1916098 (Migration)

[2021] AATA 1784

1916098 (Migration) [2021] AATA 1784 (21 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1916098

MEMBER:Jennifer Cripps Watts

DATE:21 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 21 March 2021 at 3:40pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – applicant convicted of an offence – applicant unable to continue studies – compelling reasons – applicant and wife reconciled – variation made to the Apprehended Violence Order – completion of Masters degrees – decision under review set aside           

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 348
Migration Regulations 1994, Schedule 2 cl 500.611; Schedule 8, Conditions 8105, 8202; 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 18 June 2019 made by a delegate of the Minister for Home Affairs (the delegate) to cancel the visa of the first named applicant (the applicant) Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the Tribunal should exercise its discretion to set aside the cancellation.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act.  As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. On 20 June 2019, the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal by phone on 23 June 2020 to give evidence and present arguments.  The second named visa applicant, [the applicant’s wife], also gave oral evidence.  The case was considered suitable to be held by phone, balancing the interests of affording the applicant procedural fairness and restrictions in place due to the COVID-19 pandemic, which meant that there were no face to face in-person hearings being held at that time.  The Tribunal is satisfied that all who participated in the hearing could be heard and understood throughout the hearing.  There was occasional clarification sought, which is not unusual in migration hearings generally.  

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.

9. The applicant is a citizen of Bangladesh who arrived in Australia [in] July 2017 holding a Student (Subclass 500) Visa.  [In] February 2019, the applicant was convicted of common assault at [Court 1] and received a sentence of a 12-month conditional release order and supervision order.  An Apprehended Violence Order (‘AVO’) was also put in place until [February] 2021 to protect the applicant’s wife, [named], who was the victim of the assault.  Not long after, the conditions were varied so the applicant and [his wife] could resume residing in the same household together.

10. The applicant’s Subclass 500 visa that is the subject of this review was cancelled under s.116(1)(g) of the Act on 20 June 2019 and, on 24 June 2019 he applied for a Bridging Visa E (BE). The BVE was refused and, on 3 February 2020, the applicant applied to the Tribunal General Division (GD) for review of the decision. The Tribunal (differently constituted) remitted the decision to refuse the applicant’s related BVE [in] April 2020.

    Does the ground for cancellation exist?

11. 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. Essentially, that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory.

12. [In] February 2019, the applicant was convicted at [Court 1], in the state of New South Wales, of the offence of Common Assault (DV)-T2 and sentenced to a 12 month conditional release order to be supervised by the Community Corrections Service (CCO).

13. In April 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation of his visa, to which he responded in May 2019.  The applicant’s Subclass 500 temporary visa was cancelled on 18 June 2019.  There is evidence before the Tribunal, and it is not in dispute, that the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory as specified above.

14. Therefore, the Tribunal is satisfied that grounds exist to cancel the applicant’s visa under s.116(1)(g) of the Act because the prescribed ground for cancellation at r.2.43(1)(oa) of the Regulations applies to his circumstances. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

15. Following the Tribunal hearing, and before making a decision, on 15 December 2020 the Tribunal wrote to the applicant inviting him to provide further submissions or information that he wished the Tribunal to consider before a decision was made.  Further written submissions were received from the applicant’s registered migration agent and have been considered, together with other evidence and information provided earlier. 

16. The Tribunal has considered information contained in both the Department and Tribunal files, an earlier matter relating to this visa cancellation where a decision was made in the GD of the Tribunal, the oral evidence given at the hearing and any other matters considered to be relevant to the question of whether discretion should be exercised to set aside the decision to cancel of the applicant’s Subclass 500 temporary student visa made on 18 June 2019.

    Background

17. After being granted the student visa and travelling to Australia in 2017, the applicant, a citizen of Bangladesh, returned home and married the second named applicant, [named], [in] January 2018.  The applicant returned to Australia [later in] January 2018; [the applicant’s wife] followed later that year and first arrived onshore [in] September 2018.

18. Prior to the marriage, the applicant was granted the Subclass 500 visa that is the subject of this review on 3 July 2017 (which would have naturally ceased on 15 March 2020); the visa was cancelled on 18 June 2019 under s.116(1)(oa) of the Act because the applicant had been convicted of an offence in New South Wales. As a consequence, the visa of the applicant’s wife, the secondary applicant, [named], was cancelled by operation of s.140(1) of the Act. [The applicant’s wife] currently holds a bridging visa.

19. Following the cancellation of his student visa, on 18 June 2019 the applicant lodged the current review application with the Tribunal in the Migration Division.  He subsequently applied for a Bridging Visa E (BVE) relating to the cancellation of his student visa, which was refused [in] January 2020, and he lodged a review application for the decision refusing the BVE in the Tribunal’s GD..  The decision to refuse the BVE was set aside [in] April 2020 by the presiding member, [named]; a copy of the decision made [in] April 2020 relating to the BE has been provided by the applicant for the purposes of the review of the decision to cancel his Subclass 500 student visa.  It contains detailed and relevant information.

20. The applicant’s February 2019 conviction for assault arose from an incident that occurred in the early morning of [a day in] November 2018.  The New South Wales Police Facts Sheet, dated [that day], includes that the applicant was charged, under s.61 of the Crimes Act 1900, with Common Assault (DV)-T2 of his wife, [named].  He was sentenced to a 12 month Community Corrections Order in February 2019.

21. Following his appearance at a GD hearing, a decision was made [in] April 2020 to remit the matter for reconsideration, but was again refused.  Summarised here are some relevant facts and events:

    a.On the evening before the incident, the applicant and his wife dined out with [the applicant’s wife’s] sister, they had a disagreement on the way home, there was a later physical altercation where he ‘grabbed her (his wife’s) arms’ which left her with bruises.  The applicant and [his wife] bit each other.  The applicant also slapped [his wife] on the face with an open hand and she called the police.

    b.Subsequently, the applicant saw a psychologist and he and his wife also attended marriage counselling

    c.[The applicant’s wife] said that prior to and after the November 2018 offence, there had been no other violence

    d.An AVO was in place for a short period following the assault, but [the applicant’s wife] applied for a variation to the conditions so the applicant could live with her

    e.In February 2019, the applicant was convicted and sentenced

    f.On 5 April 2019, the Department sent the applicant a Notice of Intention to Consider Cancellation of his BE

    g.In May 2019 a response was received and in June 2019 the applicant’s student visa was cancelled.

22. After the incident in November 2018, the applicant moved out of the home the applicants shared as husband and wife and they lived apart for a short period of time due to AVO’s made.  However, on [the applicant’s wife’s] application [later in] November 2018, a variation was made to the AVO and, not long after, the applicant returned to live with her.  Next, in March 2019 the Supervision Order applied by the Court in the sentencing of the applicant was suspended when New South Wales Corrective Services assessed the applicant to be a low risk of further offending. 

23. It is noted, in the earlier GD Tribunal decision, relating to the refusal of the applicant’s bridging visa, that it was accepted the applicants’ relationship improved significantly after their participation in marriage counselling and the applicant taking medications for his depression, anxiety and marital issues as part of a mental health plan issued [in] April 2019.  The Tribunal accepts this.

24. This version of events relating to the assault was corroborated by the applicant and [his wife] at the scheduled Tribunal hearing in the applicant’s cancellation matter that is the subject of this review.

    Tribunal hearing for the cancellation of the applicant’s student visa

25. The applicants both gave oral evidence at the Tribunal hearing that is the subject of this review.  Their evidence was generally consistent with the evidence they gave in the earlier hearing in the General Division, and with each other, relating to the circumstances that led to the refusal of the applicant’s bridging visa, as it was at the later hearing relating to the cancellation.  The applicants gave clear, spontaneous and cogent evidence at the hearing for the student visa cancellation.

26. It is accepted that, other than the conviction in New South Wales in February 2019, evidence provided confirms that there are no other convictions recorded for the applicant in Australia or Bangladesh.  This appears to have been his first and only offence. 

    Consideration of discretion

27. 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’.

28. The Tribunal has considered information relevant to whether discretion should be exercised to set aside the decision cancel the applicant’s student visa and has referred to Departmental guidelines in reaching its decision.

29. The Department’s guidelines set out matters that as a matter of policy should be taken into account, where relevant, when considering whether to cancel a visa, whether temporary or permanent, under s 116. The circumstances of the case have been considered against the specified matters the Tribunal is required to take into account. The Tribunal has had regard to the oral evidence given at the scheduled hearing, and information given relating to the GD hearing and information contained in both the Department and Tribunal files.

30. In his oral evidence at the hearing the applicant confirmed, referring to previously provided written evidence, that he was on track to complete a double master’s degree until his Subclass 500 student visa was cancelled in 2019 but, without a visa, he has not been able to continue to study or complete the qualification.  At present the applicant has no study rights.  He says he wishes to recommence his studies and complete his qualifications.

    At the both Tribunal hearings, [the applicant’s wife] said that the argument she and her husband had in November 2018 came about because of her anxieties because she had only lived in Australia for a short time and was missing her family.  She said of the incident that her husband had not hurt her but had only been trying to restrain her.  To represent that the applicant did not hurt her does not appear to be borne out by the facts relating to the incident which included that the applicant grabbed [his wife’s] arms, causing bruising, bit her on the cheek and slapped her face with his open hand. The Tribunal is not inclined to accept that [the applicant’s wife] is in any way responsible for the assault on her, or that she provoked it.  The applicant was charged, convicted and sentenced for the assault..  In addition, it is noted that in the GD decision that it was accepted the applicant had ‘…expressed contrition and shame for his behaviour and said that, when reflecting on this incident, he had realised how he had hurt his wife and the issues he had’.

31. However, it is not insignificant that Corrective Services, only the month after the applicant’s assault conviction, suspended a court imposed supervision order, assessing him as being at a low risk of reoffending, and that the applicant, through counselling and medication has sought to address his issues.  The applicant and [his wife] gave evidence that they have attended marriage counselling together.  The applicant attended his General Practitioner to obtain a Mental Health plan, in April 2019.

32. At both Tribunal hearings, the applicant expressed contrition and remorse for his actions.  This, together with remedial steps he took after the incident in November 2018, satisfy the Tribunal that the applicant has made genuine attempts, with the support and involvement of his wife, to address his issues.  The applicant and his wife gave evidence that they have worked together, and with medical professionals, to improve their married relationship and say that there have been positive developments.  This is encouraging and indicates a mutual desire on the part of both the applicant and [his wife] to settle into a more harmonious married life together.

    The purpose of the visa holder’s travel to and stay in Australia

33. The applicant held a Subclass 500 student visa, which is a temporary visa for the purpose of enabling international students to study at an appropriate education provider and to reside in Australia temporarily for that purpose.  This was the purpose for the applicant’s travel to, and stay in, Australia when he arrived holding the Subclass 500 visa in 2017. The visa was granted for about three years, from July 2017 to March 2020.  At the time of application, the applicant was enrolled at [University 1] as a postgraduate.  He first completed a Postgraduate Qualifying Program with Concurrent English at [an institution] and then four units (equal to 40 credit points of a total of 160 to complete the course) of a Master of [Subject 1] degree in 2018.  The applicant then transferred to [College 1] and completed eight units of study in the combined program, a Master of [Subject 2] and Master of [Subject 3], that he was enrolled in. The Tribunal accepts that events since then, including the cancellation of the applicant’s visa and refusal of his bridging visa, have prevented the applicant from continuing with his intended studies. 

34. The Tribunal talked to the applicant at length at the scheduled hearing and is satisfied, although he is not currently enrolled because he has no study rights, that the applicant is very eager and committed to returning to his study in Australia as soon as possible once he is lawfully able to do so. 

    Whether the visa holder has a compelling need to travel to or remain in Australia

35. The applicant may be prevented from completing his post-graduate study in Australia because of the cancellation of his visa.  He appears to be about two-thirds of the way to completing his post-graduate study in Australia.  If he cannot complete the courses, the Tribunal is satisfied that the applicant would find it extremely difficult and expensive to recommence or complete a Master of [Subject 1] and Master of [Subject 3] elsewhere.   He gave oral evidence that he has only one year, or three trimesters left, studying at [College 1] before he completes the masters degrees.

36. The applicant has expressed remorse and contrition for the events surrounding his conviction and has taken positive steps to address his behaviour and build a better relationship with his wife.  On the evidence before the Tribunal, [the applicant’s wife] seems to be equally committed to both her marriage and supporting her husband to complete his post-graduate studies in Australia.  The applicant and [his wife] have already incurred significant costs in relation to the study, including tuition fees and the costs of living in Sydney.  The applicant is at a point, when he recommences study, where he will be in the final year of the course.

37. It is not essential that the applicant remain in Australia to finish his studies, as arguably he could engage in study elsewhere.  However, the Tribunal is satisfied that there are compelling reasons for the applicant to remain in Australia for the time it will take to finish his Masters degrees, which are offered concurrently at [College 1], over the next 12.  With units already completed, on the evidence he has given, the applicant will have an opportunity to complete the Master of [Subject 2] and Master of [Subject 3] in one year, or three trimesters as they are scheduled at [College 1].  Including his study at [University 1], the applicant appears to have considerably less than half of his studies to complete.

38. It has been accepted that [the applicant’s wife] has been the sole financial provider in the marriage during the period that the applicant has not had work rights.  It would be unfair to her, given her investment of emotional and financial support within the marriage for the purpose of enabling her husband to complete his post-graduate studies, to effectively suffer the negative consequences of cancellation, through no fault of her own, where they would both potentially incur additional costs for the applicant start over or study in another country. 

1. The Tribunal has given significant weight to the applicant only needing to study for another year, a relatively short period of time.  In the circumstances that are accepted at the time of this decision, on the basis that the applicant only has another 12 months of study to complete the qualifications he was enrolled in around the time his visa was cancelled, and with the not insignificant financial and emotional support that has already been provided by his wife, the Tribunal is satisfied that cumulatively this a compelling reason to set aside the decision to cancel the applicant’s visa.  That said, if the applicant had more than 12 months, or more than half of his study to complete, the Tribunal would not consider that the financial costs alone to be a compelling reason to set aside the cancellation. 

   The extent of the applicant’s compliance with visa conditions

2. Under s.116(1)(g) the Minister may cancel a visa if they are satisfied that a prescribed ground for cancelling the visa applies to the holder. The prescribed ground, in this case, is that the applicant has been convicted of an offence in New South Wales; r.2.43(1)(oa).

3. If an applicant satisfies the primary criteria and is granted the (Subclass 500) visa, cl.500.611 requires that certain conditions must be imposed.  Subclause 500.611(1)(a) specifies, among other conditions, mandatory condition 8105, which requires the holder of a student visa to work no more than 40 hours a fortnight during study periods.  The 40 hour fortnightly limit does not apply outside semesters, when applicants are on a scheduled break from their study.  It is detailed in the delegate’s decision that concerns were held that it appeared the applicant may have been non-compliant with condition 8105 while he held the visa; this was put to the applicant in writing by the Department, in the NOICC.  Essentially the concern was that the applicant was earning $700 a week working at a [business], seeming to indicate he worked more than 40 hours a fortnight.  This appears to be on the basis of information contained in the Police Facts Sheet dated [in] November 2018.

4. In response to NOICC that was sent putting this adverse information to him, the applicant said he had only worked up to 40 hours a fortnight during semester time, for [Business 1] in [a named suburb] as a cleaner.  He said he worked for the [first business] as well, but only during the semester break.  He says when he was arrested in November 2018, he was asked by the police if he had to go to work that day and told them that he did, because he was working at [the first business].  He says the police then asked how much he earned a week and he said $700.  The applicant, in his response to the NOICC, clarified that he meant that he earned $700 a week in total for both jobs during the semester break; $455 a week at [Business 1] and the balance at the [first business].  Essentially, he was asked two questions and claims that he answered them both truthfully and that the confusion arose because this was his total salary, including working for [Business 1], but the police did not ask him about work other than work he was doing that particular day. The applicant provided some pay slips from [Business 1].  However, verifiable evidence as to his employment during the whole of the relevant periods, corroborating his claim, has not been provided. 

5. The applicant gave oral evidence that he has at all times been compliant with the work condition 8105 while he held the student visa and claims that he gave plain answers to the police about work on a particular day which were conflated, but excluding the contribution to his $700 salary through his cleaning work at [Business 1].  There is no information or evidence before the Tribunal that conclusively settles the matter in the applicant’s favour at the time of this decision.  Nor is there reliable evidence to that is against him.  The Tribunal is prepared to give the applicant the benefit of the doubt relating to his work hours while he held the student visa.  He does not deny he worked more than 40 hours a fortnight, but claims he only did so outside term time, which is allowed relating to condition 8105.  There is no verifiable evidence to the contrary, only a lack of evidence confirming his version of events.

6. If the cancellation of the applicant’s student visa is set aside, conditions in Schedule 8 of the Regulations will be imposed including, for example, the 8105 work condition and that the applicant must be enrolled in a full-time course of study; condition 8202.  The Tribunal is satisfied that the applicant understands his student visa can be cancelled again under the Act if grounds exist, and accepts his claim that he genuinely intends to remain compliant with all conditions if the cancellation on review is set aside.  There is evidence before the Tribunal that the applicant is at little risk of reoffending while he resides in Australia holding a visa.

   Degree of hardship that may be caused to the applicant and family members

7. Both applicants have provided medical evidence indicating they have suffered, and continue to suffer, from anxiety and depression and that if they have to return to Bangladesh before the applicant completes his studies their families will be shamed because of the applicant’s discontinuation of his studies and his criminal conviction in November 2018.  [The applicant’s wife] claims that the marriage will breakdown because the applicant’s family will blame her and no longer accept her as part of the family.  It is accepted on the face of it that it is possible that culturally this may happen in the applicants’ circumstances. 

8. At the time of this decision, the applicant and [his wife] gave oral evidence that they have not disclosed any of these problems to their families.  If the cancellation is set aside and the applicant completes his post-graduate study that was interrupted when the student visa was cancelled, they say they will be relieved of the obligation to tell their families about the criminal conviction as they will not have to explain why the applicant did not complete his study.

9. The applicant and [his wife] say they rely on the sole income of [the applicant’s wife] as the breadwinner at present because the applicant currently has no work rights.  The Tribunal accepts this.  However, if the cancellation is not set aside, the applicant will be required to depart Australia and, for that reason, the matter of financial support of his wife from her salary working in Australia to support the applicant’s future university fees and joint living costs in Sydney will no longer be relevant.

10. Relating to costs already incurred for study and living expenses, the applicant was asked what his costs had been to date in Australia since he was granted the student visa (that has been cancelled).  He gave oral evidence that he has been living in Australia for three years or so and has spent about $100,000 on tuition and living costs, which sounds to the Tribunal  like a reasonable estimate in their circumstances. However, applicants who travel to Australia holding a student visa have been granted the visa on the basis they meet all primary criteria, including that they have sufficient funds to live and study.  This can be offset by working up to 40 hours a fortnight, which the applicant did until the visa was cancelled.

11. The applicant and [his wife], who were newly married at the time of the November 2018 incident, gave evidence that they have now seen a psychologist four or five times and that they are ‘doing very well’, ‘improving communication’ and ‘understanding each other’.   The applicant has expressed remorse for the hurt has caused his wife.  They also attend individual medical appointments, for which evidence has been provided.  The applicant said that he will see the psychologist again if he feels that he needs to.

12. In the circumstances, the Tribunal is satisfied that cancellation, and the consequences of cancellation that have been considered, would cause the applicant and his wife, a member of the applicant’s family unit, significant psychological and emotional hardship.

    The circumstances in which the ground for cancellation arose

13. The circumstances that led to the cancellation of the applicant’s student visa are not disputed, that is, the conviction for assault in New South Wales in 2019. The applicant accepts and is remorseful for the assault for which he was convicted. Other than the suggestion by [the applicant’s wife] that she was at least partly culpable for the assault, which is not accepted by the Tribunal, there is no evidence to suggest that there were extenuating circumstances beyond the applicant’s control that led to prescribed ground r.2.43(1)(oa) arising.

14. Relating to the night of the incident in November 2018 that resulted in the applicant’s conviction, [the applicant’s wife] has given conflicting accounts of what happened, including, in summary:

    a.That when they got home that night, she was not talking to the applicant, which made him angry, he squeezed both her arms and caused her pain and bruising and attempted to free herself but he would not let go.  The applicant bit her on the face and she bit him back on the chest.  He let go, then slapped her three times, again causing her pain and leaving a mark on her face.  The applicant then phoned his mother and it was at this time [the applicant’s wife] called the police.  The police, when they attended, noted the facial, chest and arm injuries.  (statement given in November 2018)

    b.In response to the NOICC sent to the applicant, in a written statement, that she was angry, suffering an ‘anxiety attack’, she ran towards the applicant, he grabbed her arm and pushed her away, and it was then that she called the Police. (statement given in April 2019)

15. These different versions tend to suggest that [the applicant’s wife] has not given truthful information in either or both of these statements.  However, the applicant was convicted of the assault and the Tribunal gives more weight to the applicant’s conviction at [Court 1] in February 2018, even though some details vary in the accounts given by [the applicant’s wife] of what happened on the night in question.  In the Tribunal’s experience, but claiming no medical expertise, it is sometimes not unusual for women who have suffered domestic violence to sanitise the version of events at a later date when something significant is at stake, such as in this case losing their right to reside in Australia and having to potentially deal with difficult family circumstances if they are required to return to their home country. While it is not suggested that it is acceptable that this occurs, or that women should seek to downplay the seriousness of what has happened to them, it is understandable.  The Tribunal relies on what is more likely to be the truthful account of what occurred when [the applicant’s wife] was assaulted in November 2018 when she gave her statement to the police not long after the domestic violence incident.  In their [November] 2019 Facts Sheet, the police noted that [the applicant’s wife] had visible injuries consistent with her version of events when they took her statement. The Tribunal does not accept [the applicant’s wife’s] later claim, in the NOICC response and in her oral evidence at the Tribunal hearing, that the applicant was merely trying to calm her down and that she was in some way at fault.

16. It is accepted that the applicant has expressed contrition and remorse and that he has taken positive steps to address his behaviour. The Tribunal considers it would be a very rare event where a victim of domestic violence would be assaulted by their partner for reasons that were beyond the control of the person committing the assault. The facts in this case do not support reaching a conclusion that the incident that led to the applicant’s conviction was that kind of rare event. The Tribunal is not satisfied that there were circumstances that were beyond the applicant’s control relating the; prescribed ground r.2.43(1)(oa).

    The applicant’s past and present behaviour towards the Department

17. On the evidence before the Tribunal, it is apparent that the applicant sought to downplay the seriousness of the incident for which he was convicted in the few months between the November 2018 assault and in the response to the NOICC in April 2019.  More concerning is that [the applicant’s wife] gave a watered down version of events in response to the NOICC in May 2019, which the Tribunal does not accept as being very reliable, preferring the version that she gave to the police in November 2018, contemporaneous to the incident when it is reasonable to think the events would still be clear in her mind, even if she was, as has been claimed, ‘angry’.

18. The Tribunal considers the applicant to have provided incorrect information when he responded to the NOICC in May 2019, because it is not accepted that [the applicant’s wife’s] police statement misrepresented the facts relating to the November 2018 assault.  A significant amount of time has passed since the applicant provided NOICC response in May 2019 response, when he claimed that [his wife] provided untruthful statement to the police when the incident occurred, and even though the applicant is now taking responsibility for his actions, it does not change the fact that the Tribunal considers he provided incorrect information at that time when responding to the NOICC.

    Are there persons in Australia whose visas would/may be cancelled under s.140 of the Act?

19. [The applicant’s wife] currently holds a bridging visa.  However, if the decision to cancel the applicant’s visa is affirmed, [the applicant’s wife] will be affected by the consequential cancellation of her student visa which was granted to her as a member of the applicant’s family unit.

20. A claim was made in response to the NOICC in May 2019 that it would be unfair for [the applicant’s wife’s] visa to be cancelled because she was a victim of domestic violence.  There is no question that [the applicant’s wife] was assaulted by the applicant and that the conviction was for a domestic violence assault.

    Whether indefinite detention is a possible consequence of the cancellation decision

21. If the cancellation of the visa is affirmed on review, the applicant will continue to be an unlawful non-citizen and will be liable to be detained and removed under ss.189 and 190 of the Act respectively.  Indefinite detention is not indicated.  The applicant has a valid passport issued by Bangladesh and could return to his home country.  Cancellation may mean that the applicant will not be able to apply for a temporary visa for three years and, under s.48 of the Act.  The types of visas he would be entitled to apply for would be very limited.

    Australian’s international obligations

22. The applicant has no dependent children, so there are no children whose interests may be affected by the cancellation.

23. The applicant is a citizen of Bangladesh.  At the time his visa was cancelled, he raised no claims, nor provided any evidence, that indicated he would be removed from Australia in breach of Australia’s non-refoulement obligations under relevant protocols or conventions, or that returning him to his home country would result in the applicant facing persecution, death, torture, cruel, inhuman or degrading treatment or punishment.  Or that a member of the applicant’s family unit, in this case his wife [named], would be arbitrarily interfered with in breach of Australia’s obligations under the International Covenant on Civil and Political Rights.

24. At the time of this decision, the applicant claims to fear the risk of significant harm because the current government in Bangladesh is mishandling the COVID-19 pandemic.  The Tribunal acknowledges that, if the applicant is required to depart Australia, it will most likely not be without difficulty or delay because of travel disruptions due to the pandemic.  However, no evidence was provided to substantiate the claim.  The Tribunal is satisfied that if the cancellation of the visa is affirmed on review that Australia and the applicant is returned to his home country, Australia will not be in breach of its international obligations, including its non-refoulement obligations.

    Conclusion

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

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

27. The Tribunal has no jurisdiction with respect to the second named applicant.

    Jennifer Cripps Watts
    Member

    
    

    APPENDIX 1 – Migration Act 1958

    Section 116 Power to cancel

    (1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: 

    (a)  the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

    (aa)  the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

    (b)  its holder has not complied with a condition of the visa; or

    (c)  another person required to comply with a condition of the visa has not complied with that condition; or

    (d)  if its holder has not entered Australia or has so entered but has not been immigration cleared — it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

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

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

    (ii)  the health or safety of an individual or individuals; or

    (f)  the visa should not have been granted because the application for it, or its grant was in contravention of this Act or of another law of the Commonwealth; or

    (fa)  in the case of a student visa:

    (i)  its holder is not, or is likely not to be, a genuine student; or

    (ii)  its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

    (g)  a prescribed ground for cancelling a visa applies to the holder.

    APPENDIX 2 – Migration Regulations 1994

    Reg 2.43  Grounds for cancellation of visa (Act, s116)

    (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

    …

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder 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));

    …..