1835156 (Migration)

[2019] AATA 2328

1835156 (Migration) [2019] AATA 2328 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1835156

MEMBER:Jason Pennell

DATE:14 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 February 2019 at 10.47 am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – convicted of an offence against the Commonwealth – assault and family violence – consideration of discretion – consequential cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198
Migration Regulations 1994 (Cth), rr 2.12, 2.43

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 21 November 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(g) on the basis that the delegate was satisfied that the applicant had been convicted of an offence against the Commonwealth, a State or Territory.[1] The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

[1] Regulation 2.43(1)(0a) of the Migration Regulations 1994

3.The applicant appeared before the Tribunal on 11 February 2019 to give evidence and present arguments.

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)(g) of the Act. 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)(g) - prescribed ground

1. 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(oa) is relevant.

2. The applicant was born on [date] in Colombo Sri Lanka. His parents continue to live in Sri Lanka. He has a brother who is a resident of Australia and lives in [Victoria].  The applicant attended school at [a named] College until [grade] and then [another] College [to complete his schooling]. The applicant did not complete and Tertiary studies in Sri Lanka.

3. The applicant arrived in Australia [in] October 2011 on a [Student] visa. He initially commenced a foundation course in [Discipline 1] at [University 1]. The applicant did not successfully complete the course having failed one subject. He then returned to Sri Lanka for a period of 6 month to spend time with his then girlfriend, [Ms A] and family.

9.In 2013 the applicant was granted a [Student] visa. He returned to Australia and completed the remaining subject in the foundation course. In 2014 he enrolled in and completed a Diploma of [Discipline 1].

1. In 2015 the applicant enrolled in second year Bachelor of [Discipline 1] at [University 1]. The applicant’s evidence was that he began to struggle with his studies for a number of reasons. He stated that he experienced depression and anxiety and had suicidal thoughts. The applicant stated that he sought help from student counsellors between 2015 and 2017.

2. In 2016 the applicant married [Ms A] and on 18 October 2016 sponsored her as an entrant on his [Student] visa. [Ms A] arrived in Australia [in] October 2016. The applicant’s current Student (subclass 500) visa was granted on 9 March 2017 and includes [Ms A] as a dependant.

3. [In] August 2018 the department was notified that the applicant had been charged and convicted of the following offences:

Court	Offence	Result
[Court 1] [May] 2018	Unlawful assault (2 charges) Contravene Family Violence Safety Notice (2 charges)	Aggregated 3 months imprisonment. Convicted community corrections order for 18 months. Order commences upon completion of imprisonment/detention term.
[Court 2] [August] 2017.	Unlawful assault [in] April 2017 Contravene Family Violence interim intervention order [in] April 2017.	Without conviction following a 12 month good behaviour bond.

1. The applicant was served a six month Family Violence Intervention order [in] December 2016 which stated that he must not commit family violence against [Ms A] who was the protected person at the time. [In] April 2017 the applicant breached the intervention order by violently assaulting [Ms A]. As such [in] April 2017 the applicant was served an Interim Intervention Order variant to the previous Family Violence Intervention Order.

2. [In] April 2018 the applicant was further charged with two counts of Unlawful Assault and Contravene Family Violence Safety Notice allegedly perpetrated by him [in] April 2018. The applicant was served with a further Family Violence Intervention Order [in] April 2018 in which [Ms A] was again the protected person. The Intervention order remains in effect until [April] 2019.

3. [In] May 2018 the applicant was convicted and sentenced to three months imprisonment by [Court 1] in relation the charges of Unlawful Assault and Contravene Family Violence Safety Notice. The applicant was released from prison [in] July 2018 and was ordered to undertake Community Corrections Order for 18 months following his release.

4. [In] August 2018 the applicant was found guilty of Unlawful Assault and Contravene Family Violence Interim Intervention Order by [Court 2]. The applicant was placed on a good behaviour bond without conviction.

5. For these reasons, the Tribunal is satisfied that the grounds for cancellation pursuant to s.116 (1)(g) and regulation 2.43(1)(oa) have been satisfied.

6. Regulation 2.43(1)(oa) states that the Minster may cancel a visa if the Minister is satisfied that the applicant has been convicted of an offence against the law of the Commonwealth, a State of Territory (whether or not the holder held the visa as the time of the conviction and regardless of the penalty imposed (if any)).

7. The applicant was charged with and convicted of two counts of each Unlawful Assault and Contravene Family Violence Intervention Order [in] May 2018 and sentenced to three month imprisonment with Community Corrections Order for 18 months upon his release.

8. The Tribunal acknowledges the applicant’s claim that he suffered from mental health issues which affected his behaviour and lead to the charges and his subsequent arrest and conviction. However, the fact that the applicant was sentenced to a term of imprisonment indicates the seriousness of the offences.

9. Accordingly, in circumstances that the applicant was convicted of an offence against the law of the Commonwealth, a State or Territory his student (subclass 500) visa is liable to be cancelled under s.116(1)(g) of the Act and regulation 2.43(1)(oa) of the Migration Regulations 1994.

10. 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

1. The applicant submitted that his visa should not be cancelled due to the fact that he had suffered from symptoms of depression and anxiety which had caused him to engage in substance abuse. He claimed that as a child he was ‘a bit abnormal’[2] with other kids. He claimed that while he was not antisocial, he did not like talking to people.[3] The applicant stated that in or about 2012 [Ms A’s] ex-boyfriend had spoken to him in an attempt to ruin their relationship. As a result, he started struggling mentally and escaped from the ‘unpleasant reality’ with alcohol and other substances. The applicant did not provide any evidence as to his mental condition prior to arriving in Australia.

   [2] Applicants statement dated 28 November 2018; AAT File 1835156 @ f17

   [3] ibid

2. The applicant provided various reports which indicated that he has been attending counselling services. The report from [a named counsellor] of [University 1] dated 16 March 2015 states that the applicant’s ability to perform academically was due to substance abuse, triggered by stress, symptoms of depression and anxiety and long distance relationship conflict which resulted in stress and substance abuse.

3. The applicant stated that he believed that his situation would improve following his marriage to [Ms A] and her arrival in Australia. However, his evidence was that the situation became worse due to the fact that they argued and he continued to take substances to escape the situation. The applicant said that this behaviour subsequently brought about the incidents which led to his arrest, conviction and imprisonment.

4. The applicant said that following counselling and medical treatment as well as having spent time in prison his metal health and life is generally improving. As part of his treatment the applicant said that he has abstained from alcohol and his mental status is much better.

5. In coming to the following assessment the Tribunal has taken into consideration the statements made by the applicant dated 14 November 2018 and 28 November 2018 together with the documentation provided to the Tribunal and his oral evidence. 

   The purpose of the applicant’s travel and stay in Australia

6. The applicant’s purpose of traveling to Australia was to undertake and complete a course of study. The departmental records indicate that the applicant arrived in Australia [in] October 2011 and has been on a lengthy academic pathway. He completed his foundation studies course on 12 June 2013 and Diploma of [Discipline 1] at [University 1] on 7 November 2014.

7. The applicant commenced a Bachelor of [Discipline 1] studies in 2015 but was granted a leave of absence on 28 August 2015 and obtained further leave from 11 April 2017 to 20 July 2017. The applicant then sought and obtained a leave of absence between [dates in] April 2018 and [July] 2018 as a result of being sent to prison for three months.

8. The applicant has failed several units in his Bachelors Course and has required more time to complete the course. His enrolments have been cancelled and he has re-enrolled on several occasions.  After being released for prison the applicant re-enrolled in his course commencing semester 2 of 2018. His evidence to the Tribunal was that he had passed three of his four subjects for that semester. However, the [College 1] student confirmation sheet provided by the applicant indicates that he had, in fact, only passed one of the four subjects. The applicant said that he was required to sit a supplementary exam in one subject and there had been a miscalculation of his marks in another. The applicant did not provide any evidence from the education provider of him being granted a supplementary examination or that there had been a miscalculation of his marks. However, a document by [College 1] dated 11 February 2019 (and provided by the applicant after the hearing) stated that the applicant is awaiting his final results which will be formalised by the end of February 2019. It also indicated that the applicant’s attendance for two subjects was 73% and 67% for his remaining subjects.

9. The applicant commenced his studies some time ago in 2011 and has had difficulty in completing the course in a timely manner. However, he appears to have continued his enrolment in his course and continued to study toward his goal of achieving an academic qualification in Australia. The applicant has failed a number of subjects and had several deferments over this time for the purposes of managing personal issues which have contributed to the significant delay in him completing the course. Accordingly, the Tribunal gives little weight to this consideration in the applicants favour. 

   The extent of compliance with visa conditions

10. The Tribunal is not aware of any instances of non-compliance regarding the applicant’s conditions. However, the Tribunal notes that the applicant’s delay in completing his studies has been significant. He has had several deferments resulting from his academic performance and personal issues. As such the Tribunal gives little weight to this consideration in the applicants favour.

    Degree of hardship that may be caused to the applicant or any family member

11. The applicant stated that he was previously unaware that he had mental issues which affected his behaviour and his ability to continue to study and communicate with people. In his response he said that he would turn to substances such a drugs and alcohol to escape from his situation. However, he says that since engaging a doctor and undertaken a program to address these issues his mental health has improved. The applicant provided a correspondence from [a health service] to verify that the applicant was engaged in drug and alcohol counselling. In addition, he claims to have successfully completed the second semester of his course in 2018. However, as referred to above a review of his results shows that he in fact failed three of the four subjects undertaken. 

12. The applicant claims that if he is returned to Sri Lanka he will not receive the treatment he requires and once again relapse into substance dependence. However, the country information indicates that the National Dangerous Drugs Control Board (NDDCB) in Sri Lanka is a Government Institution which aims to eradicate drugs from Sri Lanka. Amongst its major functions is the provision of treatment and rehabilitation of drug dependants.[4] The NDDCB operates treatment and rehabilitation centres throughout the country with greater focus in Colombo, Kandy, Galle and Gampaha districts. The centres provide counselling services and residential treatment facilities.[5] Accordingly, based on the available country information, the Tribunal finds that the applicant will be able to access the necessary treatment for his substance abuse in Sri Lanka. In any event, despite the Tribunals finding, the applicant may be able to apply for a alternative visa based on his claimed mental health condition.

    [4]National Dangerous Drugs Control Board, ibid

13. The applicant claims that if his visa is cancelled he will not have the opportunity to complete his studies which he has been working toward since 2011. In addition, if the applicant’s visa is cancelled, [Ms A’s] visa, as a dependant in the applicant’s visa, will also be cancelled. Nevertheless, [Ms A] may be eligible to apply for a visa on her own right.

14. While the Tribunal acknowledges that cancellation of the applicant’s visa will impact and cause hardship to both the applicant and [Ms A], for the reasons provided above it gives little weight to this consideration in the applicants favour.

    Circumstances in which ground of cancellation arose.

15. The circumstances upon which the cancellation of the applicant’s visa arose was as a result of him violently assaulting his wife, [Ms A] [in] April 2017 for which the applicant he was convicted and sentenced to three months imprisonment. The applicant is alleged to have perpetuated violence toward [Ms A] on numerous occasions since her arrival in Australia and was issued a Family Violence Intervention Order [in] December 2016 (two months after her arrival in Australia) which he breached [in] April 2017 and a further order breached again [in] April 2018.

16. The Tribunal accepts that the applicant has sought counselling but notes that the counselling  sessions are directed to his ‘mental health issues that have impacted on his overall well-being and ability to study effectively.’[6] The counselling sessions do not appear to directly address the issue of repeated violence towards his wife, [Ms A].   

    [6][6] Report of [name at] [College 1] dated 1 February 2019.

17. Therefore, given the applicant’s repeated violent behaviour toward [Ms A], leading to his conviction and imprisonment, the Tribunal gives no weight to this consideration in the applicant’s favour.

    Past and present behaviour of the visa holder towards the Department

18. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

    Persons in Australia whose visa would be cancelled under s.140.

19. The applicant’s wife, [Ms A] is a dependant applicant of the applicant’s and as such is liable for consequential cancellation of her visa under s.140 of the Migration Act 1958 (‘the Act”). [Ms A] is the victim of the applicant’s offending and is residing at a different address to the applicant. As a consequence of the cancellation of the applicant’s visa she will be able to apply for an alternative visa in her own right if she wishes to do so. As such, the Tribunal gives little weight to this consideration in the applicant’s favour.

    Whether there are mandatory legal consequences

20. In the event that the applicant visa is cancelled, he will be subjected to section 48 of the Act which provides that he can only apply for another visa if it is prescribed under regulation 2.12 of the Migration regulations 1994.

21. In the event that the applicant’s visa is cancelled he will become an unlawful non-citizen and, in the event that he does not voluntary depart, may be detained under section 189 of the Act and removed from Australia under section 198 of the Act. The applicant may also be affected by public interest criterion 4013 limiting the granting of a further temporary visa for a period of three years.

22. The Tribunal gives this consideration a little weight in favour of the applicant.

    Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

23. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision

    Other relevant factors

24. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

25. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Jason Pennell
Member