Taylor (Migration)

[2021] AATA 3278

Taylor (Migration) [2021] AATA 3278 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kai Benjamin Taylor

CASE NUMBER:  2107160

HOME AFFAIRS REFERENCE(S):          BCC2021/629329

MEMBER:Kira Raif

DATE:25 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2021 at 3:23pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to safety or good order of community – multiple serious traffic offences, demerit points, fines and suspension of licence – driving through tunnels at night and unaware of speed – change of address without notifying traffic authority or department, so unaware of infringement notices and department’s notice – limited understanding of actions – no traffic infringements in home country – application for student visa in progress and will be considered irrespective of the outcome of this review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e), (3)
Road Transport (Driver Licensing) Regulations 2017 (NSW), r 122

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 24 May 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).

2. The applicant is a national of the UK, born in September 1995. He was granted a Bridging A visa (BVA) in March 2021 on the basis of an application for a Student visa. In April 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there were grounds for cancelling the visa under s. 116(1)(e) of the Act. The applicant did not respond to the NOICC and his visa was cancelled in May 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 25 August 2021 to give evidence and present arguments. 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 affirmed.

   Relevant law

4. 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)(e). 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.

5. 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].

6. 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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant was issued a Bridging A visa in March 2021 on the basis of an application for a Student visa. The Department received advice that in October 2020 the applicant hired a vehicle from No Birds Car Rentals. It is stated that a number of infringement notices had been issued to the applicant in relation to the vehicle. The infringements relate to the following offences committed between November 2020 and January 2021:

   ·     10 km over the speed limit (18 occurrences)

   ·     20 km over the speed limit (2 occurrences)

   ·     30 km over the speed limit (6 occurrences)

   ·     45 km over the speed limit (6 occurrences)

   ·     use of mobile phone while driving (4 occurrences)

   ·     parking related offences (4 occurrences)

8. It is noted that the matter was reported to the police. On 22 January 2021 the NSW police stopped the vehicle and placed the applicant under arrest for speeding offences. The primary decision record indicates that the applicant made full admission to the police of being the driver at the time of all offences and that he was the only person to drive the car. The applicant also admitted to being the driver when using the mobile phone. The primary decision record indicates that as a result of the above offences, the applicant lost 131 demerit points and is liable to pay fines of $27,212.

9. The applicant did not respond to the NOICC. However, in his written submissions to the Tribunal of 31 May 2021 and 18 August 2021 the applicant outlined his background and immigration history, and addressed the factors that led to the cancellation of his visa. The applicant states that he had hired a car when he lived at a different address. He moved to a new address in October 2020 but had not informed the car rental company about the change of address, nor had he updated his driver license. The applicant states that between November 2020 and January 2021 he was unaware of receiving driving offences [sic]. In January 2021 he was pulled over by the police, subjected to a drug and alcohol test which was negative, released and required to pay the fine. He has made arrangements to repay the fine by instalments and has commenced repayments in February 2021.

10. The applicant states that his driver license was registered to the old address and he did not update his address when he moved in October 2020. The applicant notes that the first traffic offence occurred in November 2020 and all the fines and RTA correspondence were sent to his previous address, so he was unaware of committing traffic offences. The Tribunal does not accept that evidence. Firstly, the Tribunal is mindful that it was the applicant’s responsibility to update his address with the Roads and Maritime Service. He is required to do so under r. 122 of the Road Transport (Driver Licensing) Regulations 2017 (NSW). Secondly, and significantly, the Tribunal does not accept that the applicant was unaware that he was committing offences when speeding or using a mobile phone while driving because he did not receive any correspondence about the offending or the fines. The applicant would be well aware of the various speed limits and the need to comply with those, irrespective of whether he had received any communication about the fines. He would also be aware of the prohibition on the use of a mobile phone while driving and parking rules. The fact that the applicant held a driver’s license and was allowed to drive a car in Australia implies that he is familiar with the road rules. The applicant had persistently breached speed limits and in the Tribunal’s view, the applicant would have been well aware that he was in breach of the road rules whether or not he had received any communication. Thus, the Tribunal does not consider the fact that the applicant did not receive any communication from RTA (which resulted from his own failure to comply with relevant law cited above) can be seen as a justification of the applicant’s conduct and if the applicant suggests that it is, then the Tribunal is of the view that the applicant has very little insight into his behaviour.

11. The applicant also states that he did not receive any communication from the Department of Home Affairs because his education agent failed to inform him of the importance of notifying the Department of his change of address and he had not done so. In the Tribunal’s view, that explanation also reflects the applicant’s unwillingness to take responsibility for his own conduct. If the applicant was required to inform Immigration of his change of address, it was the applicant’s responsibility to acquaint himself of these requirements. Further, as noted above, the applicant’s driving offences arise from the manner of his driving and not because the applicant had not received any communication from the Department. Indeed, it is unclear how the applicant not receiving any communication from the Department could be relevant to addressing his conduct and assessing whether he is or may be a risk to others.

12. The applicant explains why he did not respond to the NOICC and the Tribunal accepts that evidence.

13. The applicant states in his written submission to the Tribunal that he obtained his driver license at the age of 18 and had no record of committing traffic infringements or losing points on his UK driver license. The applicant states that he did not commit any offences prior to November 2020 and has never been charged or convicted of any other offences. (He provided to the Tribunal his AFP certificate issued in June 2021 showing no disclosable court outcomes and the Tribunal accepts that evidence.) The applicant states that he has understood the gravity of his irresponsible actions and is ashamed of the impact these could have had on himself and others. The applicant states that he has learned from his mistakes, that he is concerned about his future and his ability to complete his studies. The applicant provided evidence of having made repayments.

14. In oral evidence, the applicant explained that he was doing nightshift work and was driving through tunnels very late and was not aware of his speed. Because he had not driven in Australia before, he was not aware that he was committing offences as he had not received any correspondence. The applicant notes that he had been driving since the age of 18 and had not committed any driving offences. As noted elsewhere, the Tribunal does not accept that the applicant was unaware of the Australian road rules. As for the applicant’s evidence that he was not aware of the speed, the Tribunal does not consider that plausible. A more likely explanation, in the Tribunal’s view, is that  the applicant chose to speed because there were no other cars on the road.

15. The Tribunal has considered the applicant’s circumstances. The information in the primary decision record, which the applicant confirms, indicates that the applicant has committed numerous traffic offences within a fairly short period of time. The applicant had consistently disregarded the road rules. The Tribunal is of the view that driving offences are serious and offences such as speeding and the use of a mobile phone have the potential of causing harm or even death to other road users. While the Tribunal accepts that there is no evidence of the applicant committing any other offences, including road offences prior to November 2020, the fact that he did persistently commit multiple offences from that period and until he was stopped by the police suggests to the Tribunal his disregard for the law. As noted above, the Tribunal does not accept the applicant’s evidence that he did not appreciate the nature of his conduct because he did not receive any communication from RTA or the Department. If the applicant was a holder of a driver license – and he claims he worked hard to get one in the UK and also obtained the Australian one – he would be well familiar with road rules, including rules on speeding and the use of a mobile phone. The applicant’s obligation to comply with such rules exists irrespective of whether he is informed by others about the offending.

16. The applicant claims in his submission to the Tribunal that he has understood the gravity of his irresponsible actions and is feeling ashamed. He presented to the Tribunal a number of character references. The Tribunal is concerned that the applicant has only expressed these views in response to the potential cancellation of his visa. The fact that the applicant accumulated about 40 offences in the short period of three months does not suggest that he had understood the gravity of his actions.

17. The Tribunal acknowledges that the applicant has not been able to drive due to the suspension of his license since the offences were committed and that may indicate low (or non-existent) risk of reoffending in the immediate future before the applicant is able to resume driving. However the Tribunal is concerned that once the applicant is able to drive again, he may return to the same conduct, despite his claimed appreciation of the gravity of his conduct and his expression of remorse. The applicant told the Tribunal that he has learned from his mistakes and was willing to undertake driving courses but he also told the Tribunal he has not engaged in any courses. The applicant does not require permission or authorisation to undertake any driving courses and if he had a genuine desire to engage in those, he could have done so.

18. As noted above, the Tribunal considers driving offences to be serious because of their potential to cause serious harm to others. The high volume of offending, the recency of the offending conduct and the applicant’s apparent indifference about his obligation to comply with other requirements (such as informing the Road and Maritime Services of the change of address) all suggest to the Tribunal that the applicant has a disregard for the Australian law. The Tribunal is of the view that insufficient time has passed since the offences have occurred to establish with any degree of certainty that the applicant will not continue with the same conduct, if he is able to drive and this is particularly so as the applicant has not been able to drive recently. The Tribunal is concerned that the applicant will again infringe road rules, when he resumes driving, and by doing so, risk the safety of other road users.

19. The Tribunal finds that the applicant’s presence in Australia may be a risk to the safety of the Australian community or a segment of the community (road users). The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(e) of the Act.

20. 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

21. 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

22. The applicant states in his evidence to the Tribunal that he had initially travelled to Australia on a Working Holiday visa and has made an application for a Student visa. The applicant states that he wishes to complete study in Australia to ensure a better future in his home country. He provided to the Tribunal evidence of his enrolment. The Tribunal accepts that evidence and accepts that the purpose of the applicant’s stay in Australia is to pursue study in this country. However, the Tribunal is mindful that the applicant’s ability to pursue study is not dependent on the applicant holding the BVA. Rather, the applicant’s ability to study depends on the grant of a Student visa to him. The application for the Student visa will be considered irrespective of whether or not the applicant is the holder of a Bridging A visa and irrespective of the outcome of this review, although the Tribunal acknowledges that the applicant may be required to meet additional requirements when seeking the Student visa, if his BVA remains cancelled.

23. The applicant told the Tribunal that he has been in a relationship for about 11 months. His girlfriend has been granted a Student visa and he wants to remain in Australia with her and do his own course before returning to the UK. Despite lack of evidence concerning the relationship, the Tribunal is prepared to accept that the applicant is in a relationship with a Student visa holder and prefers to remain in Australia with her. Again, the applicant’s ability to do so depends on him being granted a substantive visa. The Tribunal acknowledges that the presence of his girlfriend in Australia may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

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

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

25. The applicant states in his submission to the Tribunal that his intention is to pursue study in Australia and he is concerned about his future if his visa is cancelled. The applicant told the Tribunal that he cannot return to the UK where Covid is rampant. The Tribunal accepts that the applicant prefers to remain in Australia and does not wish to return to the UK. However, as noted above, the applicant presently has an application for a Student visa that has not been finally determined and the two applications are independent of each other. The cancellation of the Bridging A visa will not necessarily result in the Student visa being refused (although the applicant may need to meet the additional requirements of Item 4013). If the applicant is granted the Student visa, he will be able to remain in Australia to pursue study. The Bridging A visa is not designed to enable the applicant to remain in Australia on a long-term basis and study in Australia. It is merely a visa to enable the applicant to await the outcome of another visa and he can do so whether or not he holds a Bridging A visa.

26. The applicant told the Tribunal that if his BVA is cancelled, his mental state would be affected as he may not be able to stay and study in Australia and he has been in touch with the college seeking help. As noted above, the Tribunal does not consider that the cancellation of the Bridging visa means the applicant cannot stay and study in Australia. Further, the applicant presented no medical evidence to support his claims that his mental health has been affected and the Tribunal is not prepared to accept the applicant’s assertions. In the circumstances where the applicant will be permitted to remain in Australia to await the outcome of the Student visa, and in the absence of probative evidence to indicate that the applicant’s mental health has been (or will be) affected, the Tribunal does not accept that the applicant’s mental state would be adversely affected by the cancellation of his visa.

27. The Tribunal is of the view that some hardship would be caused to the applicant by the cancellation of his visa, due to the effect it may have on the applicant’s eligibility for the Student visa application (such as having to satisfy PIC 4013). In the Tribunal’s view, the hardship would be minimal, because the applicant will not be required to leave Australia, and his Student visa must not be refused, as a result of the present cancellation.

    Circumstances in which ground of cancellation arose.

28. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others. The circumstances of the offences are set out by the applicant in his evidence to the Tribunal and summarised above. Essentially, the applicant seems to suggest in his written evidence to the Tribunal that he did not receive any communication from RTA or the Department but as noted above, the Tribunal does not accept that the multiple traffic infringements were the result of the applicant not receiving communication. Rather, these occurred because of the nature of the applicant’s driving. The applicant explained to the Tribunal that he was driving to work at night and was not cognisant of his speed but the Tribunal has formed the view that the applicant would have been familiar with the Australian road rules and of his driving speed and should have been aware of the fact that he was breaching those. The applicant had been given permission to drive in Australia, which implies knowledge of the Australian road rules and a proven ability to drive a car, including the use of the speedometer.

    Past and present behaviour of the visa holder towards the department

1. Nothing adverse is known about the applicant’s past and present behaviour towards the Department and the Tribunal acknowledges the applicant’s expression of remorse in his evidence to the Tribunal.

   Whether there would be consequential cancellations under s.140

2. 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

3. If the applicant’s visa is cancelled, and if he is not granted another visa, the applicant may become an unlawful non-citizen and may be subject to detention and removal from Australia. As the applicant has another application for a substantive visa that has not been finally determined, it is highly unlikely that the applicant would be removed from Australia before that application is finally determined and the Tribunal is mindful that the applicant may be eligible to seek another Bridging visa on the basis of that application. If the applicant decides to make another application for a visa in Australia, there will be limited types of visas he can apply for and if the applicant was to make an application for a visa offshore, he may be subject to an exclusion period. The applicant may also be affected by a risk factor, for the purpose of Item 4013.

   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

4. There are no children affected by the cancellation. The applicant does not claim, and there is no evidence that the cancellation of the visa would breach Australia’s non-refoulement obligations. The applicant referred to having a girlfriend in Australia. He told the Tribunal that his family is in UK, Spain and South Africa. The cancellation of the visa would not breach the family unity principles.

   Any other relevant matters

5. The applicant presented in his evidence to the Tribunal reference letters and the Tribunal accepts the evidence contained in these letters. The applicant presented a copy of his UK driver licence as evidence that he has no infringements and the Tribunal accepts that evidence. The applicant presented a number of documents to evidence his change of address and other material to support his submission of 31 May 2021 and the Tribunal has given these due regard.

6. The applicant’s evidence is that he has started repayments of the fine and has been complying with the arrangements. The Tribunal accepts that evidence. The Tribunal also accepts the applicant’s evidence that when pulled over by the police, he immediately accepted the responsibility and made arrangements for repayments.

7. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant’s presence in Australia may be a risk to others and there are grounds for cancelling his visa. The Tribunal is of the view that minimal hardship would be caused by the cancellation and, importantly, it would not prevent the applicant from seeking the Student visa which, if granted, would enable the applicant to pursue his dream of living and studying in Australia. The Tribunal places significant weight on the fact that the processing of the Student visa would be unaffected by the cancellation of the present visa (even though the applicant would have to meet additional visa criteria as a result of the cancellation) and that the cancellation of the present visa would not result in the applicant being required to leave Australia. The Tribunal finds that the cancellation of the visa would not breach Australia’s international obligations.

8. Having regard to the seriousness of the applicant’s conduct, and the potential of harm it may cause to others, the Tribunal has formed the view that, in all the circumstances of this case, these factors outweigh others. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Kira Raif
   Senior Member