1926341 (Migration)

[2020] AATA 2218

1926341 (Migration) [2020] AATA 2218 (24 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926341

MEMBER:Melissa McAdam

DATE:24 March 2020

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 24 March 2020 at 3:45pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – convicted of an offence – multiple driving offences – mental health issues – family and community support – significant employment achievements – evidence of significant changes since the offending – plans to resume education – decision under review set aside           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, 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 16 September 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 delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the applicant. The prescribed ground was under r. 2.43(1)(oa) of the Migration Regulations, namely:

   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)).

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   NOICC

4. On 3 September 2019 the Delegate issued a Notice of Intention to Consider Cancellation of the applicant’s Student visa under s. 116 of the Act (NOICC) to the applicant. In the NOICC the Delegate set out the following:

   It appeared that a prescribed ground existed for the cancellation of the applicant’s visa because the Department had received information the applicant has been convicted of multiple offences against the law of NSW.

   According to police information the applicant was convicted of the following offences in the [Court 1] [in] August 2019:

   -Drive with middle range PCA, 2^nd offence;

   -Drive motor vehicle during disqualification, 2^nd offence.

   As a result the applicant was sentenced to four months imprisonment commencing [in] July 2019 and concluding [in] November 2019.  He was also disqualified from driving for 48 months and ordered to participate in the ‘alcohol interlock program’.

   Prior to those convictions the applicant had been previously convicted of the following offences in NSW:

   [In] July 2018 in [Court 2]

   -Drive with mid-range PCA, 2^nd offence, sentenced to intensive corrections order for period of 15 months; disqualified from driving for 9 months, participate in alcohol interlock program for 24 months; and

   -Drive motor vehicle during disqualification period, 2^nd offence, sentenced to intensive corrections order for period of 15 months.

   [In] February 2018 in [Court 3]

   -Drive motor vehicle during disqualification period, 2^nd offence, sentenced to 150 hours community service order; and.

   -Drive with high range PCA, 1^st offence, sentenced to sentenced to 150 hours community service order; and

   -Not give particulars to owner of damaged property, sentenced to a fine of $300.

   The delegate noted the convictions demonstrated repeat offending which potentially endangers the safety of the Australian community. As the applicant was convicted of multiple offences his Student visa may be cancelled under s.116(1)(g) relying on prescribed ground r.2.43(1)(oa).

   Response to NOICC

5. On 6 September 2019 the applicant provided a written response to the NOICC, outlining the following:

   Since arriving in Australia in 2016 he studied at [College 1] where he completed a Diploma in [Subject 1].  He is continuing with a Bachelor of [Subject 2] at [University 1] from February 2020.

   Settling in Australia has been very difficult for him.  He has faced numerous challenges and has sought the help of career advisors, friends, relatives and family in Kenya. His parents have been extremely supportive and have always paid his tuition fees and the costs of living in Australia.

   In mid-2017 he started getting depressed which made it difficult to focus and function normally. He didn’t know what was happening to him. this greatly affected his life and education. It also resulted in him drinking excessively and that is how he started to have problems with the police for drink driving on a number of occasions.  He was not aware he was breaking the law by driving while under the influence of alcohol.

   He started opening up to his host [Ms A] who helped him find a psychiatrist. The applicant has been seeing the psychiatrist since 2018.  He is committed to ensuring he changes his social life and disengages from people/friends who may not be a good influence upon him. He will focus on his well-being and his studies.

   He will continue to attend counselling with his psychiatrist to ensure he complies with the law and his visa conditions.

   He has been of good character.  He has never committed any other offence.  He deeply regrets his actions and is doing all he can to ensure he does not repeat the mistakes/offences.

   Cancelling his visa will affect his well-being. He will not be able to access the psychiatric support he is receiving or continue his studies.  He wants to successfully complete his studies in Australia and return home to work and start a family.

6. The applicant included the following documents in his response:

   -     A report dated 18 July 2019 from [Psychologist A], and [Psychologist B]. In the report it is stated that it was written at the request of [Legal Service 1], to assess the applicant’s mental health and circumstances pertaining to his offending behaviours.  The applicant was referred to the practice in September 2018 by his GP for treatment for depression and anxiety. He engaged on a fortnightly basis until December 2018.  He re-engaged in counselling in April 2019 and has engaged on a fortnightly basis since.  He presented as remorseful for the offences he committed. He disclosed he was initially ‘ignorant’ about the seriousness of driving under the influence charges in Australia as it is not illegal in Kenya.  He was disappointed in himself and contrite. He spoke candidly of the impact his repeat offences could have on the community and that he was fortunate no one had been seriously injured or killed as a result of his actions.   He did not present as a person who shares pro-criminal or anti-social attitudes or beliefs and reported he comes from a law-abiding family. he conceded he has a poor capacity to self-regulate. He has experienced loneliness, homesickness, mental health issues and academic pressures. He acknowledged that alcohol disinhibits him and he tends to make poor choices when intoxicated.  He had minimal experience with alcohol consumption in Kenya. His mother and siblings abstain from alcohol. He has never seen his father intoxicated.  The applicant drank occasionally while he was at university in Nairobi. When he arrived in Australia he did not know anyone from the Kenyan community and felt disconnected from his culture.  During his initial months he attended many parties and events. He would binge drink as it helped reduce his inhibitions and connect with peers. He reported significant functional blackouts and a range of aberrant behaviours were reported to him by his peers of which he had little or no memory.  He became reliant upon alcohol as a means to attend parties.  His peers had similar patterns of alcohol consumption.  His depression and anxiety intensified as he became engaged with the criminal justice system. . he would drink alcohol to control his feelings of guilt, shame and worthlessness.  His landlady /sponsor suggested he may benefit form psychological intervention. This helped him reduce his alcohol intake and better manage his mental health.  He disengaged over Christmas believing he had gained control but his old pattern of behaviour re-established itself.  He has now made the connection between his offending behaviour and his alcohol abuse. He reports that he would be willing to take appropriate medication.  He is the first person in his family to study abroad and his family are proud of him.  he has obtained employment as [an occupation 1] in an [agency] to help his parents pay his costs in Australia.  A Level of Service Inventory  - Revised (LSI-R) management assessment suggests that the applicant requires a “low” level of service. He would benefit from further connection to his own culture and the local Kenyan community. He reports he has not been intoxicated since the night of the offence.  He needs to continue to engage with mental health treatment.

   -     A Conditional Letter of Offer, dated 23 July 2019, from [University 1] to the applicant to study a Bachelor of [Subject 2] between July 2019 and July 2022.

   Delegate’s Decision

7. On 16 September 2019 the Delegate decided to cancel the applicant’s Student visa.

   Information to the Tribunal

   Written Submissions

8. On 19 February 2020 the applicant sent the following document to the Tribunal:

   -    A letter dated 1 February 2020 from Ms [Ms A], stating that she is [landlord]. The applicant lives at her home with two other students. The applicant is a self-funded overseas student who was studying a Bachelor of [Subject 1]. His parents support him and pay for his education, accommodation, transport and living expenses. He works part-time as [an occupation 1] at [employer name].  He has lived at her home since July 2017.  He has great aspirations and commendable character.  She firmly believes he is highly ambitious regarding his academic and career prospects. He has faced numerous challenges. He deeply regrets offending. He has completed his obligations and is remorseful.  He is working extremely hard to get back on track with his studies.  She believes he should be given a chance to complete his studies.  She will support him as his mentor and support person in [City 1].

   -    A letter dated 10 February 2020 from Dr C, [a leader] of [a named community group].  He has known the applicant for over three years. The applicant is part of the African community in [City 1] and has excellent community relations with others. He knows that the applicant is sorry for all that happened to lead to the cancellation of his visa. Dr C knows the applicant to be a decent, hardworking and trustworthy person.  His past behaviour was a lapse in character.  Dr C is optimistic that the applicant has reflected hard on his mistakes and looks forward to a second chance.

   -    A letter from Reverend K, Chaplain at the [named] Correctional Centre, stating that he met with the applicant on a regular basis since the applicant’s arrival at the Centre in August 2019.  During this time the applicant has reflected on his life, his crime, and the effect it has had upon his parents and his future. When he first came to Australia he benefited from the wisdom and maturity of a trusted leader in the local African community.  However the applicant was immature and felt isolated and depressed.  He attempted to socialise with other students where alcohol was always available. Lacking maturity and needing to be accepted he found it difficult to socialise without drinking alcohol. He lacked personal strength to say no to drinks offered to him. This led to poor decisions. It did not help his loneliness and social isolation. He realises his poor decisions have shown disrespect to his parents and their sacrifice.  He hopes to return to his studies. In custody he has developed a mature attitude. He now has the strength of mind to say no and a willingness to seek help when necessary.  He served his time in custody without incident.  Reverend K believes the applicant has paid his price to society.

9. On 24 February 2020 the applicant sent the following document to the Tribunal:

   -    A letter dated 24 February 2020 from Mr E, [a leader] of the [Community Group 1], stating that he has known the applicant for over two years.  He knows the applicant to be an honest, hard-working, responsible and active member of the community.  He is involved in community activities on a voluntary basis whenever available. He has a positive impact upon the community.  He disclosed to Mr E that he has had drinking problems which contributed to being charged with drink-driving offences.  The [Community Group 1] continues to support the applicant to get back to his studies. The applicant  genuinely regrets and has learnt his lesson.  He is committed to doing all he can to address his drinking problem and be law-abiding at all times.

   Tribunal Hearing

10. The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A].

11. The following is a summary of the information provided by the applicant at the hearing:

    a.The applicant confirmed he had been convicted of criminal offences in NSW. He was unaware of the seriousness of drink driving in Australia at the time.  The Tribunal queried how he could be unaware given his arrests and convictions. He responded he was ignorant then and made impulsive decisions.

    b.He spent four months in jail in [a location].  He was released [in] November 2019.   He has changed since going to jail. He wants to invest in his future here. He has a supportive community now.  He will focus on the positive things.

    c.He has completed his Diploma studies in Australia.

    d.Since his release from prison he has worked as [an occupation 1] three to four days a week at [an employer].

    e.When he is not working he is preparing himself for the time he can resume his studies.  He reads [Subject 2] books at home. He sometimes meets with his former classmates to find out what they are currently studying so he can try to catch up. They share their study notes with him.  He has a Kenyan friend who is studying the course the applicant wants to be enrolled in.  He has another Kenyan friend who is also studying. Neither of these friends drink alcohol.

    f.He is continuing to see a psychologist.

    g.He completed a sober driving course in July last year. It was a three week course which he had to attend every weekend.  From the course he learned that planning is very important to avoid drink driving.  He also learned of the consequences of drink-driving, putting others at risk and how it impacts both himself and others in the community.  Drinking alcohol leads to not making the right decisions.  He learned about the effect of alcohol in the body’s system.

    h.Now if he intends to drink somewhere he uses a taxi or an Uber. He sold his car last year before he went to jail.

    i.He wants to finish his studies in Australia. He will be devastated if he cannot do this. His academic goal is to study [Subject 1] and obtain a Bachelor of [Subject 1] degree, majoring in [subject]. He wants to work in [related] firm in Australia to gain some practical experience.  He then wants to return to Kenya to work.

    j.He has complied with all his other conditions on his visas.

    k.He received an offer of enrolment from [University 1] for a Bachelor of [Subject 1] degree last year.   If his Student visa is not cancelled he will apply again to the [University 1].   He will also explain his situation to the [University 2] to ask if it will allow him to enrol again.  He would gladly go back to [University 2].  But if they will not accept him he will enrol at [University 1].  The [University 1] course is based in Sydney so he would need to move [there] or commute from the [City 1] area. He believes he will still be able to stay in contact with his support network.

    l.If he misses out on the opportunity to complete his studies here he will feel there was no sense in him being here. His family in Kenya have been very supportive. It has been very hard for them financially. They want to see a result  and for him to have a good future. They have done many sacrifices.  For example they could not start a new business in Kenya because they are financially supporting the applicant’s education in Australia. They are less able to support the applicant’s siblings because of the cost to them of supporting the applicant here.  The applicant’s mother was sick recently but she is getting better.  She was in hospital when the applicant was in jail.  .

    m.He has made friends in Australia.  He is working as [an occupation 1]. He is seeing a doctor regarding his anxiety and depression.

    n.If he doesn’t obtain a degree he won’t have qualifications so won’t be able to even get a job interview in Kenya.   He will have achieved nothing.  The education system here is better than in Kenya.

12. The following is a summary of the information provided by [Ms A] at the hearing:

    a.The applicant has lived at her home for the past two years. She has [sons] who she has raised to academically achieve.  [All] had different challenges. Some young people can get lost.

    b.The applicant has a very good work ethic.  She drives the applicant to and from his work.  She liaises with the [manager] where the applicant works, who sings the applicant’s praises. The applicant works night shifts.  He does whatever his work place requires.

    c.She doesn’t keep alcohol in her house.

    d.When she realised the applicant was struggling emotionally she took him to see her GP.   Her GP referred the applicant to a good psychologist.  There is a lot of help available in Australia.  The applicant has private health insurance he can utilise for his treatment.

    e.When he arrived in Australia the applicant felt peer pressure to drink alcohol.  He no longer feels this and has formed a responsible set of friends now.  Some of his friends come to her home to socialise with the applicant.  From her observations they are a lovely group of friends who are very responsible people.

    f.The applicant is now a lot more accepting of advice and is able to open up and speak about his feelings.

    g.The applicant is no longer living at the university accommodation so is in a more positive environment now.  He goes to the gym often and goes running. He is feeling physically better and this also helps him combat depression.

    h.She has two other students living in her house. [Details deleted]. They all get along well.

    Post-Hearing Written Submission

13. On 15 March 2020 the applicant submitted the following written information to the Tribunal:

    -     A Diploma of [Subject 1], awarded to the applicant by [College 1] [in] March 2019.

    -     A Certificate of Completion of a ‘Sober Driver Program’ awarded to the applicant by the NSW Government [in] 2019.

    -     A Certificate of Completion of a ‘Traffic Offenders Rehabilitation Program’ awarded to the applicant [in] 2017.

    -     A Certificate of [Excellence] awarded to the applicant by [another manager of his workplace].

    -     A letter dated 10 March 2020 from the [Manager], stating that the applicant is a Casual [occupation 1] who [performs specified tasks].  He is always respectful and is a valued member of the team.  They look forward to the applicant’s ongoing contribution to [their operations].

    -     A letter dated 11 March 2020 from Mr H. He has known the applicant for almost two years since he joined [College 1]. They both studied the same course and became friends and study buddies.  After completing the course they both proceeded to [University 2] to study a Bachelor degree in [Subject 1].  During the first semester the applicant opened up to Mr H about charges he was facing in court. This affected the applicant and made him emotionally stressed so that it was hard for him to concentrate on his studies. The applicant was convicted of drink-driving charges and sentenced to four months prison.  After he came out of jail the applicant was more determined to get himself on track and go back to his studies. Unfortunately he could not because his Student visa was cancelled and his CoE was cancelled. The applicant was very concerned about the progress of his studies so on a number of occasions he has accompanied Mr H to the library to study together to try to understand some subjects Mr H was taking while the applicant was in jail.  Mr H believes the applicant has a very high passion to study [Subject 2] and tries to catch up through reading and research on the subjects in the course.  Mr H believes the applicant has learned a lot from his setbacks and has completely changed his ways for the betterment of his life.  Mr H believes the applicant is ready to return to studies and complete them to achieve a career in [his profession].  Mr H considers the applicant to be a fine well-balanced person with an abundance of positive qualities.

    -     A letter dated 10 March 2020 from the applicant’s mother.  She writes that her son lived with her at home before he came to Australia.  When he was growing up he was always of good moral character and good heart.  He was dedicated to his education and future.  She believes him to be a decent person.  She has strongly communicated to him about the issues of drink-driving and finding himself in trouble with the law.  He confessed to her that he exhibited a serious lack of judgment.  He expressed remorse and desire to address those issues.  She is aware of his ongoing progress and is supportive of him.  He is a good person.  He is working on himself and getting support from the Kenya community in [City 1] and from [Ms A], the owner of the house where he lives. They have communicated to her about the applicant’s progress.  She believes the applicant has learnt his lesson. She fully supports him to try to achieve his best in becoming a successful and responsible man.  She will financially support his studies with his tuition fees and accommodation costs.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

2. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(oa) is relevant. This ground is that the Minister is satisfied that the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory.

3. The applicant has confirmed that he has been convicted of an offence against the law of the state of New South Wales. On the basis of the applicant’s evidence and the available documents, the Tribunal is satisfied that the applicant has been convicted of an offence in NSW. The Tribunal therefore finds 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

4. 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’.

   the purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel to or remain in Australia

5. The applicant came to Australia to study and to complete a Bachelor degree.  The applicant successfully completed his Diploma course in Australia. His Bachelor degree studies were disrupted by both his behaviour and the cancellation of his visa, so that his enrolment at [University 2] was cancelled.

6. The Tribunal accepts the written evidence that the applicant was able to obtain another offer of enrolment at a different university in 2019.

7. The Tribunal accepts that the applicant has made efforts to continue to study subjects required by the Bachelor degree course, informally with the help of his student friends.  In view of his efforts and past offers, the Tribunal considers that the applicant would have a reasonable chance of again obtaining an enrolment offer in a relevant course, if his Student visa is not cancelled.

8. Given the applicant‘s continued efforts to study and his prospects of obtaining further enrolment the Tribunal views this factor in the applicant’s favour.

   the extent of compliance with visa conditions

9. There is no evidence to indicate the applicant has not complied with any other of his visa conditions while in Australia. The Tribunal therefore views this factor in the applicant’s favour.

   degree of hardship that may be caused (financial, psychological, emotional or other hardship)

10. The Tribunal accepts the applicant’s parents have spent substantial sums on the applicant’s education in Australia. The Tribunal accepts it will cause them distress for the applicant to return without achieving a degree qualification.  The Tribunal also accepts that the financial sacrifices they have made have caused them and their other children a degree of hardship in Kenya.

11. The Tribunal accepts that the applicant prospects of obtaining good employment in Kenya will be greater if he returns with a degree qualification.  The Tribunal considers that he would then be in a better position to support his parents and family there.

12. The applicant gave evidence of emotional pain at letting his parents and himself down through his behaviour in Australia, and of his desire to show he has matured and can conduct himself responsibly here. The Tribunal accepts it will cause the applicant some emotional hardship not to be given the opportunity to complete his studies in Australia.

13. The Tribunal gives this factor some weight in the applicant’s favour.

    circumstances in which ground of cancellation arose

14. The available evidence, including that presented by the applicant, shows that the cancellation arose because of the applicant’s unlawful behaviour.  He repeatedly drove while under the influence of alcohol, contrary to the laws of NSW.  His claim to have been unaware of the seriousness of drink-driving is undermined by his repetition of such unlawful behaviour even after being arrested, fined and taken to court.    

15. The applicant has stated he was immature, lonely and depressed at the time. The Tribunal does not consider this an excuse for his dangerous acts which put members of the community and himself at great risk. On each occasion he made the choice to assume such a risk and to drive while over the prescribed alcohol limit.

16. The Tribunal views this factor as favouring the cancellation of the applicant’s visa.

    past and present behaviour of the visa holder towards the department

17. On the available evidence the applicant appears to have been cooperative with the Department.  He has also been cooperative and responsive with the Tribunal. The Tribunal therefore views this factor in the applicant’s favour.

    whether there would be consequential cancellations under s.140

18. There is no indication of any consequential cancellations under s.140 of the Act.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

19. If the applicant’s Student visa remains cancelled his Bridging visa will eventually cease. He will then be liable to detention if he does not depart Australia before the expiry of the Bridging visa.  He will also be subject to conditions disallowing him from lodging another visa application to Australia within three years, without the Minister’s intervention.

20. However these are intended legal consequences and there is nothing to indicate they are unduly harsh on the applicant. He can avoid detention by departing Australia before the expiry of his visa.  Three years is also not an inordinate amount of time to wait to apply again for a visa to Australia.

21. The Tribunal does not consider this factor weighs against the cancellation of the visa.

    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

22. There is no indication of any international obligations that may be breached as a result of the cancellation.

    any other relevant matters

23. The applicant has presented detailed and well-supported evidence of having matured and significantly changed since the time of his offending.  Many people have provided character references for him.  They have clearly outlined the basis for why they support the applicant and his efforts to complete his study in Australia. They have provided comprehensive opinions of their renewed belief in the applicant and the changes they have observed in him.

24. The Tribunal accepts that the applicant now finds himself in a supportive environment and that he is directing his efforts to achieve his desired education qualifications here.

25. He has exhibited a remorse about his past actions and some understanding of their impact.  He appears ready to commit to his studies.  His willingness to seek professional and social support also suggests he will be able to successfully study in Australia and avoid reverting to  offending behaviour.

26. While the applicant’s offences were very serious the Tribunal considers that the circumstances as a whole favour the applicant being allowed the opportunity to resume his studies and complete his education in Australia. The Tribunal therefore concludes that the visa should not be cancelled

    DECISION

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

    Melissa McAdam
    Member