Acharya (Migration)

[2024] AATA 2522

Acharya (Migration) [2024] AATA 2522 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sujan Acharya

REPRESENTATIVE:  Mr Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2216013

HOME AFFAIRS REFERENCE(S):          BCC2022/3165269

MEMBER:David McCulloch

DATE:8 February 2024

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2024 at 9:54am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – convicted of use carriage service to solicit child abuse material – consideration of discretion – no extenuating circumstances beyond the applicant’s control – level of risk to the community – untruthfulness and lack of respect for authority – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 October 2022 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 (Cth) (the Act).

2. The applicant is a citizen of Nepal born on 11 April 2002. The visa that has been cancelled was granted on 16 March 2022 with a stay period until 24 October 2022.

3. The applicant on 13 September 2022 was sent by the Department a Notice of Intention to Consider Cancellation (NOICC) of the visa which was responded to by the applicant’s representative.

4. ­The delegate cancelled the visa under s 116(1)(e). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 25 January 2024 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. At certain points in the hearing the applicant used the interpreter and at other times English was used.

6. The applicant was represented in relation to the review. The representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds set out in s 116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s 116(1)(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: Gong v MIBP [2016] FCCA 561, at [41].

10. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s 116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) 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.

11. The delegate’s decision in cancelling the visa indicates that the applicant was charged by New South Wales Police on 27 July 2022 for committing the following offence:

    3 x Use carriage service to solicit child abuse material

12. On 1 December 2023 the New South Wales Police advised as follows in relation to the hearing by the court of the charges:

    Sujan ACHARYA was sentenced yesterday, please see below;

    The Offender was convicted and sentenced to a term of imprisonment for 1 year, 7 months, but directed pursuant to s 20(1)(b) Crimes Act 1914 (Cth) that he be released forthwith upon entering into a recognizance release order, self, in the amount of in the sum of $1000, without security, and subject to the following conditions:

    1.You are to be of good behaviour for a period of 2 years

    2.You are to continue psychological counselling with Saime Dilek or such other psychologist as nominated by her or your medical GP for as long as one or other considers necessary and other treatment as the relevant psychologist considers beneficial to you

    3.You are to be subject to the supervision of a probation officer and obey all reasonable directions of that officer

    4.You are not to travel interstate or overseas without the written permission of that officer

    5.You must undertake such other treatment or rehabilitation that the probation officer reasonably directs

    6.You are to report to the Community Corrections Order within 7 days at Parramatta

    The indicative sentences were:
    Seq 1: IMP 13 months TDF 30/11/2023, EXP: 29/12/2024
    Seq 6: IMP 13 months TDF: 29/02/2024, EXP: 28/03/2025
    Seq 7: IMP 13 months TDF: 29/05/2024, EXP: 29/06/2025

13. In the hearing the applicant acknowledged the convictions and sentences indicated above, apart from the fact that the applicant has not yet paid any fine and will only do so if he breaches other sentencing orders.

14. The Tribunal has the New South Wales Police Facts Sheet detailing the allegations against the applicant. It makes the following allegations. It indicates that the applicant and the victim met at work in June 2022 where they were both employed as kitchen hands. They had known each other less than 72 hours prior to the alleged offences. On the evening of 25 June 2022 the applicant and the victim were together in the kitchen of the restaurant where they worked. The applicant asked the victim how old she was and she replied she was 15 years old. The applicant indicated that he was 20 years old and asked for the victim’s Instagram details.  The applicant and victim determined each other’s Instagram profiles. They then commenced ‘following’ each other effectively allowing them to message each other and view each other’s photographs.

15. After leaving work the victim at around 10:30 pm received a message on Instagram from the accused which simply read ‘hi’.  Over the next 72 hours they exchanged messages of a sexual nature, a large portion of which have been retained by police. At the applicant’s request the victim sent the applicant pictures of her breasts, both in a bra and without, and pictures of her vagina and pictures of herself performing sexual acts. It is indicated that the most predatory of the offending is when the applicant asked the victim if she has ever had sex with her pet dog to which she indicates she would never do that.

16. After three days it is alleged that the severity of the applicant’s offending became apparent to him and he requested that the victim delete the message thread and be casual when they were at work. The applicant then unfollowed the victim’s Instagram account and changed the name of his own account.

17. The applicant was arrested on 27 July 2022. When made aware of the allegations he immediately stated that his phone has been hacked and it was not him who sent the messages to the victim. When interviewed later the applicant initially maintained that the phone was hacked and denied requesting intimate images from the victim. Once shown the message thread he changed his version and gave full and frank admissions stating, ‘she made me horny’. The applicant acknowledges that he knew the victim was 15 years of age and that by requesting intimate images he was committing a criminal offence. The applicant stated that he cleared the messages as he knew that if police were to locate the messages on his phone he would be likely deported.

18. The Tribunal put to the applicant in the hearing information in the New South Wales Police Facts Sheet pursuant to the procedural requirements of s 359AA of the Act. The Tribunal indicated the allegations leading to the convictions indicate inappropriate behaviour in relation to a person he knew to be under 16 years of age in terms of soliciting sexually explicit personal images. The New South Wales Police Facts Sheet specifically indicates that he knew that the victim was under 16 years of age and the applicant could be deported for the receiving of the images. The Tribunal indicated that the information is relevant because, together with the conviction, indicates that the applicant at least might be a risk to the Australian community. The information is also relevant because the factual circumstances of the offences and conviction could be considered in terms of discretionary factors that the applicant engaged in criminal activity which has obviated his right to be in Australia on the privilege of holding a student visa.

19. The applicant elected to respond orally in the hearing and in doing so the Tribunal indicated it would take into account explanations already provided. In response, the applicant indicated that the victim told the applicant that she was 16 years of age and that it was she that proactively took the applicant’s mobile phone and provided her Instagram details. The applicant indicated the victim subsequently indicated that she was sexually active. The applicant also indicated that he Googled information on the Internet which confirmed that he would be able to engage sexually with a person of the age of 16 years. The applicant indicated that the victim was pressuring the applicant to buy the vapes for her and that threats were made to expose the applicant if he refused to do this.

20. The applicant and representative have made various submissions and provided statements and documents, both to the Department in response to the NOICC and to the Tribunal. That material indicates that the Instagram and other communications with the victim lasted for three days before the applicant deleted the victim from Instagram. The applicant’s statements indicated that he received messages from a number of other individuals including threats that the applicant would be in trouble with the police if he did not buy a vape. Provided to the Department were messages to the applicant from ‘Kaya’ which are racist and abusive. Examples of messages to the applicant from this person are:

    ·‘a migrant fucking dishwasher who gets off to child porn’

    ·‘anything over 12 months and ur deported’

    ·‘I’d love to get a piece of the curry’

    ·‘why does the government let ur people in’

21. It is submitted that the applicant is a victim of a number of malicious schoolgirls.

22. The Tribunal in the hearing indicated that the New South Wales Police Facts Sheet indicates the applicant admitting to police that he knew the victim was 15 years old and that he could be deported for having sent the sexually explicit images. The applicant indicated that he does not believe he made such admissions.

23. The Tribunal questioned the applicant why he pled guilty if he believed the victim was 16 years old. In response, the applicant indicated that this is what he had been advised to do by the representative.

24. The applicant and representative indicated that they had a recording of the applicant’s police interview. The Tribunal requested that the recording be provided following the hearing as well as providing a written summary of what the applicant indicates in the interview in terms of his knowledge of the age of the victim.

25. In response, provided was an extract of a recording of the police interview in which the applicant tells police that the victim told him that she was 16 years old. The Tribunal requested that the full recording of the interview be provided. That full recording indicates the applicant initially telling police the victim told him that she was 16 years old as well as indicating that his Instagram account was hacked and that he did not solicit sexually explicit images of the victim. However, as the interview progresses the applicant admits that at the time he requested the sexually explicit images, he knew that the victim was 15. He indicated that she originally told him in the restaurant that she was 16 but from online chats and a request from the victim for the applicant to buy her a vape, at this point he ascertained that she was 15.

26. The Tribunal is concerned that the applicant/representative contrary to the Tribunal’s request to provide the full interview and to provide an overview of its references by the applicant to the age of the victim only provided an extract from the interview in which the applicant indicates the victim told him she was 16 years old when on full listening to the interview, the applicant later retracts this evidence and admits that he knew the victim was 15 years old.

27. The Tribunal is concerned at this initial misleading evidence being provided following the hearing in the context of what the Tribunal asked for in the hearing.

28. The representative submitted in the hearing that the applicant currently holds a Criminal Justice visa.  It is submitted that this visa, entitling the applicant to live in the community, would not have been granted if there was a view that he was of risk to the community.

29. The applicant has been found guilty of the offences in question. The applicant, contrary to what he earlier untruthfully told the Tribunal in the hearing, knew the victim was 15 when he solicited the images. The knowing criminal conduct of the applicant in combination with the initial untruthfulness to police and untruthfulness to the Tribunal as to whether he told police that he knew the victim was 15, results in the Tribunal being persuaded that the applicant, at least, may or might be a risk to the community. The bar in determining whether the ground of cancellation is made out is very low. The Tribunal discusses the level of the risk in consideration of the exercise of its discretion.

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

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

32. There are no matters specified in the Act or the Migration Regulations 1994 (Cth) that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non refoulement obligations; and any other relevant matters.

33. In the hearing the applicant initially claimed that he was told by the victim that she was 16 years of age. The applicant then stated that this caused him to Google whether it was legal for him to solicit sexual images of the victim.

34. However, as it is confirmed from the Tribunal’s listening to the police interview, the applicant admits that he knew the victim was 15 years of age when he solicited the images. The deception of the applicant to the Tribunal is reinforced by him telling the Tribunal, clearly untruthfully, that he Googled whether it was legal to solicit sexual images from the 16 year old.

35. The Tribunal does not accept that there are extenuating circumstances beyond the applicant’s control relating to the circumstances in which the ground of cancellation is made out, in terms of him believing that the victim was 16 years of age. The Tribunal is prepared to accept that the victim may have had a motive in communicating and sending images to the applicant, that the applicant would buy for her a vape which she could not legally buy for herself. The Tribunal accepts that there has been a targeting of the applicant by individuals who clearly know about the sexually explicit images solicited by what the Tribunal is inclined to accept are friends of the victim. Certain messages are quite abusive and racist not inconsistent with claims that the applicant has been targeted by schoolgirls. However, these issues do not obviate the applicant from responsibility for soliciting images from an individual he knew to be a minor, compounded by the deception in the hearing by the applicant to the Tribunal, and initially to the police. The Tribunal takes into account the relevant youth of the applicant but this alone does not absolve the applicant for responsibility of committing the criminal offences.

36. In terms of level of risk of the applicant to the community, in the Tribunal’s view the risk of the applicant in terms of future criminal conduct and a risk to the community is not high, consistent with the applicant been granted a Criminal Justice visa. However, the Tribunal as indicated believes that there is at least a probability that the applicant ‘may’ or ‘might’ be a risk to the community.

37. Untruthfulness and lack of respect for authority from the applicant is indicated by his initial deception to police that his phone had been hacked as well as by untruthfully telling the Tribunal that he did not admit to police that he knew the girl was 15 years of age.  This untruthfulness was buttressed by the applicant in the hearing in indicating that, believing the girl was 16 years of age he had Googled whether it was legal to solicit sexual images from a person of this age which the Tribunal does not accept that he did.

38. In terms of hardship, the applicant indicated in the hearing that a key hardship would be his inability to complete his intended study and possible future work experience in Australia. The applicant indicates that he is currently undertaking a Certificate IV in Kitchen Management which he will complete in May 2024. The applicant has provided evidence of successful progress in these studies to date.

1. The applicant indicated that he needs to repay a loan taken out by his mother to fund the studies in Australia and his ability to do this will be impacted if his stay in Australia is cut short.

2. The applicant indicates that he then wishes to study a Diploma of Hospitality and then return to Nepal with the desire to be a chef. In contrast, the representative later in the hearing indicated that the applicant may well seek to work in Australia for two years after he finishes his studies on a 485 visa. When this was put to the applicant he confirmed that he may wish to obtain work experience in Australia before returning to Nepal.

3. In the hearing, the applicant indicated that when he first arrived in Australia in April 2022 he was studying a Certificate IV in Accounting and Bookkeeping which he studied for six months before switching to his current course. This was as a result of him working in a restaurant and deciding he wanted to switch his field of study to hospitality.

4. In the hearing the applicant indicated that he passed several units in the accounting and bookkeeping course which the representative indicated evidence would be provided after the hearing.

5. In response the applicant provided evidence of passing five units in this course.

6. The applicant indicated the hardship if the visa remains cancelled will be a ceasing of his work in Australia enabling him to send money to his mother, who is separated from his father. The applicant indicates that he is afraid of his father.

7. However, in the hearing the applicant indicated that in this respect the fear was not of the level that he would consider applying for a protection visa. The applicant confirmed his ultimate intention was to return to Nepal. That being the case, the Tribunal does not consider that Australia’s non-refoulment obligations are a relevant discretionary factor.

8. The Tribunal considers that there is not insignificant hardship to the applicant if the visa remains cancelled in terms of his potential inability to finish his desired studies and to gain work experience in Australia, potentially impacting the degree to which the applicant can pay off a loan undertaken in Nepal to fund studies. The Tribunal accepts some hardship in terms of broader family circumstances in terms of the applicant providing limited financial support to his mother in Nepal.

9. The applicant in the hearing indicated that there are no children in Australia whose interests are affected by the cancellation.

10. These in the Tribunal’s view are the relevant discretionary factors, which the Tribunal weighs.

11. The Tribunal takes into account in the applicant’s favour his positive study history in Australia, and the significant hardship to him if the visa is cancelled in terms of the applicant not being able to complete his hospitality studies and gain work experience. The Tribunal takes into account that the victim may have had an incentive to have the applicant purchase for her a vape which she could not purchase for herself. The Tribunal considers that there may be some truth in the claim that the applicant has been targeted by a group of schoolgirls. Certainly, individuals have bombarded the applicant after the events in question with abusive and racist comments although accepting that this has been motivated by the soliciting by the applicant as an adult of the images of the victim.

12. The Tribunal in the applicant’s favour takes into account that the risk of him reoffending is not high, even though there exists some degree of risk.

13. Allowances that the Tribunal might have made in deciding not to exercise its discretion to cancel the visa have been undermined by the applicant untruthfully in the hearing telling the Tribunal that he thought the victim was 16 years of age when he solicited the images. This is compounded by the applicant’s initial untruthfulness to the police that his phone had been hacked. While the Tribunal accepts that there may have been some opportunism by the victim, the Tribunal is not satisfied that there are extenuating circumstances beyond his control that explain or justify soliciting sexual images of a person he knew to be a minor leading to the ground of cancellation being made out.

14. Weighing relevant factors, the Tribunal determines to exercise its discretion to cancel the visa.

15. The Tribunal notes that on the Departmental file is a notice issued under s 375A of the Act preventing the disclosure of information in the New South Wales Police Facts Sheet and associated emails relating to the charges, referred to above. The nondisclosure is on the basis that it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law. It is also protected on the basis that it relates to information that was provided ‘in confidence’ that the provider of information has not consented to being disclosed. It contains only police and Australian Border Force information relating to the charges which are purely administrative and do not provide sensitive details of investigation methods or material provided in confidence.

16. The Tribunal, in the circumstances of the document protected, does not consider the nondisclosure notice is valid.

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

    DECISION

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

    David McCulloch
    Member