1818931 (Migration)

[2018] AATA 5975

1818931 (Migration) [2018] AATA 5975 (25 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818931

MEMBER:Denis Dragovic

DATE:25 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 25 October 2018 at 11:52am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – charged with three counts of indecent assault – pleaded guilty – pattern of behaviour – lack of remorse – consideration of discretion – purpose of visa grant – degree of hardship – non-refoulement obligations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
BCR16 v MIBP (2017) 248 FCR 456
Gong v MIBP [2016] FCCA 561

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 25 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant was arrested and charged on three counts of assault ranging across three dates from March to September 2017. The victims were aged 14, 17 and 20 years. The nature of the offences, according to the decision record, is such to ‘indicate a propensity for offences of a violent sexual nature against young women and children.’ For this reason the delegate concluded that the applicant is or maybe a risk to the safety of the Australian community or a segment of the Australian community, specifically women and children. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 31 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].

4. 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

5. 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)(i), which reads:

   (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:                

   (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or;

6. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(e) - risk to Australian community or individual

7. The Notice of Intention to Consider Cancellation (NOICC) lists that the applicant was charged with three counts of assault ranging across three dates from March to September 2017. The victims were all female and aged 14, 17 and 20 years. The applicant did not deny being charged as described by the NOICC.

8. I asked where he stood in his court process to which he responded that he had a sentencing hearing on 24 September 2018 as he had pleaded guilty to all three charges.

9. The applicant stated that he was on [Medication 1], a drug used as an anticonvulsant which decreases the occurrence of abnormal nerve impulses in the brain. I accept that the applicant has epilepsy.

10. The applicant presented as either being slow in comprehension or intentionally withholding information. Considering that he was on track to complete [a qualification] I suspect the latter but through the hearing I erred on the side of caution and repeated questions to him when answers weren’t forthcoming.

11. I asked the applicant if he thought that he had done anything wrong. After some delay he responded by saying that he didn’t think so.

12. I explained to him his right against self-incrimination. I asked him how each of the three alleged assaults occurred. He was not expansive in his response. He told the Tribunal that on the first occasion he was on a bus and had an epileptic fit, the second time he was reaching out to shake a girl’s hand and had another epileptic fit. The third time he was simply looking at a girl. I expressed my disbelief to the applicant that an epileptic fit could lead to such circumstances.

13. I note that the applicant provided limited information of the circumstances leading to the grounds of cancellation but I accept that it is his right. As such I proceed on what information he has provided.

14. He claimed that on two occasions he had an epileptic fit. This claim appears incongruent with the nature of the assault, namely that it is ‘indecent assault’ as opposed to ‘assault’. It would be very strange for someone who is having a seizure to indecently assault another person, twice, and secondly for that other person to mistake that for assault as opposed to an epileptic fit. Furthermore, that each time it is a female upon whom he has fallen onto. I also note that the third instance was a non-epileptic related incident and lacks credibility because I find that that simply looking at a girl would not lead the police to charge him with indecent assault. As such I do not accept the applicant’s claims that his assaults arose from his epilepsy nor that he was simply looking at someone.

15. I note that he has no regrets for his actions.

16. No court documents were submitted despite being asked and despite time being given post-hearing for submissions and being asked again by correspondence after the hearing. Instead, the applicant tried to explain the stage at which the court process had progressed in a post-hearing submission dated 25 September but the writing is indecipherable:

    Court do not agree with this statement, my visa was cancelled behalf of my court case. They want some supportive documents from me, judge said that they want to book a counceling for me, they said, you need a at least 1 year visa, they said bring a at least 1 year then they will book a counceling for me, and they will impose a suspended sentence as well. That’s why put a another appointment date on 15 November.

    Your sincerely

    [The Applicant]

17. Despite no court documents being provided and recognising that the process is ongoing and the applicant having pleaded guilty I have decided to proceed with the information before me recognising that there is no requirement that there be a determination of guilt for the grounds of cancellation to be made out.[1]

    [1] Gong v MIBP [2016] FCCA 561 at [45].

18. The witness provided information as follows: their families know each other in India but they met for the first time in Australia. As far as the witness was aware the police went looking for the applicant at his home but he was away interstate. When he arrived to Adelaide by airplane from Melbourne he was arrested at the airport. The witness found it hard to believe that the applicant did what is alleged. The witness stated that the applicant hadn’t admitted to committing the assaults to anyone including to his lawyer or friends. He claimed that the lawyer told the applicant that if he pled early then he could get a discount in punishment. So for that reason he pled guilty. The witness claimed that the applicant needs to do a particular type of counselling and 1,000 hours of community service.

19. In considering whether there are grounds for cancellation I note that the applicant has been charged with indecently assaulting women on three occasions including a young girl, a fact that is based upon the NOICC and which he has not disputed. In response he provided testimony explaining the circumstances, which I found to be unconvincing, and he presented a complete lack of regret for his actions. The witness, having provided evidence that the applicant hadn’t admitted his guilt to anyone, could lend weight to the applicant’s claim that he hadn’t intentionally committed the crime or alternatively that he refuses to accept responsibility. Similarly, I acknowledge that the applicant may have had explained to him the consequences of pleading guilty and that he chose to do so to get a discount in punishment, but this does not negate the possibility that he had actually committed the acts. It simply means that he decided to pursue a particular legal course of action. On balance, acknowledging the evidence given explaining the circumstances he found himself in, I find that the applicant satisfies the ground for cancellation in s.116(1)(e)(i), as I find that there is a pattern of behaviour that I am convinced has occurred for reasons not related to his epilepsy and for which there is limited evidence to assume would not continue into the future. Specifically, I find that this behaviour is such that the applicant is or may be a risk to the safety of a segment of the Australian community, namely women. 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

20. In considering the discretionary elements I note that there are no matters specified in the Act or regulations that must be considered. 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’.

21. The applicant came to Australia to pursue studies. He completed a [Qualification 1] in [Discipline 1] and was in the process of completing [a Qualification 2] in [Discipline 1] until his visa was cancelled and he was placed in detention in June 2018. Had he not been detained and assuming an ongoing capacity to pass, he would have completed his studies by December 2018. I note that there is an expectation on all students to abide by the conditions of their visa. Considering that the applicant has already completed the [qualification] for which he came to Australia, meeting his purpose for travel to Australia, I give little weight against cancelling the applicant’s visa on the basis of his reasons for being in Australia.

22. The applicant has breached his conditions by committing a crime for which he has stated that he pled guilty. Other than this breach the applicant has been compliant with his visa conditions. Considering that I have found earlier that there is a pattern of behaviour, he has not expressed regret and the victims have included a minor I give substantial weight in favour of cancelling the applicant’s visa for reasons of breaching his visa conditions.

23. The applicant does not have family in Australia nor any dependents who would face hardship if his visa was cancelled. The cancellation of his visa would cause him stress and shame upon return to India because he would have spent a considerable amount of money on tuition and living expenses without completing his final course. He claims that he can’t study [a Qualification 2] in India and that he won’t be able to find a job there. The applicant’s claims of being unable to find work because he has a [Qualification 1] in [Discipline 1] but not [a Qualification 2] I find to be without basis and purely speculative. I find that the applicant’s claims that he would not be able to find work a possibility but one that is influenced by so many factors including, but not limited to, whether he has [a Qualification 2], and as such give it little weight. In addition the applicant may face psychological and emotional hardship for reasons of his changed circumstances, but having his family present to provide support would, I find, negate any possible repercussions. Considering his hardship as a whole I place little weight against cancelling the applicant’s visa largely stemming from challenges in finding work but mitigated because he has completed his first certificate.

24. There is no information to suggest that the applicant has had any negative behaviour in the past or present in relation to the department. I give this limited weight for the reason that there is a minimum expectation for visa holders to engage positively with the department.

25. There would be no consequential cancellations was this visa to be cancelled.

26. I note that the applicant is in detention. He may remain in detention for an unknown period of time until his visa application is finalised, including any possible judicial reviews. There is no reason to believe that indefinite detention is a possibility as the applicant is a citizen of India, and in the case that he chooses not to return voluntarily, India accepts forced deportations. The applicant would be subject to s.48 and barred from applying for some visas on-shore. I have taken all of these matters into consideration and place some weight against cancelling the applicant’s visa largely due to the potential length of time he will face being in detention.

27. The applicant claims that he fears his wife’s family as they are a different caste and her parents are looking for him. The applicant applied for a protection visa on 20 June 2018 and the Department refused it. The applicant subsequently appealed to the Tribunal. This matter will be heard by a member of the Tribunal in the Migration and Refugee Division, meaning that the process will not engage with character issues.

28. I differentiate this case from BCR16[2] as in that instance consideration was being given to whether the visa application could be refused under s.65 on character grounds prior to it being considered under ss.36(2)(a) and (aa). In this case the application has already been accepted and is being actively considered by the Department and now Tribunal. As such, in this instance his fear of persecution and the government’s obligations against non-refoulement are being considered. If the applicant’s visa was to remain cancelled he would not face removal from Australia until his protection visa application is finalised. For that reason I find that affirming the cancellation of the applicant’s visa will not lead to a situation in which Australia’s international obligations will be breached as his protection claims are being actively considered and as such I place no weight on this consideration.

    [2] BCR16 v MIBP (2017) 248 FCR 456

29. Considering the circumstances as a whole, accepting the weightings as denoted above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Denis Dragovic
    Senior Member