Adhikari (Migration) - [2021] AATA 3789

Adhikari (Migration) [2021] AATA 3789 (18 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dheeraj Adhikari
CASE NUMBER:  2003812
HOME AFFAIRS REFERENCE(S):          BCC2019/4809567
MEMBER:Antoinette Younes
DATE:18 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Statement made on 18 August 2021 at 5:55 PM

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – criminal conviction – applicant breached condition 8202 – non- enrolment – applicant gave to the Tribunal a bogus document – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 116, 359
Migration Regulations 1994 (Cth), r 2.43
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 February 2020 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).
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of several offences against NSW laws. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 2 June 2021 and 11 August 2021 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
SECTION 375A CERTFICATE
In the course of the hearing, the Tribunal discussed with the applicant the existence in the Departmental file of a s 375A Certificate which, as a result of not being signed, the Tribunal determined was invalid.
The Tribunal advised the applicant that the information referred to in the Certificate essentially relates to communications between the Department and the Police about the circumstances surrounding the charges, including a Facts Sheet. The applicant confirmed that he has a copy of the Facts Sheet. The Tribunal notes that the delegate’s decision record provides the relevant summary.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
Section 116(1)(g) - prescribed ground
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adhikari (Migration)

Details

AGLC: Adhikari (Migration) [2021] AATA 3789
Case: [2021] AATA 3789
Decision Date: 18 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Adhikari, who sought review of the Minister's decision to cancel his Subclass 500 (Student) visa. The cancellation was based on Mr. Adhikari's criminal convictions and his breach of visa condition 8202, which relates to enrolment in a course of study. The Tribunal also considered whether a document provided by Mr. Adhikari was a "bogus" document.

The primary legal issue before the Tribunal was whether the grounds for visa cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth) were established. This section permits the Minister to cancel a visa if satisfied that a prescribed ground applies, which in this instance, was regulation 2.43(1)(oa) of the *Migration Regulations 1994* (Cth). This regulation prescribes that a temporary visa may be cancelled if the holder has been convicted of an offence against a law of the Commonwealth, a State, or Territory. A secondary issue was whether the Tribunal should exercise its discretion to cancel the visa, considering all relevant circumstances.

The Tribunal found that Mr. Adhikari had been convicted of seven offences in Newcastle Local Court on 28 November 2019, including offences related to dishonesty and deception. These convictions satisfied the prescribed ground for cancellation under section 116(1)(g) and regulation 2.43(1)(oa). The Tribunal then considered its discretion, noting Mr. Adhikari's desire to complete his IT studies. However, it found that a letter of offer he provided from SBTA was questionable due to inconsistencies in dates, and Mr. Adhikari's explanation for this discrepancy was unsatisfactory. The Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel Mr. Adhikari's Subclass 500 (Student) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal advised the applicant that the information referred to in the Certificate essentially relates to communications between the Department and the Police about the circumstances surrounding the charges, including a Facts Sheet. The applicant confirmed that he has a copy of the Facts Sheet. The Tribunal notes that the delegate’s decision record provides the relevant summary.CONSIDERATION OF CLAIMS AND EVIDENCE 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?Section 116(1)(g) - prescribed ground A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Section 116 provides:(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (g) a prescribed ground for cancelling a visa applies to the holder. The prescribed grounds for cancellation under s 116(1)(g) are found in reg 2.43(1)(oa) of the Regulations, which provides: (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 the following: (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)); During the first hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. The delegate’s decision record indicates that the Department received information from the NSW Police, that on 28 November 2019, the applicant was convicted at Newcastle Local Court of the following seven offences:· Unlawfully obtain goods (personal custody) - Fine $500.00.· Dishonestly obtain financial advantage or cause disadvantage by deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.· Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.· Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.· Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.· Deal with identification information to commit, facilitate commission of an indictable offence - deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.· Dishonestly obtain property by deception - Convicted and sentenced to a Community Correction Order for a period of two years to commence on 28 November 2019.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

For those reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion 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 visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia The applicant arrived in Australia in January 2018 to undertake studies in IT. He stated that he has not completed the bachelor’s degree and that there is one semester left. He told the Tribunal that the University of Newcastle cancelled his enrolment as a result of the cancellation of his visa. He stated that he has obtained advice to enrol in other courses, but he was unable to do so as the educational institutions would not accept his enrolment due to the visa cancellation. The applicant stated that he undertook an English course because he was advised to undertake studies. The applicant gave evidence that he would like an opportunity to complete his studies in Australia. He stated that he has completed 25 subjects of the bachelor’s degree in IT and only has one subject remaining. The applicant provided to the Tribunal a letter of offer dated 23 March 2021 from SBTA in the General English Course to commence on 23 September 2019 until 15 November 2019. He said it was the only offer he could get given the visa cancellation. During the first hearing, he said he paid $250 as an application charge. The Tribunal subsequently wrote to the applicant requesting clarification about the letter of offer, namely the reference to the offer being made in March 2021 but in relation to a course in 2019. The applicant did not respond to that request. The Tribunal also wrote to SBTA seeking confirmation about the letter and no response was received.Section 359A letter and response The Tribunal sent to the applicant a s 359A letter, stating, among other things:You provided to the Tribunal a letter of offer dated 23 March 2021 from SBTA (The Sydney Business and Travel Academy) in the General English Course to commence on 23 September 2019 until 15 November 2019. The Tribunal wrote to you requesting clarification about the letter of offer, namely the reference to the offer being made in March 2021 in relation to a course in 2019. You did not respond to that request. The Tribunal also wrote to SBTA seeking confirmation about the letter and no response was received. The Tribunal is concerned about this letter as it could be a ‘bogus’ document… On 5 July 2021, the applicant responded to the Tribunal, stating as follows:I only provided the Offer Letter I was offered by an agent to which I met online after a quick google search. For the Offer Letter I was charged AUD $250. And I never told I am currently studying English as much as I call. What I recall saying is I can only get the offer letter for the English course only as I currently do not hold a valid Student Visa. I did provide you with a letter of offer from SBTA in General English Course because the agent I was in contact provided me the letter of offer. I have absolutely no idea about the letter of offer being original or ‘bogus’ at this point of time because the agent I was in contact with has stopped responding to my e-mails and the contact number he has provided to me; now I cannot get through as it is currently un available…I can provide you the agents number and e-mail if required and also provide you the Bank Statement as a proof that I paid AUD $250 to get the service and Offer Letter from the agent…As I can no longer get in touch with my previous agent I did contacted with ESI Global which is an Education and Migration Consultant and they are willing to provide me the Offer Letter and Enrolment for the final subject of My Bachelor’s Degree.