1902579 (Migration)

[2019] AATA 3148

1902579 (Migration) [2019] AATA 3148 (4 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902579

MEMBER:Jason Pennell

DATE:4 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 4 April 2019 at 12.47pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – risk to health, safety or good order of the Australian community – charged with sexual offences – opportunistic and predatory nature of alleged offences – evidence indicates non-acceptance of responsibility for actions – focused on career prospects – can pursue similar studies in home country – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48,116(1)(e)(i), 119, 140, 189, 198
Migration Regulations 1994, Schedule 2, conditions 8202, 8202(3)(a), 8202(3)(b), rr 2.43(1)(oa), 2.12, public interest criterion 4013

CASES
Gong v MIBP [2016] FCCA 561
Krummrey v MIAC (2005) 147 FCR 557
Shi v MARA (2008) 235 CLR 286
SZBEL v MIMIA (2006) 228 CLR 152
Tien v MIMA (1998) 89 FCR 80
Wen Bi Dai v MIAC (2007) 165 FCR 458
Zhang v MIAC [2007] FMCA 1855

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 January 2019 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 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, namely women. 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 2 April 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)(e)(i). 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.

Applicants Background

6.In this case the applicant was born on [date] in [Country 1]. He is a citizen of [Country 2]. Prior to traveling to Australia the applicant had lived with his family in [Country 1] his whole life. The applicant’s family remains living in [Country 1] where his father is a [business] owner and his mother is engaged in home duties. The applicant has [siblings].  In addition to his immediate family the applicant has other family living in [Country 1] including his father’s [relatives]. The applicant’s father’s siblings all live in [Country 2] and his mother’s brother [is] [a Country 3] citizen and lives in [Country 3].   

7.The applicant attended and completed his schooling at [a named school in] [Country 1]. The applicant claims that in his final year he received 89% and was Sports Captain. The applicant provided references from several of his teachers at the [School] in which he was described as a hardworking student.[1] The applicant played in the school [sport] team from grade 8 and was Captain of the [Country 1] Under 19 [sport] team [details deleted]. The applicant also provided copies of Certificates of Participation from the [Country 1] [sport] Centre as a member of the [Country 1] Under 19 [sport] team.[2] 

[1] Department of Home Affairs file No [deleted] @ f 73-81

[2] Department of Home Affairs file No [deleted] @ f81-84

8.The applicant claims to be goal orientated and that he has a lot of things he wishes to achieve in life. In particular, he stated that it was his goal to become a professional [sportsperson] and to pursue a career in the area of sports administration, preferably within the sport of [sport].[3] As a result the applicant applied to study a Diploma of Sport Development and a Bachelor degree in Sports Management at [University 1] with the aim of returning to [Country 1] to work for the [Country 1] [sport] Centre to improve [a certain sport] in [Country 1].[4]

[3] Statutory Deceleration [applicant name] dated 22 January 2019 @ [5]

[4] Ibid

9.The applicant arrived in Australia on a Student (subclass 500 Visa) [in] July 2018 and commenced his Diploma course in or about July 2018. The applicant has not worked in Australia with his living expenses and tuition fees were being paid by his parents. 

10.As soon as he arrived in Australia the applicant became involved in sport and in particular [a certain sport]. He claims that he played [sport] for [teams] and that he soon received verbal offers to play for several [sport] clubs including [name] [sport] Club, [name] [sport] Club, [name] [sport] Club and [name] [sport] Club. The applicant states however that he commenced playing for the [name] [sport] Club in or about August 2018.[5]

[5] Statutory Deceleration [applicant name] dated 22 January 2019 @ [8]

11.The applicant claims that he was a good student and is looking forward to keeping up his good academic progress. He stated that he will complete the Diploma of Sport Development after his second semester and is looking forward to commencing the Bachelor’s Degree in Sport Management.[6]

[6] Op Cit @ f [10]

Does the ground for cancellation exist?

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

12.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.[7]

[7] Gong v MIBP [2016] FCCA 561, at [41]

13.The expression ‘good order of the Australian community’ is not defined in the Act. However, in Tien v MIMA (1998) 89 FCR 80 the court considered an earlier version of s.116 (1)(e), in which it held[8] 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.

[8]  Tien v MIMA (1998) 89 FCR 80 at 94

14.By a Notice of Intention to Consider Cancellation under section 116 of the Migration Act 1958 dated 8 January 2019 the applicant was informed that the department had received information from the [State 1] Police that he had been charged with the following offences (the offences’) :

Court	Date	Offence	Outcome
[City 1] Magistrates Court	[date] October 2018	Rape (4 counts), Sexual assault; and Visually capture of genital or anal region.	Pending: Committal Mention to be conducted on [date] April 2019.

15.As a result of the charges that applicant was released on bail. The applicant was due to appear at the [City 1] Magistrates Court for a committal mention on [date] March 2019, however, the applicant advised that the committal mention had been adjourned to [date] April 2019. The Court Services [State 1] website confirms that the applicant’s committal mention is currently listed for [date] April 2019.

16.It is alleged that on [date] October 2018,[9] the applicant attended a nightclub in [City 1] with friends for a birthday celebration. During the course of the evening he meet a female (‘the victim’) at the nightclub who was there attending the end of year 12 celebrations. Its alleged that the victim had that she had alcoholic several drinks before arriving at the nightclub and at the venue. In addition, it’s alleged that she consumed several more alcoholic drinks that the applicant had purchased for her at the venue.

[9] Summary of Offences; Department of Home Affairs file No [deleted] @ f18.

17.It’s alleged that in the early hours of [date] October 2018 the applicant offered to drive the victim home which she accepted and she left with him and his friends. However, rather than driving her home the applicant drove the victim to his student accommodation.  After her further request to be driven home, the applicant suggested that she sleep for half an hour beforehand. As a result, she lay down on the bed and passed out.

18.Its further alleged that sometime later the victim woke up to find the applicant having sex with her. Due to her level of intoxication she was unable to move and she passed out again. She alter awoke and contacted one of her friends informing them that she had been raped. The applicant and the victim then left the apartment building and the applicant drove the victim home.

19.The [State 1] Police were subsequently notified of the incident and the applicant was arrested. The applicant’s mobile phone was seized and it is alleged that it contains relevant images of the offending. In addition, the applicant’s [Country 2] passport was seized and is currently held by [State 1] Police.

20.At the hearing the applicant admitted that he had been charged with the offences but said that he disputed the charges and that he would be proved innocent at trial.

21.Sexual offences in [State 1] are generally defined pursuant to [a particular Act]. Generally, sexual offences are defined as a  sexual activity that a person has not consented to, and it can refer to a broad range of sexual behaviors that make the victim feel uncomfortable, frightened or threatened. Sexual offences can include rape, incest, indecent offence, child sexual offence and sexual molestation.[10]

[10] [State 1] Police website; [deleted]

22.The law states both parties must freely agree to the sexual act in order for there to be consent and it also outlines a number of circumstances by which someone is automatically considered unable to give consent, including being drunk, drug affected, asleep or unconscious.[11]

[11] ibid

23.The Australian Institute of Family Studies[12] reports that the consequences of sexual assault can include significant and potentially long lasting trauma to the victim. Psychological and emotional effects include feelings of low self-esteem, self-blame, guilt, shock, confusion and denial, self-harm, attempted suicide and post-traumatic stress disorder. The Physical effects include chronic diseases, headaches, irritable bowel syndrome and eating disorders. In addition it may affect the victim’s relationship including family relationships, disrupt or affect a victim’s work life, leisure activities and community involvement.

[12] actions by the applicant as alleged demonstrate behavior of an opportunistic and predatory nature. The applicant’s actions toward the victim as alleged are calculated and premeditated and display a complete disregard for the safety and wellbeing of a person vulnerable to his actions. Accordingly, it indicates that the applicant’s presence in Australia is, or may be, a risk to the safety of the Australian community or a segment of the Australian community, namely women.

25.As such the Tribunal is satisfied that the grounds to consider cancellation of the applicant’s student visa (subcalss500) exist under section 116(1)(e)(i) of the Act.

s.116(1)(g) - prescribed ground

26.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)(oa) is relevant is relevant.

27.When considering a decision to cancel a visa under s.116, it is not open to the Tribunal on review to consider if a visa could have been cancelled under a different power (for example s.109 of the Act). However, the Tribunal is not limited to the particular issues considered by the delegate.[13] For example, it has been held that on the review of a decision to cancel a visa under s.116(1)(b) for breach of condition 8202(3)(a)[14] it was open to the Tribunal to affirm the decision on the basis of breach of condition 8202(3)(b).[15] The Court rejected the contention that the Tribunal was limited to the issues that had been raised in the s.119 notice of proposed cancellation.[16]

[13] SZBEL v MIMIA (2006) 228 CLR 152.

[14] (80% attendance requirement)

[15] (academic result)

[16] Zhang v MIAC [2007] FMCA 1855 (Cameron FM, 25 September 2007) at [16]-[18]. Note that the discussion of condition 8202(3)(b) is no longer reliable in light of the Full Court’s decision in Wen Bi Dai v MIAC (2007) 165 FCR 458.

28.In Krummrey v MIAC[17] the grounds for cancellation considered by both the delegate and the Tribunal were those in s.116(1)(a) and (b). However, the Full Federal Court accepted that it would (theoretically) have been open to the delegate, and on review the Tribunal, to have considered cancelling the visa in pursuant to s.116(1)(g) and r.2.43(1)(i). Their Honours observed that neither the delegate nor the Tribunal gave any consideration to those provisions and that it could not be known whether the Tribunal would have exercised its discretion to cancel in reliance on s.116(1)(g) in the same way as it purported to exercise its discretion under s.116(1)(a). The Court rejected the submission that the Tribunal was to be understood to have unwittingly exercised jurisdiction to which it did not direct its attention. It was not suggested that the Tribunal could not consider s.116 (1)(g) because the delegate did not do so and that issue was not expressly considered. Therefore, it appears that the Tribunal is not limited to the particular ground or grounds considered by the delegate, and/or those described in the s.119 notice.

[17] (2005) 147 FCR 557.

29.A related issue is whether the Tribunal, when considering whether a ground for cancellation exists, is limited to consideration of the facts and circumstances as they existed at the time of the primary decision, or whether it is obliged to consider the facts and circumstances at the time of its own decision. As a general rule, unless there is some temporal element in the relevant legislation that confines the Tribunal’s consideration to the circumstances as they existed at the time of the primary decision, information about subsequent conduct and events will be relevant. To determine whether there is a temporal element of that kind, the precise nature of the decision under review must be closely considered.[18] In the case of cancellation decisions under s.116, the relevant time at which the facts are to be assessed on the review may depend on the precise terms upon which the visa was cancelled.

[18] See Shi v MARA (2008) 235 CLR 286.

30.In this case, the applicant’s visa was cancelled under s.116(1)(e)(i) on the basis that the applicant 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, namely women. However, in circumstances were the applicant has been charged with the offences against the laws of the State his visa may also be cancelled under s.116(1)(g) of the Act. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations) and in this case r.2.43(1)(oa) is relevant.

31.The relevant time for considering whether a ground for cancellation exists is at the time of the Tribunals own decision. In this case, the applicant remains charged with the offences with a committal mention having been set down for 18 April 2018. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) does exist and as such the power to cancel the applicant’s visa does arise under this section. However, 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

32.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’.

33.For the purposes of this decision the Tribunal has taken into account the applicants Statutory Declaration dated 22 January 2019 the submission by the applicants representative dated 22 January 2019 the various certificates, references and email correspondence provided by the applicant together with his oral evidence. 

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

34.The applicant’s purpose of traveling to Australia was to undertake and complete a course of study. The applicant arrived in Australia [in] July 2018 and commenced his studies for Diploma of Sport Development at [University 1]. It is the intention of the applicant to recommence his studies and complete a Bachelor Degree in Sports Management at [University 1].

35.The applicant has completed the first semester in the Diploma course and generally complied with the conditions of his visa. The applicant provided a reference [from] [University 1] dated [date] January 2019 which describes the applicant as ‘a highly motivated intelligent student.’ Accordingly, the Tribunal gives some weight to this consideration in the applicants favour. 

The extent of compliance with visa conditions

36.The Tribunal is not aware of any instances of non-compliance regarding the applicant’s conditions. As such the Tribunal gives some weight to this consideration in the applicants favour.

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

37.The applicant states that it is his dream to play [sport] professionally and to have a career in the administration of the game.  He says that if the delegate’s decision is affirmed and his student visa is cancelled he will be denied obtaining the necessary qualifications to pursue a career in [sport]. His evidence was that there was nowhere else he could go. He claimed that Australia is the only country which provides the appropriate course for him to pursue his career. The applicant did not provide any independent evidence to support this claim.  

38.While the Tribunal concedes that in the event the applicant’s visa is cancelled he may be prevented from completing his studies here in Australia, it does not accept that he will be prevented from pursuing a career in [sport] as claimed. The Tribunal accepts that if his visa is cancelled he may be delayed or even prevented from obtaining his education and pursuing his chosen career in [sport]. However, the Tribunal does not accept that by failing to complete his chosen course in Australia he will be prevented from pursuing a career as a player and as an administrator of the game. It is accepted by the Tribunal that a Sports Management qualification from [University 1] will help the applicant to pursue his career goals, however, it is in no way a guarantee that he will obtain a position in his chosen career. In addition, despite the applicants claim to the contrary, there does not appear to be any reason why the applicant would not be able to reach the same goal of playing [sport] professionally and working for the [Country 1] [sport] Centre with a qualification from a local University in [Country 1]. For example there does not appear to be any reason why a person could not obtain a position as sought after by the applicant by obtaining a qualification from a local [Country 1] University, such as [name] University,[19] [name] University[20] and [name] University[21] in Business Administration, Marketing, Accounting and Public Administration.  

[19] [Name] Universitywebsite; [deleted]

[20] [Name] University Website; [deleted]

[21] "[name] University | Ranking & Review". [websites deleted]

39.In addition, the applicant claimed that he would suffer great embarrassment and shame in the eyes of his family in the event he was forced to return to [Country 1] as a result of his visa being cancelled. He explained that only his father and Uncle in [Country 3] currently knew of the charges against him. His evidence was that his mother and siblings were not aware of the charges and that if he returned to [Country 1] he would be subjected to embarrassment and shame as a result of not being able to complete his studies.  While the Tribunal accepts that he will suffer such embarrassment and shame, for the reasons described above it does not accept that it will prevent him from pursuing his career as claimed.

40.Nevertheless, the Tribunal accepts that if the applicant’s visa is cancelled he will suffer some hardship as described to the Tribunal by having to return to [Country 1] without having completed his chosen course. As such, it gives some weight to the hardship the applicant may suffer in the event that his visa is cancelled in making its decision.

Circumstances in which ground of cancellation arose.

41.The circumstances upon which the cancellation of the applicant’s visa arose were as a result of him being charged with the alleged offences as described above.

42.The applicant claims that he is not a risk to a risk to the health, safety or good order of the Australian community or a segment of the Australian community, namely women due to the fact that the offences are against a single person and not the broader community. In addition he claims that the offences have not been tested in a court of law. The applicant claims that he is innocent until proven guilty and as such the visa should not be cancelled until there has been a determination as to his guilt or otherwise by the Court. The Tribunal notes that at this time a committal mention has been listed for [date] April 2019. The applicant states that he has been informed by his legal counsel that a hearing will not be listed for approximately 10 months.  

43.The applicant’s evidence was that he was granted bail on [date] December 2018 and indicates that the Magistrate does not consider him a risk to the Australian community. In addition he states that from the time of the offence until he was arrested in December 2018, he did not commit any offence.

44.The test imposed under s.116 (1)(e)(i) of the Act only requires that the Tribunal considers that the person 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. The tribunal notes that the prosecuting authorities have investigated the circumstances of the offending and determined that there is a proper basis to bring serious charges against the applicant. The evidence referred to in the summary statement includes CCTV footage, evidence for the applicants mobile phone and a number of witness statements.

45.In this case the applicant evidence before the Tribunal focused on his opportunity and ability to continue to play [sport] and to engage complete his studies for the purposes of advancing his career. While the Tribunal acknowledges that the applicant has exercised his right to remain silent concerning the offences, his evidence to the Tribunal indicates that he does not have any remorse for his actions surrounding the alleged offences and as such he did not comprehend the severity of the offences with which he has been charged. In circumstances where the alleged offences demonstrate behavior of an opportunistic and predatory nature, the applicant’s evidence indicates that he had not accept any responsibility for his actions or the circumstances in which the alleged offences occurred.   The calculated and premeditated nature of the alleged offences and the applicant’s evidence focusing on his career prospects as a [sportsperson] and sports administrator displayed a complete disregard for his actions toward the victim as a vulnerable person.

46.Therefore, given the sever nature of the alleged offences, the fact that they were occurred in such an opportunistic and predatory manner against the victim in a vulnerable condition, the Tribunal considers that the circumstances by which the grounds arose were not beyond the applicants control. Accordingly,  the Tribunal  gives no weight no weight to this consideration in the applicant’s favour.

Past and present behaviour of the visa holder towards the Department

47.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.

48.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

49.Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Whether there are mandatory legal consequences

50.In the event that the applicant’s 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.

51.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.

52.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.

53.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

54.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. 

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

DECISION

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

Jason Pennell
Member