1909783 (Migration)

[2019] AATA 5184

1909783 (Migration) [2019] AATA 5184 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1909783

MEMBER:David McCulloch

DATE:15 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 15 July 2019 at 3:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – criminal conviction – attempted to remedy situation – victim does not support visa cancellation – offending out of character – intoxicated – remorseful – genuine student – hardship – psychological distress – long connection with Australia – financial loss – decision under review set aside

LEGISLATION
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 April 2019 made by a delegate of the Minister for Home Affairs 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 citizen of [China]. The visa that was cancelled was granted on 4 April 2016 expiring on 15 March 2020.

3. A Notice of Intention to Consider Cancellation of the visa (NOICC) was sent to the applicant on 6 March 2019. A response was provided on 2 April 2019. In the response that was provided by the applicant’s representative an extension of time was requested to provide further documents in the form of a psychologist’s report, letter of support from the victim, letter from the visa holder and a tuition fee statement. Whilst the extension of time was granted until 10 April 2019 no further information was provided in the time requested. The Departmental file shows that the further documents were received after the deadline of 10 April 2019. Those additional documents which comprise a letter of support from the victim in the matter and a psychologist’s report pertaining to the applicant have been considered as part of this application for review before the Tribunal.

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 10 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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 set aside.

   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. 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. A copy of the record of decision to cancel the visa has been provided by the applicant to the Tribunal. That decision indicates that according to a report provided by  [Police] the visa holder has been convicted of the following criminal offences [in] March 2019 at [Named] Court:

Court date	Charge date	Offences	Sentence	Court name
[March]	[November]	Intentionally	Intensive Correction Order
2019	2018	distribute   intimate Image  without consent	(Aggregate): 14 months commencing [in] March 2019 concluding [in] May 2020. Report by 4pm [in] March 2019.	[Named] Court
Supervision: 14 months commencing [in] March 2019 concluding [in] May 2020 supervised by Community
Corrections Service.
Community Service Work:
300 Hours.
[March] 2019	[November] 2018	Intentionally record intimate image without consent	Intensive Correction Order (Aggregate): 14 months commencing[in] March 2019 concluding [in] May 2020. Report by 4pm [in] 27 March 2019.	[Named] Court
Supervision: 14 months commencing [in] March 2019 concluding [in] May 2020 supervised by Community
Corrections Service.
Community Service Work:
300 Hours.

1. In the Tribunal hearing the applicant conceded that he had been subject to the criminal convictions above.

2. 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

3. 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’.

4. 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.

5. 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 PAM3. 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.

6. On the Departmental file is a [Police] Facts Sheet stating the alleged facts constituting the offence. The date of arrest is indicated as [November] 2018. The Facts Sheet indicates that the applicant had been in a relationship with the victim for about six months. As a result of the incident the applicant and the victim had separated. The applicant had an online [social media account]. The applicant is the only person with access to the [account].

7. Under the heading ‘Sequence 1: Distribute intimate images without consent’ it is alleged that in August 2018 the applicant and the victim had sex while under the influence of alcohol. During this encounter, the applicant took [numerous] images of the victim on his smart phone. These images were immediately uploaded to [social media] via the applicant’s profile. The victim did not consent to the uploading of these images and the applicant knew that there was no consent. The images depicted the victim and the applicant engaged in penetrative sex. The victim’s face is clearly depicted in [most] of the images. The applicant’s penis is depicted penetrating the victim.

8. Under the heading ‘Sequence 2: Filming a person’s private part’ it is alleged that between August and [October] 2018 the applicant photographed the victim while in the bathroom. The victim was in a state of undress wearing only underwear. The victim did not know the photograph was taken of her and did not consent to it. The image clearly depicted the victim with a visible [tattoo]. The victim was clothed in underwear and slippers only.

9. Under the heading ‘Sequence 3: Distribute intimate image without consent’ it is alleged that the applicant sent the above-mentioned photo via [his social media account] to a number of users following conversation requesting images. The victim was unaware of the image being sent and did not consent to it.

10. [In] November 2018 the victim was informed by friends as to the number of intimate images of her on the social media [site].  The victim discovered these images noting that posts were reposted from the applicant’s account.

11. The Facts Sheet makes reference to the victim complaining to police and a statement being provided by the victim with the victim claiming she did not consent to any images being posted. [In] November 2018 the applicant was interviewed by police. When asked about the [numerous] intimate images of the victim, the accused admitted to posting the images on [social media] and admitted to not telling the victim. In relation to the above detailed sequences two and three the applicant said that the pictures were not of the victim’s face. The applicant indicated that he took the photo and posted the photo to [social media] and did not have permission to take the photos.

12. The applicant provided the following response to the Department [in] January 2019 concerning his visa being cancelled:

    Thank you for your prompt response. I would like to provide my reasons with supporting documents for you to consider regarding my visa.

    Firstly, I must admit that I have made an honest mistake which has adversely affected the alleged victim, [Ms A], and I have apologised to her since this incident has occurred. In relation to the criminal charges imposed by the Police, I would like to emphasise that [Ms A] and myself together voluntarily attended the [Named] Police Station [in] November 2018, and I was cooperating with the Police at all times. I gave the Police all the materials which they had requested from me and I was completely cooperative during the interview.

    Secondly, I have maintained an amicable relationship with [Ms A] despite what has happened between us, and I have never threatened Ms [A] with physical violence, and Ms [A] does not perceive me to be a threat to her. I actually believe that I do not pose a risk to the safety of Ms [A], and there is no animosity between us.

    Thirdly, I have withdrawn the photographs/ images from the social media. There is no longer any image on [social media], and I regret to have put the images on [social media] without prior consent of Ms [A].

    Fourthly, I have lived in Australia as a student since 2012. I had studied hard since 2012 and there had never been any problems with my student visa. I had no previous criminal records and am a person of good and honest character. A copy of my recent academic result is attached herein. I have also asked some of my friends and teachers to provide me with character references and I will supply those documents to you when they are on hand.

    Finally, I have diligently built up strong ties in the Australian community through my studies and am committed to completing my studies in Australia. My parents and friends in China expect me to achieve some good results in my studies in Australia and if you decide to cancel my visa, it will completely destroy my future and result in both financial loss and loss of reputation for me and my family in China, thus a significant hardship for me and my future career. I would really hope to be able to complete my studies in Australia in the next couple of years.

    I much appreciate your kindness in determining this matter

13. The following submission, addressing relevant discretionary factors, was provided on 2 April 2019 on the applicant’s behalf in response to the NOICC:

    The purpose of stay in Australia

    The applicant came to Australia in October 2012 on a student visa at the age of [specified] years old. The applicant has been studding as a full-time student during all this time. The applicant had plan to continue his study in Australia on a path way to a bachelor degree.

    Given the fact that the applicant completed his high school education in Australia and the unique education system in China, it is virtually impossible to transfer his academic records to China to continue higher education in any shape or form. The costs both financially and socially to apply for higher education in other countries would prevent the applicant to continue higher education of similar level.

    Accordingly, Australia is the only place he could be able to continue to receive higher education. Extent of compliance with visa conditions

    We respectfully submit that the applicant has always complied with his visa conditions. The applicant is not aware of any previous breach to his visa conditions.

    Degree of hardship that may be caused to the visa holder and any family members

    We respectfully submit that the applicant will not be able to continue higher education and will be deprived of his opportunity for education, which in turn will have a devastating impact on his future success.

    The applicant arrived in Australia in October 2012 at the age of [specified] and has been residing in [City 1] primarily for the last six years. These are prime age in one person's growth in forming their social value and network. We respectfully submit that the applicant has formed close link with Australia socially and psychologically. Departure from Australia under these circumstances will have a significant impact on the applicant's future growth both psychologically and mentally.

    We further submit that the applicant came from an ordinary working class family from China. Both of his parents are employees working hard to support the applicant's study in Australia for the last six years. The family has spent [a large sum of money] during this time. Having the applicant returned home without a degree and without a chance for higher education will have significant impact on the parents psychologically and emotionally.

    In terms of financial hardship, the applicant has already made payment for tuition fees of his course and he will not be entitled for course fee refund if he is required to stop study and return to China.

    The circumstances of the criminal conviction

    The victim and the applicant have been in an intimate relationship for 6 months. In August 2018, the accused and the victim had sex while under the influence of alcohol. During this encounter, the accused took images of the victim on his smart phone. The accused uploaded these images to social media account vis his smart phone.

    Between August and October 2018, the accused photographed the victim a number of times and uploaded these images onto social media.

    [In] November 2018, the victim was informed of these posting. [In] November 2018, the applicant attended the Police station with the victim. During the interview, the applicant admitted that he did not obtain consent of the victim and uploaded these images.

    We submit that the applicant and the victim was in an intimate relationship and there was no harm to the community. We further submit that this is not an offence Involving violence.

    The applicant is only [a certain age] at the time of committing these offences. The applicant was not fully comprehensive of the offence and did not commit these offences for financial gain or motivation. The applicant has been cooperative with the Police during the course of investigation and is remorseful of his conduct. The community service assessment has also confirmed that the applicant has low risk of re-offending in future.

    We also submit that the victim has accepted the applicant's apology and has forgiven him for his conduct.

    Applicant's past and present behaviour towards the department

    We respectfully submit that the applicant has always been truthful and cooperative with the department. The applicant is not aware of any previous breach, notice or non-compliance with the department.

    Mandatory legal consequences to a cancellation decision

    We respectfully submit that the applicant is subject to community service order by the court. The applicant will not be able to service this order if his visa is canceled.

    Other factors

    The applicant does not have any prior criminal record and the applicant does not have any non-compliance of visa conditions in the past.

    The applicant has been in compliance with the bail conditions including no contact with the alleged victim and daily reporting to the [Police] station since release on bail on [in] June 2017.

    We enclose the following documents for your consideration:

    1)       Completed form 956

    2)       Fact sheet (as amended and submitted to court)

    3)       Sentence assessment report

    We also advise that the applicant is seeking extension in order to submit the following documents:

    a)       Psychological report

    b)       Tuition fee statement

    c)       Letter from Miss [A] (victim)

    d)       Self statement

    For the reasons outlined above, we are seeking the Minister not to cancel the visa.

14. The Sentencing assessment report includes the following. It indicates no prior criminal history of the applicant. The report indicates that the applicant stated that he was intoxicated during the commission of his first offence. The subsequent offences he could not explain satisfactorily, nor did he disclose that any substance use had influenced their commission. The applicant could not explain the commission of his offences other than being very stupid. It is indicated that the applicant was able to convey some insight into the impact of his offending on the victim, however was unable to offer a detailed account of his demonstrated remorse and embarrassment.

15. The applicant provided to the Department (not considered in the delegate’s decision) a letter dated 9 April 2019 from the victim. She indicates that she was in a relationship with the applicant between May and November 2018. She indicates that between August and October 2018 the applicant uploaded images of her to his social media without her consent. When the applicant was confronted by the victim in November 2018, the applicant realised that his conduct was harmful. He immediately apologised. At the victim’s request, the applicant attended police together with the victim to seek assistance in having the social media platform delete the images. Police decided to charge the applicant after revealing what had happened.

16. The victim has stopped seeing the applicant following police involvement. The victim is no longer angry about what the applicant did to her. The applicant has now realised the harm and pain it has caused her. The victim refers to the significant hardship the applicant will face if his student visa is cancelled. She asks that his visa not be cancelled and that the applicant be allowed to continue to study in Australia.

1. The applicant also provided to the Department (not considered in the delegate’s decision) a report dated 8 April 2019 from [a], psychologist. The report includes the following detail as to the applicant’s explanation for the events leading to the conviction based on uploading photographs of the victim whilst engaging in sexual intercourse:

   Mr. [B] reported the offence occurred following an evening socialising with friends at their [home]. Mr. [B] reported having drunk approximately three to four beers that night and stated that Miss [A] had consumed approximately three glasses of vodka. He stated that after their friends had left the home, Miss [A] and himself participated in consensual sexual intercourse whilst still under the influence of alcohol. Mr. [B] stated that during intercourse, he took explicit photographs of Miss [A] with his phone and instantly uploaded them to his [social media] site. Mr. [B] stated that he made significant errors ofjudgment due to being intoxicated by alcohol. Further, he reported that he acted impulsively in the moment and was unaware of his actions until he noticed the photographs on his [social media] account later, approximately two to three days later. Mr. [B] reported that he instantly deleted the photographs at this time, though later discovered they had been reposted and were still visible on the [social media] accounts of other users. Mr. [B] described himself to be extremely anxious and distressed at this point in time and felt immense remorse following his actions. He stated that Miss [A] was aware the photographs were uploaded and that she was upset, but pragmatic in wanting to have them removed from the site. He reported emailing [the relevant people] and attempting to contact them via phone to remove all photographs. Mr. [B] reported that in desperation to remove all photographs, as a couple, Miss [A] and himself approached the police station in order to seek help from officers. It was at this time that Mr. [B] and Miss [A] were individually interviewed by police and Mr. [B] was told by officers he was to have no contact with Miss [A]. Mr. [B] reported that throughout this time, he was concerned about Miss [A]'s wellbeing and did the best he could to diminish any harm the incident may have caused her.

   Mr. [B] was keen to seek professional help to better understand his actions. Currently, Mr. [B] feels extreme remorse for his actions and continues to attend treatment for better management of himself as he is committed to change.

2. The Tribunal notes that the report does not make reference to the circumstances described as sequence 2 and 3 as set out in the Facts Sheet outlined above (namely the applicant taking photograph of the victim’s private parts while in a bathroom and then uploading the photograph on social media).The report does not reveal any areas in which the applicant displays abnormal indicators in relation to psychological symptoms. The report indicates that the applicant has expressed much remorse for his offences. There is reference to the fact that the applicant would face hardship if he had to return to China.

3. It is indicated that the hardship for the applicant in having to return to China is exacerbated by the young age at which he came to Australia. The applicant has spent most of his adolescent developmental stage in Australia. An academic study is cited which refers to the difficulty of individuals adjusting to their home country in such circumstances. The view is expressed that if the applicant were to return to China without finalising his studies he would become significantly distressed due to the segmentation of his education. Allowing the applicant to complete his education in Australia will allow him to conclude the chapter of his student life in Australia and allow him to transition to the next stage, commencing his career in his homeland.

4. It is submitted that given that the applicant completed his secondary studies in Australia his chances of obtaining tertiary studies in China have diminished. This would impede the applicant in finding employment in his preferred line of work. These factors would cause significant long-term psychological distress for the applicant. It is concluded that if the applicant were to return to China prior to finalising his education it will cause him significant psychological hardship and distress that would impact on his future life and state of mind.

5. In the hearing, the Tribunal asked the applicant for his explanation, when it did not appear that he was drunk, for the offences outlined in sequence two and three. In response, the applicant indicated that he did not realise that the images would have the public accessibility that they in fact did.

6. The applicant told the Tribunal in the hearing that he had made a very significant mistake which he very much regretted. He did all he could to seek to redress the situation as much as he could by going to police with his girlfriend to assist with removal of the images and making significant efforts himself to contact the social media site which eventually did remove the images from its site.

7. The Tribunal discussed with the applicant in the hearing his study history in Australia. The applicant arrived in Australia in 2012 and undertook [specified years] here. He thereafter undertook tertiary foundation studies and ILETS examination preparation and an English course. The applicant explained to the Tribunal that his desire was to undertake a [Subject 1] degree but there was a mix-up with the institution he applied to. The applicant ended up commencing a Diploma of [Subject 2] in October 2017. He left this course in November 2018 because of circumstances surrounding the charges against him. It was indicated in the hearing that the delegate had referred to the fact that the applicant had not reached the 80% attendance requirement by about 2% in this course. The applicant explained that this was because he had a [medical] condition for which he was being treated which he thought required him avoiding contact with other people.

8. Following this point, there were interruptions to his ability to study because of significant reporting obligations to police which lasted until March 2019. The applicant indicated that his parents has dissuaded him from continuing with [Subject 1] studies and to pursue [Subject 3] studies because this is better for his career prospects. The applicant has been studying and continues to study a Diploma of [Subject 3] since [April] 2019.

9. The Tribunal assesses relevant discretionary factors, most particularly the circumstances surrounding the offence and contact with police and the hardship to the applicant if the visa remains cancelled.

10. The Tribunal takes as adverse to the applicant the criminal convictions and very significant breach of the victim’s privacy and considerable negative personal consequences for her. The distribution of these very personal images can negatively impact on self-esteem, mental health, physical well-being and relationships with friends, family and intimate partners. There can also be negative effects on study and work performance.

11. The Tribunal is persuaded on all the evidence including the applicant’s evidence and demeanour in the hearing that he is very remorseful for his actions and has done everything that he can to ameliorate the distribution of the images.  Alcohol affecting one of the convictions in not overly mitigating and does not excuse the events relating to the other conviction.

12. However, the Tribunal considers that it is significantly relevant that the victim is supportive of the applicant and has made a statement to the effect that the applicant should not be further punished by having his student visa cancelled.  The applicant has been convicted with a punishment imposed.  He has also had to live with considerable uncertainty concerning the future of his student visa.

13. The Tribunal also considers that weighing in the applicant’s favour is the fact that the prosecution of the matter only occurred because the applicant was attempting to remedy the situation. The Tribunal accepts that the police were initially contacted by the victim and the applicant because they wanted assistance in having the images removed from the social media site. This demonstrates positive intentions after the events themselves. There does not appear have been a pressing for a prosecution in the matter by the victim.

14. While there have been some breaks and non-completion of the applicant’s studies in Australia since he completed year 12, the Tribunal is satisfied that the applicant has been acting as a genuine student during his time in Australia. The Tribunal accepts that the applicant currently is studying and has an intention to complete a [Subject 3] course.

15. The Tribunal accepts that there would be very considerable hardship to the applicant if the visa remained cancelled.  The applicant has been in Australia from the age of [specified], his formative years, and the Tribunal considers that he has a desire to continue with his studies in Australia and return to China with a tertiary qualification. Particularly given the length of the applicant’s connection with Australia, having to return to China without any tertiary qualifications will be a significant hardship. The Tribunal is also prepared to accept that there will be hurdles in the applicant immediately being able to undertake tertiary studies in Australia as a result of his high school qualification being gained in [State 1] not China.

16. The Tribunal accepts that there will be wasted financial resources and effort and family disappointment if the applicant has to return to China without tertiary qualifications.

17. These are the relevant discretionary factors.

18. In summary and conclusion, the Tribunal takes as serious the offences committed by the applicant and the betrayal of his former partner. However, the former partner, the victim, does not support the cancellation of the applicant’s student visa. Significantly, the charging and conviction of the applicant is a product of the applicant wanting to do the right thing in approaching police to seek assistance in securing removal of the images. The Tribunal considers that there will be significant hardship to the applicant if the visa remains cancelled, particularly given his long period in Australia since his formative years and his desire to return to China with an Australian tertiary qualification.  The applicant has been acting as a genuine student during his time in Australia.

19. On balance, the Tribunal determines that the matters adverse to the applicant are outweighed by matters in favour of the visa not been cancelled.

20. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    David McCulloch
    Member