1805470 (Migration)

[2018] AATA 2380

1805470 (Migration) [2018] AATA 2380 (23 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805470

MEMBER:Kira Raif

DATE:23 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 April 2018 at 2:44pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the applicant is a risk to the Australian community or a segment of the Australian community – Criminal history involving violence – Breach of Apprehended Violence Order – Pending criminal charges – Whether the visa should be cancelled – Financial hardship if visa cancelled – No adverse information known – Grounds for cancellation outweighs grounds for reinstatement – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 22 February 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Saudi Arabia born in [a particular year]. He was granted a student visa [in] March 2015 and that visa was to be in effect until [August] 2019. [In] January 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his written response on 20 February 2018 and his visa was cancelled [in] February 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 23 April 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review. 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 or the Tribunal 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.

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that according to the NSW Police, the applicant had been charged with the following offences [in] January 2018:

   a.Indecent assault person under 16 years of age

   b.Common assault.

7. According to the decision record, the applicant had previously been charged and convicted of the following offences in July 2016:

   a.Common assault

   b.Contravene prohibition / restriction in AVO (domestic)

   c.Common assault.

8. In his written evidence to the Tribunal the applicant states, in relation to these offences, that he was charged with assault in May 2016 following an incident with a person he was in a relationship with. He pleaded guilty and was given a good behaviour bond of 18 months. The court also issued the AVO for the protection of the female partner. The applicant told the Tribunal that they maintain a good relationship and since his former partner left Australia, they exchanged emails. The applicant states that the second assault took place in July 2016 and involved the same person who was the subject of the AVO. The applicant was charged with assault and contravention of the AVO and was given a further good behaviour bond of 18 months.  On the first court date he pleaded guilty and was sentenced.

9. In his written response to the NOICC and his written submission to the Tribunal of 20 April 2018 the applicant claims that the most recent charges result from a misunderstanding on the victim’s part. The applicant states that he is a good person who would always help others and who respects the Australian values. In his submission to the Tribunal of 20 April 2018 the applicant also claims that the grounds for cancellation are not made out. The applicant outlines his background and study history. With respect to the charges, the applicant states that there has been a ‘misunderstanding’ from the victim’s side and apologises for causing fear or risk to the community. The applicant states in his declaration and his oral evidence to the Tribunal that if he is given another chance, he would have no problems with the authorities. The Tribunal is mindful, however, that the applicant had been convicted of offences in 2016 and it can be said that the applicant was already given another chance as no action was taken in relation to his visa then.

10. In oral evidence the applicant told the Tribunal that his behaviour [did] not intend to cause harm. The applicant said that even though he was still on the good behaviour bond, he had no problems in the previous 17 months and the conduct occurred one month before the good behaviour bond expired. The applicant said that his conduct did not involve violence or drugs. The Tribunal is mindful that harm may occur whether or not there is violence or drugs. Conduct that causes a victim to be fearful or apprehensive for their safety or wellbeing can constitute harm.

11. With respect to the 2016 offences, the applicant said there was a ‘minor misunderstanding’ with his girlfriend. He said that witnesses called the police but his girlfriend did not want to press charges. The applicant said that the AVO was issued because the police decided she was at a risk. The AVO did not allow him to consume alcohol in the presence of his girlfriend and he drank a few hours before he met her, so he was considered to be in breach of the AVO. The applicant said in relation to the earlier offences that he was not familiar with the law as he was new to the country. He said that he pleaded guilty on the advice of his lawyer and he did not realise he would have a record.

12. The applicant argues that his behaviour does not amount to him being a risk to the community. The applicant notes that the behaviour that led to the charges involved him kissing the alleged victim on a side of her cheek. The applicant argues that the charge of indecent assault cannot be sustained in such circumstances but it is not for the Tribunal to determine the likelihood of the finding of guilt. It is the applicant’s conduct, not the finding of guilt, that may give rise to the ground for cancellation. The applicant appears to suggest that he did engage in conduct whereby he kissed a girl and that conduct, without her consent, would have been entirely inappropriate and likely to have been very uncomfortable for the alleged victim. The Tribunal is also of the view that the consideration of the applicant’s conduct is not limited to the present charges. While the Department did not take any action to cancel the applicant’s visa after the 2016 incidents, the Tribunal considers these to be significant as they involved violence towards another person and a breach of the AVO when the applicant would have known that the AVO was in place and aware of the restrictions that such an Order placed on his behaviour.

13. With respect to the current charges, the applicant refers to the information in the police facts sheet. The applicant notes that he was granted bail and complied with his bail conditions before being detained by Immigration. The criminal matter was heard in April 2018 but was adjourned.

14. The Tribunal finds that according to the decision record and the applicant’s own evidence to the Tribunal, the applicant had been convicted of serious offenses in 2016, which included two counts of assault and a breach of an AVO. The fact that an AVO has been issued may indicate that a determination had been made that the person named in the Order was in need of protection. While the Tribunal accepts that this person has now left Australia, the Tribunal is concerned by the applicant’s conduct and his willingness to engage in such conduct. The applicant admits to breaching the AVO by consuming alcohol before contacting his then girlfriend, that is he breached the AVO knowingly. While on a good behaviour bond, the applicant has been charged with another offence. Although the applicant claims it was a ‘misunderstanding’ and that he did not intend to harm anyone, the police fact sheet, a copy of which the applicant provided to the Tribunal with his written submission and the applicant’s own evidence, may suggest that the applicant did engage in conduct that was inappropriate.

15. The Tribunal finds that the applicant has shown a disregard for the Australian law and that on multiple occasions he engaged in conduct with little or no regard for the safety and wellbeing of others. The Tribunal finds that the applicant’s presence in Australia may be a risk to the safety or good order of the Australian community or a segment of the community (such as women) or to the safety or an individual or individuals (those in relation to whom the charges have been laid). The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

16. There are no matters specified in the Act or the Migration Regulations 1994 that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified 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

17. The purpose of the student visa is to enable the visa applicant to undertake study in Australia. In his response to the NOICC and his evidence to the Tribunal the applicant states that he was undertaking a [course] at [a particular university], which he was due to complete in 2019, and has been supported by the Ministry of Higher Education in Saudi Arabia. The applicant claims it is his goal to be educated and help his family and to support his mother and he plans to return to Saudi Arabia to work as an [occupation]. The applicant told the Tribunal that he could not enrol once his visa was cancelled and if the visa is reinstated, he could enrol it the next semester.

18. The applicant provided to the Tribunal information about his scholarship and states that if his visa is cancelled, it would lead to the cancellation of his scholarship, with serious consequences to himself and his family. The applicant told the Tribunal that since he lost his father when he was young, he considered himself as the source of support to his family. The family had given up a lot to enable him to study in Australia and if he has no visa, he will not have the scholarship. The Tribunal accepts that if the applicant’s visa is cancelled, and unless he is granted another suitable visa, the applicant may be unable to continue or complete his studies in Australia.

    The extent of compliance with visa conditions

19. There is nothing before the Tribunal to indicate that the applicant has not complied with visa conditions. The applicant told the Tribunal that he complied with all visa conditions and never had any problems during his study in Australia.

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

20. The applicant refers to his desire to complete his studies in Australia. He states he dreams of being [a particular occupation] and supporting his mother and his family. In his evidence to the Tribunal the applicant states that if his visa is cancelled and he cannot complete his study in Australia, he cannot do [his particular] course in Saudi Arabia and without the financial support, he could not study elsewhere. The applicant states that the loss of the visa and the loss of scholarship would have a devastating impact on him and his future career and his family. The applicant also notes that if he returns to his country without completing the degree, he may be required to repay the scholarship, either partly or the entire amount.

21. The Tribunal acknowledges that if the applicant cannot study in Australia, he is unlikely to complete his current course. It may be possible for the applicant to pursue studies in another country although the applicant’s evidence is that he has no funds to pursue studies elsewhere and he will not be able to obtain any other scholarship. The Tribunal accepts that substantial hardship may be caused to the applicant as a result of the cancellation.

    Circumstances in which ground of cancellation arose

22. The ground for cancellation arose because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the community or a segment of the community. The applicant notes in his written submission to the Tribunal that the earlier convictions did not raise any issues of concern for the delegate but in the Tribunal’s view, it is the entirety of the applicant’s conduct, including the earlier conduct resulting in the issuance of the AVO and the convictions, as well as the more recent charges, that form the basis for the cancellation.

23. The applicant claims in relation to the most recent alleged incident that it was a misunderstanding and he believed one of the charges would be withdrawn. The applicant’s evidence to the Tribunal is that he pleaded guilty to the earlier charges.

    Past and present behaviour of the visa holder towards the department

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

    Whether there would be consequential cancellations under s.140

25. There are no persons whose visas may be subject to consequential cancellations under s.140.

    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

26. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. He is presently in detention and there is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant’s evidence to the Tribunal is that his application for a Bridging E visa has been refused. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

    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

27. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement will be breached as a result of the cancellation. There are no children affected by the cancellation.

    Any other relevant matters

28. The applicant told the Tribunal that if his visa is reinstated, he will be able to see his legal representatives in relation to the criminal matter. The applicant states that his lawyer is asking for a fee of over $1,000 to see him in detention. The Tribunal is prepared to accept that it may be more convenient and cheaper for the applicant to communicate with the legal representatives if he is outside of detention but the Tribunal is of the view that any criminal lawyer would be well used to visiting clients in detention and the Tribunal does not consider that the applicant’s criminal proceedings would be adversely affected by the cancellation of the visa.

29. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the presence of the applicant in Australia may be a risk to the safety of the Australian community or a segment of the community (women) or to the health or safety of an individual or individuals (those to whom the most recent charges relate).

30. The Tribunal accepts that considerable hardship may be caused by the cancellation of the visa. In particular, the Tribunal accepts that the applicant and his family had invested a lot into enabling the applicant to study in Australia and if the visa is cancelled, the applicant will not be able to maintain the scholarship and complete his course. The Tribunal accepts that without the scholarship the applicant may not be able to complete his studies and graduate and that may adversely affect the applicant and his family. There is no documentary evidence to support the applicant’s claim that he would have to repay the scholarship if he cannot complete his studies but the Tribunal is prepared to accept there may be financial implications if the visa is cancelled. The Tribunal accepts that hardship may be caused if the visa is cancelled. The Tribunal acknowledges that the applicant has been cooperative with the Department and appears to have complied with visa conditions.

31. Against these considerations, the Tribunal has considered the nature of the applicant’s conduct. The applicant had been convicted of two counts of assault in relation to his then girlfriend and the police reports which the applicant presented to the Tribunal indicate there was a degree of violence in those interactions. The applicant had been issued with the AVO and admits to breaching it. The more recent charges relate to the applicant’s inappropriate conduct in relation to another person and the Tribunal does not accept the applicant’s suggestion there was a ‘misunderstanding’. In the Tribunal’s view, the applicant would have known, or should have known, that his conduct was inappropriate. The Tribunal gives greater weight to the circumstances in which the ground for cancellation arises and the nature of the applicant’s conduct in 2016 and 2018. The Tribunal has formed the view that the applicant has shown a persistent disregard for the safety and welfare of others and that factor outweighs other considerations.

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

    DECISION

33. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Kira Raif
    Senior Member