1933322 (Migration)

[2020] AATA 1973

1933322 (Migration) [2020] AATA 1973 (2 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1933322

MEMBER:Jason Pennell

DATE:2 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 2 March 2020 at 10.04am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – risk to the health or safety of an individual – applicant convicted of family violence – non-payment of fees – financial hardship – decision under review affirmed    

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198
Migration Regulations 1994 (Cth)

CASES

Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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 20 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2.The delegate cancelled the visa under s.116(1)(e)(ii) of the Act on the basis that the applicant represented a risk to the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.The applicant appeared before the Tribunal on 28 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. By an email sent on 27 February 2020 at 4.15pm the applicant provided his response to the Tribunal’s hearing invitation in which he requested a Sinhala interpreter attend the hearing listed for 10.00am on 28 February 2020. At the hearing it was explained to the applicant that the Tribunal had not been able to provide an interpreter given the short time period between the time of his request for an interpreter and the hearing.  The Tribunal invited the applicant to have the hearing adjourned to another day so that an interpreter could be arranged to attend the hearing. However, the applicant stated that he did not require an interpreter and that he wanted the hearing proceed, as scheduled, in English.  As a result, the hearing was conducted in English. The applicant and [Ms A] at all times understood the proceeding and communicated fluently with the Tribunal in English.    

4.The applicant was represented in relation to the review by his registered migration agent. The applicant’s migration agent did not attend the hearing.

5.For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

6.Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(ii) of the Act on the basis that the applicant represented a risk to the health or safety of an individual or individuals. 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?

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

7.A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past.[1] Gong v MIBP [2016] FCCA 561, at [41].

[1] Gong v MIBP [2016] FCCA 561, @ [41].

1. The expression ‘good order of the Australian community’ is not defined in the Act. However, in Tien v MIMA (1998) 89 FCR 80 an earlier version of s.116(1)(e) of the Act was considered and remains relevant. The Court held[2] that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   [2] Tien v MIMA (1998) 89 FCR 80 @ 94

2. The applicant’s evidence was that he was born on [date] in Sri Lanka. His mother and father continued to live in Sri Lanka. His evidence was that his father is a retired [worker] and his mother is a retired [occupation]. The applicant stated that he had [specified siblings who] were considerably older than the applicant (approximately [years]). They were all married with families and continued to live and work in Sri Lanka.

3. The applicant’s evidence was that he completed School at [a named school] in Sri Lanka and that he had completed [courses] at the [named college] in Colombo Sri Lanka.

4. The applicant was granted a Student Visa (Temporary) (class TU) (subclass 500) on 28 June 2017. The applicant arrived in Australia [in] June 2017 for the purposes of [studying] at [College 1]. The applicant departed Australia [in] May 2019 and retuned [in] June 2019.

5. The applicant evidence was that he and [Ms A] had been childhood friends in Sri Lanka and that over time they had developed a romantic relationship. Their evidence was that they had both planned to travel to Australia to study. The applicant initially arrived in Australia in June 2017. [Ms A] arrived in Australia in 2018 on a Student Visa to study [a subject] at [a named] University.   Prior to [Ms A’s] arrival in Australia the applicant lived with friends in [Suburb 1]. However, upon her arrival in Australia the applicant and [Ms A] shared a house at [an address in Suburb 2] (‘the [Suburb 2] property).

6. The [Police] reported that on [a date in] June 2019, the applicant and [Ms A] argued after the applicant has accused [Ms A] of breaking the heater at the [Suburb 2] property. Following the argument [Ms A] left the property to attend University. When she returned alter in the day she discovered that she had eft her keys in the house. As a result the applicant became angry at [Ms A] for having to open to the door for her. He grabbed [Ms A] by the hair and dragged her through he house to show her where she had left her keys. The applicant yelled [Ms A] and told her that he was angry because she had not called him all day. [Ms A] said that she wanted to leave the applicant in response to which the applicant pushed her and slapped her across the face twice and to the back of the head three times. [Ms A] became fearful that the applicant was going to kill her. As a result she called the police upon which the applicant was taken to the [Suburb 2] Police Station where he was issued a Family Violence Safety Notice.

7. [Later in] June 2019 a Final Family Violence Intervention order was issued against the applicant by [Court 1]. The applicant is named as the respondent and [Ms A] as the protected person. The Intervention order remains in force until [June] 2020 and directs the applicant not to:

   (a)commit family violence against the protected person.

   (b)intentionally damage and property of the protected person or threaten to do so.

   (c)attempt to locate.

   (d)follow the protected person or keep her under surveillance.

   (e)publish on the internet, by email or other electronic communication any material about the protected person.

   (f)contact or communicate with the protected person by any means.

   (g)approach or remain within 5 meters of the protected person.

   (h)go to or remain within 200 metres of the [Suburb 2] property.

8. [Later in] June 2019 in breach of the Intervention Order the applicant attended the [Suburb 2] property. The [Police] were called to the property and upon their arrival they arrested the applicant for contravening the Intervention Order.

9. [A week later] at approximately 8.00pm the applicant again breached the Intervention Order by attending the [Suburb 2] property. The applicant was accused of banging and knocking on both the front door and [Ms A’s] bedroom window for approximately 30 minutes, in an attempt for her to let him into the house. The applicant then smashed [Ms A’s] bedroom window by banging his head against the window. He then yelled words to the effect of ‘what’s the meaning of this’ and ‘I’m going to finish this.’  [Ms A’s] called the police who attended the [Suburb 2] property and arrested the applicant. The applicant was taken to the police station upon which he made full admissions.

10. [In early] July 2019, at [Court 1] the applicant was found guilty of the following criminal offences (‘the [Court 1] offences’):

    (a)Persist to contravene intervention order.

    (b)Contravene condition of bail.

    (c)Drive whilst disqualified; and

    (d)Commit and indictable offence on bail.

11. The applicant was sentenced to serve [number] days in prison. Given the period of time already served the applicant was taken to have already served the period of imprisonment and was released.

12. [Later in] July 2019 at [Court 2], the applicant was convicted of the following offences (‘the [Court 2] offences’):

    (a)Intentionally damage property.

    (b)Contravene family Violence Intervention Order

13. The applicant was sentenced to a Community Correction Order for period of 12 months. The order commenced on [the same date] with the following conditions:

    (a)Supervision – be supervised by the secretary.

    (b)Treatment and rehabilitation – to undergo the following treatment and rehabilitation

    (i)   Mental health assessment and treatment as directed.

    (ii)  Offending behaviour program/s as directed.

14. During the course of the hearing the applicant admitted that he had been charged and convicted of the above offences. In addition in relation to his Community Correction Order the applicant advised that he was on the waiting list but had not completed any mental health assessment as at the time of the hearing.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) of the Act 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

1. 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’.

2. The applicant provided the Tribunal following documents in support of his application:

   (a)[Clinic 1] Invoice made out to the applicant for services provided by [Doctor A] [in] April 2019.

   (b)Medical Certificate prepared by [Doctor B], [from a named] Hospital Emergency department dated 3 April 2019.

   (c)[A named service] Pathology Invoice made out to the applicant for services provided on 3 April 2019.

   (d)Letter written to [Doctor C] Consultant Orthopaedic Surgeon, [from a named hospital in] Sri Lanka, dated 4 April 2019 in relation to the applicant’s mother.

   (e)[Ambulance] Invoice made out the applicant for services provided [in] May 2019.

   (f)Prescription made out to the applicant by [Doctor D] on 20 may 2019

   (g)Report by [Psychiatrist  A] of [Hospital 1] dated 10 June 2019.

   (h)Report by [Psychiatrist B], Clinical Psychiatrist dated 20 September 2019.

   (i)Kessler Psychological Distress Scale (K10) test dated [in] September 2019.

   (j)GP Mental Health care Plan Patient Assessment- 4 September 209.

   (k)Referral letter by [Doctor E], GP to [Psychiatrist B] dated 4 September 2019

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

1. By a letter dated 14 June 2017 in support of his Student visa application the applicant stated that it the purpose of him traveling and staying in Australia was to complete [Degree 1] so as to enable him to return to Sri Lanka with an Australia qualification and pursue his career aspirations. However, the applicant’s evidence to the Tribunal was that he travelled to Australia to complete a [Degree 1] so that he may be able to obtain employment in Australia for a better life.

2. After arriving in Australia the applicant complete a Certificate IV in [subject] at the [named] College and a Diploma [course] at [College 1]. The applicant commenced [Degree 1] at [College 1] on 25 February 2019. However, his enrolment in the course was deferred from 23 May 2019 until 29 July 2019 for compelling and compassionate reasons.

3. The applicant’s enrolment in [Degree 1] was cancelled by the education the non-payment of fees. There is no evidence that the applicant is enrolled in either [Degree 1] or any other full time registered course in Australia.

4. In light of the applicant’s oral evidence to the Tribunal about his desire to remain in Australia upon completion of his course and the fact that he is not currently enrolled in any course, the Tribunal has some reservations about the applicant’s intention to return to Sri Lanka after the completion of his studies. Nevertheless, the Tribunal accepts that the primary purpose of the applicant traveling and staying in Australia was to study. Accordingly, the Tribunal gives some weight to this consideration in favour of the applicant.

The extent of compliance with visa conditions

1. There is no evidence that the applicant has not complied with the conditions of his visa. Therefore the Tribunal places some weight on this consideration in the applicants favour.

Degree of hardship that may be caused.

1. The applicant’s evidence was that if his visa is cancelled he will lose the opportunity of obtaining a degree in the Australia and will not be able to get a better job and life for himself. In response to the tribunal, the applicant accepted that he would be able to obtain a degree in Sri Lanka. However, his evidence was that an Australian qualification would enable him to obtain a position with a company here in Australia or alternatively a better position in Sri Lanka.  The cancellation of his student visa would mean that he would not be able to obtain an Australia qualification and therefore would lose the opportunity of getting a better job. 

2. The Tribunal accepts that in the event the visa is cancelled the applicant will suffer hardship as a result of not being able to complete a degree in Australia. However, the applicant accepts that he would be able to obtain a degree in Sri Lanka. While the Tribunal accepts that he may initially be able to obtain a better employment by having an Australia degree, it does not accept that the applicant would not be prevented from achieving the same level of success or employment level with a degree from a Sri Lankan University or other educational institution.  

3. In addition the applicant claimed that cancellation of his student visa would cause him and his family to experience financial hardship and emotional stress. The applicant believes that being forced to stop his studies without having obtained a qualification will mean that he has failed as a person and that the time and money he spent on his education in Australia would be in vain.

4. Therefore, while the Tribunal accepts that the applicant will suffer hardship as a result of his visa being cancelled its does not accept that cancellation of his visa will necessarily prevent him from  achieving the same level of employment or standard of living he could achieve with an Australian degree.

5. The Tribunal accepts that the cancellation of his student may cause the applicant and his family financial and emotional stress. The Tribunal accepts that he would suffer some family and social embarrassment as a result of returning to Sri Lanka without having completed his studies. The Tribunal notes, however, that the applicant’s enrolment was cancelled due to the non-payment of fees and as such it appears that his ability to obtain an Australian qualification was already in jeopardy and as result had he was at risk of social embarrassment in any event. In addition the Tribunal accepts that he and his family would suffer some financial hardship as result of him not completing his qualification in Australia. However, the Tribunal notes that any such hardship may be reduced by obtaining credit for the subjects he completed in Australia as part of any qualification he may finally complete in Sri Lanka. As a result, the Tribunal does not accept that the financial hardship or emotional stress or embarrassment as claimed will necessarily prevent the applicant from achieving his goals in life.

6. [Ms A] gave evidence in support of the applicant and indicated that she wants to re-establish a relationship with the applicant. The applicant provided a copy of an application by [Ms A] to have the Intervention Order revoked. The application is to be heard in [Court 1 in] April 2020. The Tribunal accepts that in the event that the applicant visa is cancelled and he is to return to Sri Lanka the applicant would suffer hardship by being separated from [Ms A]. However, it notes that as a result of the intervention order they have been separated for a substantial period of time already. Nevertheless, [Ms A] evidence was that she had only a short time remaining to complete her course in Australia. At the end of her course she will be required to return to Sri Lanka in accordance with the terms of her student visa, upon which she can be re-establish her relationship with the applicant. Any hardship the applicant may suffer as a result of their separation is minor and only for a relatively short period.

7. As such, the Tribunal places little weight in the applicants favour in relation to this consideration.  

Circumstances in which ground of cancellation arose.

1. However, the circumstances upon which grounds of cancellation arose were as a result of the applicant having been charged and convicted of the [Court 1] and [Court 2] offences referred to above. The applicant’s evidence was that he had no recollection of the events [in] June 2019 but did not deny that they occurred. The Tribunal notes that the applicants plead guilty to both the [Court 1] offences and the [Court 2] Offences. 

2. The applicant’s actions against [Ms A] [in] June 2019 are serious in nature and display disturbing lack of control, perspective and self-awareness by the applicant. In addition his repeated breaches of the Intervention Order display a complete disregard for the law and for the safety of [Ms A].

3. The applicant claims that he was under a lot of emotional and financial stress at the time of the incident. He claims that in or about January 2019 his mother had suffered [an injury] and was admitted to hospital. He claimed that she was already suffering for [another] condition and as a result of her condition her hospitalisation as a result of her [injury] caused both emotional and financial stress for his family. As a result he claimed that he became very depressed.

4. The applicant claims that [in] April 2019 he was taken to [Clinic 1] by [Ms A] due to a sudden onset of confusing behaviour which he claims included symptoms of nonsensical speech, delusions and disorganised behaviour. He claims that he was admitted to hospital via the emergency department where doctors diagnosed his condition as being a temporary psychosis due to lack of sleep and over thinking. When asked about his over thinking he said that it related to his family’s financial pressure, including moving from his [Suburb 1] premises to the [Suburb 2] property, losing his part time job and his mother’s condition.

1. The applicant claims he suffered a relapse on [a date in] May 20189 and was treated by [the Ambulance service] and was prescribed anti-depressants by his doctor. As a result his parent became increasing worried about his health and asked him to return to Si Lanka The applicant’s evidence was that he returned to Sri Lanka [in] May 2019 where he was treated by a consultant psychiatrist at [Hospital 1]. The applicant provided to the Tribunal a medical report dated 10 June 2019 by [Psychiatrist A] of [Hospital 1] which confirms [Psychiatrist A] treated the applicant for depressive disorder during his stay in Sri Lanka. However, the report states that the applicant ‘is now recovered and fit to resume his studies.’  

2. Therefore, based on the reports provided by the applicant, the Tribunal accepts that in or about April and May 2019 the applicant was suffering for a depressive disorder. However, it notes that at the time of his attack on [Ms A] [in] June 2019 the applicant had been diagnosed by [Psychiatrist A] as having recovered from his depressive disorder. Accordingly, there appears to be no reasonable excuse for his actions against [Ms A] and his subsequent breaches of the Intervention Order. 

3. The Tribunal notes that while the report dated 20 September 2019 by [Psychiatrist B], Clinical Psychiatrist refers to the fact that the applicant has recognised the need for greater understanding of ‘self’ and the need to learn ‘emotional regulation’ to prevent any future inappropriate emotional outbursts, it makes no mention of his ability of being able to control such outbursts.

4. In the absence of any medical evidence that indicates that the applicant is able to control his emotional outbursts, the Tribunal does not accept the evidence of [Ms A’s] that the applicant is unlikely to repeat his action in the future. The Tribunal notes that she has been separated for him for many months as a result of the Intervention Order and not in a position to be able to evaluate his capacity to re-offend. Accordingly, the Tribunal prefers the report of [Psychiatrist B] and as such is not satisfied that the applicant currently has the ability to exercise emotional restraint to the extent that the health good order and safety of any an individual or individuals will not be at risk.  As such, the Tribunal is satisfied that the applicant does represent a risk to the health or safety of an individual or individuals, in particular [Ms A’s].

5. The Tribunal notes that the Australian Government is committed to the taking action against domestic violence and seeks to be free of violence and abuse of women and children.[3]  Accordingly, the Tribunal gives this consideration no weight in the applicant’s favour in relation to this consideration. In fact it is a matter upon which the Tribunal places considerable weight in its consideration in favour of cancelling the applicant’s visa.

Past and present behaviour of the visa holder towards the department

[3]    National Plan to reduce violence against women and their children. Third Action Plan 2016-2019 of the National Plan to reduce violence against women and their Children 2010-2022 Commonwealth of Australia; type="1">

The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Whether there would be consequential cancellations under s.140

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

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations.

Mandatory legal Consequences.

1. If the visa is cancelled the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

2. In addition the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 as a result of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

3. The Tribunal gives some weight to this consideration in the applicants favour.

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

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

DECISION

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

Jason Pennell
Senior Member

Key Legal Topics

Areas of Law

• Administrative Law

• Immigration

Legal Concepts

• Judicial Review

• Natural Justice

• Procedural Fairness

• Jurisdiction