and the principle of family unity may require his presence here, although the applicant has other family overseas.  

34. The applicant told the Tribunal that he has a good reputation and the cancellation of the visa would affect his reputation because people will think he is a bad person who has done something wrong in Australia. The Tribunal does not consider this amounts to persecution or serious or significant harm. The Tribunal does not consider that non-refoulement obligations arise in this case.

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

35. The visa in question is not a permanent visa, although it provides a pathway to obtaining a permanent Partner via. The Tribunal accepts that the applicant has considerable family ties in Australia, including his partner and step-children.

    Any other relevant matters

36. The applicant states that the delegate failed to give consideration on the fact that his phone was accessed by other persons and ignored exculpatory facts. The applicant notes that he was unable to obtain the material through the FOI and the refusal to release that material by the Department led to the denial of natural justice. The applicant states that his good character and life in India should be considered and the matter should be properly investigated. The applicant states that he had no intention of doing anything wrong.

1. The representative refers to the Covid crisis in India, stating that if the applicant has to return to India, he may face danger in India. The Tribunal acknowledges that evidence.

2. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there is a ground for cancelling the visa because the applicant was in possession of a phone which contained objectionable material. However, the Tribunal considers it possible that others had access to the applicant’s phone and it is possible that the material was downloaded by others and not the applicant. It is not necessary for the Tribunal to make that determination but the Tribunal considers it possible that the applicant was not responsible for the downloading of the material. There is simply insufficient  evidence before the Tribunal to make a positive determination that it was the applicant who was responsible for placing the objectionable material on the phone. Neither is the Tribunal able to make a positive determination that the applicant was aware of the material on the phone. While the Tribunal has formed the view that the applicant has not been truthful in his evidence about his usage of the phone, and that he had deliberately sought to minimise the nature of such usage, there is insufficient evidence before the Tribunal to determine that the applicant had intentionally imported the material or that he did so knowingly. The Tribunal does not consider these matters need to be established in order to find that there is a ground for cancelling the visa but these are relevant to the exercise of discretion.

3. The Tribunal places weight on the fact that the applicant had not been charged with any offence and the breach of the Customs Regulations has not yet been proven. The Tribunal is mindful that should the applicant be convicted of an offence, this may in itself form a basis for the cancellation of the visa in the future.

4. The applicant claims to be in a genuine spousal relationship with the sponsor and he is able to fulfil the purpose of the visa by remaining in Australia with his partner. The Tribunal acknowledges that hardship that would be caused to the applicant and his partner if the visa is cancelled because the applicant, and most likely his spouse, would have to leave Australia and that would extend the separation of the applicant’s spouse with her children in Australia. The Tribunal also acknowledges the evidence about the medical condition of the applicant’s spouse.

5. Overall, the Tribunal finds that the circumstances in which the breach occurred (where the applicant’s knowledge or intent to import have not been established) and the hardship that would be caused by the cancellation outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

   DECISION

6. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

   Kira Raif
   Senior Member