1903646 (Migration)

[2019] AATA 1877

1903646 (Migration) [2019] AATA 1877 (20 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903646

MEMBER:David McCulloch

DATE:20 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa.

Statement made on 20 May 2019 at 2:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 574 (Postgraduate Research Sector) – ground for cancellation – convicted of an offence against a law of a State – assault with act of indecency – conviction set aside by District Court – found guilty of offence without proceeding to conviction – Court’s power operates prospectively – consideration of discretion – serious adverse act towards a member of the Australian community – lack of remorse – degree of hardship – decision under review affirmed

LEGISLATION
Crimes (Appeal and Review) Act 2001 (NSW), s 20
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 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 11 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Iran born on [date]. The visa that has been cancelled was granted on 6 January 2015 expiring on 13 March 2019.

3. A Notice of Intention to Consider Cancellation of the visa (NOICC) was sent to the applicant on 14 January 2019. On 31 January 2019 a submission was provided on behalf of the applicant along with supporting documents.

4. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 8 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. 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

8. 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). 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?

9. 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) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

10. The submission provided on behalf of the applicant in response to the NOICC acknowledged that the applicant was convicted [in] December 2018 for an offence against the law of New South Wales. The applicant was convicted of assault with act of indecency, Crimes Act 1900 (NSW), with a penalty of a Community Correction Order, two years.

11. In the Tribunal hearing the applicant acknowledged that he had been convicted of this offence in the first instance. On appeal, the applicant had been found guilty of the offence without proceeding to conviction and a Conditional Release Order was imposed.

12. In the context of the relevant provisions in the Crimes (Appeal and Review) Act 2001 (NSW) and the [District Court] order provided by the applicant, it appears that the District Court Judge has exercised the power under s.20 to set aside the conviction and the sentencing order of the Local Court, and in lieu thereof made new orders not to convict the applicant and impose a new sentence. However, the exercise of the power to set aside under s.20 operates prospectively, which means that the new order and the setting aside of the conviction does not render the effect of the sentence up to the time of the appeal a nullity. Therefore, the applicant has been convicted even though that conviction has since been overturned.

13. The applicant and his representative have acknowledged that there has been a conviction and that the ground for cancellation is made out.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department of Home Affairs’ Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

17. On the Departmental file is a Court Attendance Notice relating to a required court attendance of the applicant on 4 December 2018. The Notice details two offences, the first being ‘commit act of indecency’ and the second being ‘assault with act of indecency’. The Tribunal notes that the applicant was convicted in the Local Court on the second offence but not the first offence. On the Departmental file is a New South Wales Police ‘Facts Sheet’ outlining the alleged facts leading to the charges. The relevant date of arrest is [in] June 2017.

18. The Facts Sheet indicates that the applicant moved from Iran to Australia about two years previously and is currently on a student visa. The applicant’s mother, father and brother reside in Australia. The applicant lives with his mother and family. The applicant works casually on the weekends [and] studies full-time at [University 1].

19. The victim is a property manager for a real estate firm. Part of her duties involve quarterly house inspections of properties that are rented through the firm.

20. The Facts Sheet recites that on the day in question, [in] June 2017, the victim went to premises where the applicant resided to undertake an inspection of the property. The applicant let the victim in and undertook her inspection. The applicant had completed her inspection upstairs and went to walk down the stairs to the downstairs area. The applicant stood on the stairs blocking the victim from being able to freely walk down the stairs. The applicant then moved towards the victim causing the victim to move backwards. The applicant placed his hands on the victim’s shoulders. The applicant then moved his hand from the applicant’s right armpit and began to run his left hand down towards the victim’s left buttock while making firm contact the whole time. The victim felt that the contact was very sexual in nature and felt very uncomfortable. The victim pushed the applicant’s hand away as it reached her right buttock. The victim was in shock and did not say anything to the accused at this point in time.

21. The applicant told the victim she was beautiful and tried again to take hold of the victim’s shoulders. The victim kicked the accused in the groin and said ‘get the fuck away from me, don’t fuckin touch me’. The applicant bent over in pain but continued to obstruct the pathway to the stairs. The victim tried to get around the applicant however he counteracted her movements preventing her from being able to leave the property. The victim pleaded with the applicant to let her go and told the applicant that there were people waiting for her in her car. The victim threatened to kick the applicant in the head and the applicant said that the victim would pay.

22. The applicant then walked down the stairs and the victim saw her opportunity to leave and she ran out the door. The victim phoned a person (proposed as a witness) as soon as she got in her car. The victim drove back to work and spoke with this individual and her boss. Police arrived a short time later and a statement was prepared. The victim told police that she was very scared and believed she was going to be assaulted by the applicant.

23. Police attended the applicant’s home address but no one answered. [In] July 2017 the applicant and his solicitor attended [a specified] Police Station. The applicant refused to answer any further questions. The applicant did not wish to participate in an identification parade. The applicant was arrested and cautioned on the same day. The applicant refused to participate in an interview with police.

24. The submission in response to the NOICC dated 31 January 2019 on behalf of the applicant indicates that the applicant has always complied with visa conditions in Australia. He has devoted his time to work and study. He acquired a [qualifications] in [Country 1] and is currently enrolled in Australia in a [specified course]. The applicant will be disadvantaged if the visa is cancelled because he has completed 90 per cent of this course which he is expected to finish in June 2019. He has also spent a considerable amount of time and money on the course. Evidence has been provided from [University 1] that the applicant has completed 90 per cent of his course and is expected to finish in June 2019.

25. The applicant has no police record in [Country 1] and a Police Clearance Certificate is provided establishing this. The applicant on 7 March 2017 lodged an Onshore Protection visa application Subclass 866.

26. Documents are provided indicating a Notice of Appeal of the applicant’s conviction to the District Court. The appeal documents are on the basis that the applicant is not guilty. The Appeal Listing Notice indicates that the appeal has been listed for mention on 1 February 2019.

27. Provided in response to the NOICC were statements from four individuals who indicate that they know the applicant from his time in Australia. The references variously refer to the applicant being of good character, a person of integrity, organised, responsible, respectful, willing to help and hard-working. The applicant provided to the Tribunal a reference from a [Member of Parliament] thanking the applicant for his volunteer work.

28. Provided on behalf of the applicant was a submission to the Tribunal dated 6 May 2019, shortly before the Tribunal hearing. The submission repeats earlier submissions. It is acknowledged that there appears to be a ground to cancel his student visa. In relation to the appeal of the conviction to the District Court the applicant provides details of the outcome. It indicates that he is found guilty, but without proceeding to conviction and is directed into a Conditional Release Order for two years. The Tribunal notes that Conditional Release Orders replace good behaviour bonds.

29. The applicant insists that he is innocent and admitted to the offence because he was unable to employ the services of a legal representative. He approached Legal Aid but they were not able to assist.

30. The submission indicates that the applicant’s application for a protection visa was refused on 28 March 2019 and that he had lodged a review of this decision.

31. In the hearing, the Tribunal put to the applicant information from the Facts Sheet pursuant to the procedural requirements of s.359AA of the Act. The information was the indication in the Facts Sheet that the applicant physically assaulted the victim initiating sexually related contact with her against her will and causing her to react negatively including kicking the applicant in the groin. It is indicated that the victim told the applicant in no uncertain terms to get away. The victim was clearly very distressed by the conduct.

32. It was put to the applicant in the hearing that the information was relevant because, in light of the applicant being found guilty of the offence, it suggests threatening, dangerous and inappropriate conduct towards an individual in Australia. The consequence of relying on the information would be for the Tribunal to consider the circumstances leading to the conviction are adverse to the applicant in the exercise of the Tribunal’s discretion as to whether the visa should be cancelled. The fact the applicant behaved in this way could cause concerns that the applicant would behave similarly in the future.

33. In response, the applicant indicated that he did not commit the offence. He indicated that he did not physically assault the victim. The applicant denied that the victim kicked the applicant in the groin. The Tribunal asked if the applicant is saying that the victim made the incident up. The applicant indicated that this was the case.

34. In the hearing, the applicant indicated that whilst he had a lawyer during the Local Court proceedings he was confused about the proceedings and there was pressure to accept the verdict of the court. The applicant indicated that he did not have a lawyer for his District Court appeal because of the need for upfront payment.

35. The applicant indicated that there have been hurdles to him finishing his current [course] and that he will not finish in June 2019 as planned. The applicant indicated that he will still have a semester of this course to complete. The applicant indicated that a significant hardship which would exist if the visa remains cancelled will be his inability to complete this course and the waste of substantial resources in funding this course and living in Australia.

36. The applicant indicated that his desire is to continue to stay in Australia and work on other appropriate visas. This will be denied to him if the visa remains cancelled. The Tribunal accepts that the applicant will be denied the ability to apply for other visas onshore if the visa remains cancelled.

    The applicant has been found guilty of the offence, including on appeal. This tends to support the factual allegations made leading to the guilty findings. The claim by the applicant that none of the events as claimed by the victim actually occurred is not consistent with the guilty verdicts.

37. The Tribunal finds the contents of the Facts Sheet, particularly the fact that the alleged victim provided corroborating accounts as to the behaviour of the applicant immediately after the alleged events, as probative of the applicant engaging in the adverse conduct alleged.

38. The applicant being found guilty of the offence and the allegations set out in the Facts Sheet are matters which are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

39. The Tribunal accepts the applicant may experience not insignificant hardship as a result of his inability to complete his [course] and significant costs wasted in Australia in living arrangements and funding his studies. The Tribunal also accepts significant hardship if the visa remains cancelled in preventing the applicant remaining in Australia after completing his studies and pursuing other visa options to remain here.

40. The Tribunal accepts that the applicant has complied with all other conditions on his student visa. The Tribunal accepts that if the visa remains cancelled he will be an unlawful noncitizen. However, the Tribunal considers that the applicant would be eligible to apply for a bridging visa to make his status lawful as he makes arrangements to leave the country.

41. The applicant acknowledged in the hearing that he has lodged a protection visa application as to claimed fears in returning to Iran. The applicant indicated in the hearing that this was on the basis that he had changed his religion. The applicant acknowledged that the protection visa application had been refused by the Department and he was seeking a review by the Tribunal. As put to the applicant in the hearing, the protection visa process provides the appropriate avenue to seek to stay in Australia to avoid harm in Iran. Given that process which is being exercised by the applicant, the Tribunal would not consider Australia’s non-refoulment obligations as a significant discretionary matter as to the determination of the applicant’s entitlement to the student visa.

42. The Tribunal acknowledges that on appeal a conviction against the applicant was not recorded. Nevertheless, the applicant was found guilty of the offence.

43. The Tribunal considers that these are the relevant discretionary factors relevant in this matter.

44. In summary, the applicant has been found guilty of an offence involving indecent assault. The Tribunal acknowledges that the circumstances of the offence in the context of the penalty imposed is not of the most severe category in terms of indecent assault and other sexual offences. However, the conduct is seriously inappropriate and has clearly caused significant upset, trauma and fear to an Australian resident. The complete denial by the applicant as to the circumstances leading to the applicant being found guilty of the charge suggests no insight by the applicant as to his wrongdoing or contrition. That the applicant has engaged in such adverse behaviour raises questions in relation to his character and the potential for him to behave similarly inappropriately in the future. All of these matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

45. Weighed against this is the considerable hardship to the applicant if the visa remains cancelled. The Tribunal accepts that the applicant is on track to complete his [specified course] in which he has invested significant time and resources which will be wasted if the visa remains cancelled and the applicant is unable to complete his studies. The Tribunal also accepts that cancellation will deny the applicant the opportunity to other visa pathways to stay in Australia after the completion of his studies.

1. Weighing matters both adverse to the applicant and in his favour the Tribunal determines to exercise its discretion to cancel the visa. The applicant’s conduct was a serious adverse act towards a member of the Australian community. The Tribunal considers that the action of the applicant leading to the offence warrants the visa being cancelled notwithstanding the significant hardship to the applicant.

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

   DECISION

3. The Tribunal affirms the decision to cancel the applicant’s Subclass 574 Postgraduate Research Sector visa.

   David McCulloch
   Member