Adhikari (Migration) - [2020] AATA 3429

Adhikari (Migration) [2020] AATA 3429 (29 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Megh Raj Adhikari
CASE NUMBER:  1932916
HOME AFFAIRS REFERENCE(S):          BCC2019/4173400
MEMBER:Ann Duffield
DATE:29 June 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 29 June 2020 at 8.10am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to a segment of the Australian community – applicant charged with offenses – applicant facing court – remaining in the community on strict bail conditions – presumption of innocence – visa has ceased – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
CASES
Cai v MICMSMA [2020] FCCA 1225
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 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).
The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the delegate found 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. The delegate formed that view on the grounds that the applicant has been charged with a number of serious sex offences. 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 17 June 2020 via teleconference to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Nepalese/English languages. The applicant was also given permission to provide a written submission after the hearing, which he did, on 24 June 2020.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.
The applicant is a citizen of Nepal born on 19 January 2000 (20 years old). He first arrived in Australia on a student visa on 7 March 2018. That visa was valid until 15 March 2020 (ie, it has ceased). He is currently on a Criminal Justice Stay Visa in relation to his current charges which remains valid until his matter is finalised in the courts.
According to information from the NSW Police, it is alleged that on 28 April 2018 the applicant committed a number of serious sexual offences against a member of the Australian community. The applicant was charged with those offences on 20 August 2019 and is facing court in relation to those matters in around October 2020. His visa was cancelled as a result of those charges on 15 November 2019.
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)(e)(i). 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.
The Tribunal wrote to the applicant on 20 May 2020 inviting him to attend a hearing on 17 June 2020. On 9 June 2020 the Tribunal again wrote to the applicant and put his criminal record and the witness accounts before him, informing him that it would discuss those matters at the forthcoming scheduled hearing set down for 17 June 2020 at 12.30pm. The applicant was informed that depending upon his response to that information it may form the reason or part of the reason for affirming the decision under review.
The applicant responded to the Tribunal’s letter on 9 June 2020 seeking a period of two weeks before he appeared at a hearing. He claimed that he only received the invitation to the hearing on 8 June 2020 as he had failed to check his emails for a long time. He claimed to not have the money to afford an agent and was uncertain of what documents and evidence he needed to provide and submit to the AAT.
The Tribunal considered his response and refused it, writing to him again on 10 June 2020 informing him that the hearing would still proceed at the scheduled time. The applicant was informed that the Tribunal would consider any further requests from him for additional time at the hearing.
Does the ground for cancellation exist?
s.116(1)(e) - risk to Australian community or individual
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].
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.
The applicant has been charged in the State of NSW with the following offences:
a.Sexual intercourse without consent, subsection 61(i) of the Crimes Act 1900 (two counts);
b.Assault with act of indecency, subsection 61(1) of the Crimes Act 1900 (two counts).
The applicant denies the charges and claims he is intending to fight them in court.
In his response to the Notice of Intention to Cancel his visa (and in his subsequent submission after the hearing), the applicant submits that it is premature for the Tribunal to make a decision before the court has made a finding. The applicant drew the Tribunal’s attention to the Federal Court matter in Gong v Minister for Immigration and Border Protection & Anor which held that the AAT made a jurisdictional error by inferring that there was a reasonable basis for police charges. The applicant submits that a police charge is not “evidence” but an untested and unproven allegation of criminal conduct. The applicant further submits that he is required to report daily to the Surry Hills Police Station between 8am and 8pm and remains on a curfew in his residence from 8pm to 6amd. He has surrendered his passport and due to these conditions, the applicant does not pose a risk of harm to the community. Therefore, the applicant submits, the ground for cancellation does not exist.
The Tribunal has taken note of that submission and further notes the following; in the matter Cai v MICMSMA [2020] FCCA 1225, the court held that:
the Tribunal did not fall into jurisdictional error by considering whether it was lawful to make its decision prior to the conclusion of the criminal trial rather than whether or not it should proceed in the exercise of discretion. The Tribunal considered the applicant’s representative’s submission and found that it would not be unreasonable for it to proceed to make a decision prior to the conclusion of the County Court trial. The Tribunal explained its reasons for doing so and those reasons were based on the evidence it. There was an intelligible basis for the Tribunal to proceed to determine the matter rather than adjourning the hearing until after the conclusion of a County Court Trial.
The Tribunal will keep all the relevant matters in mind in the consideration of the applicant’s evidence and the finding of facts below.
The Tribunal put to the applicant that it was not its purpose to make findings on his guilt or innocence of the charges he faces, but to find whether grounds for cancellation exist. The applicant was cautioned in relation to discussing matters about the charges as anything he said and recorded at the hearing may be accessible to any forthcoming court proceedings.
The applicant has been charged with some serious offences in relation to sexual assaults against a young woman with whom he had a brief acquaintance. The statement of the victim to the police, whilst not tested in a court, is detailed, specific and harrowing.
The Tribunal notes that the applicant remains in the community on strict bail conditions which require reporting regularly to the local police station. He is also subject to a curfew. On these grounds he maintains he is of no risk to the community of women or to the alleged victim. However, the Tribunal’s threshold question does not require it to form a view that the applicant is of “no” risk, only that he is or may be a risk. Indeed, the fact that the applicant is subject to such strict conditions is a strong indication that the courts considered the applicant’s activities would or could “have an impact on public activities, or which manifest themselves in a public way” and that there is “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”. (Tien v MIMA (1998) 89 FCR 80).
Even so, according to the police reports there have been several occasions when the police have been unable to locate the applicant during his curfew hours. The Tribunal put these matters to the applicant at the hearing. The applicant claims that he was unable to afford the rent at his nominated address and had moved into another apartment with a friend (in the same building). Whilst his friend has confirmed this, the applicant and his agent also confirmed that they had not notified the Courts of this change of address. In the Tribunal’s mind, however, such lapses point to a degree of indifference on the part of the applicant towards his obligations and the seriousness of the charges that have been made against him. The applicant told the Tribunal there have been no further lapses and that he remains compliant with his bail conditions.
The Tribunal put to the applicant its concerns in relation to the severity of his bail conditions and suggested to him that this may indicate the courts concerns about the risk he poses. The applicant insisted he was no risk and said that the fact that he was out on bail is an indication that the courts did not consider him a risk.
The tribunal gave the applicant an opportunity to either respond to its concerns during the h earing of take additional time to respond to the Tribunal’s concerns in writing through a submission after the hearing. The applicant and his adviser conferred and informed the Tribunal that they would take the opportunity to provide a written submission. The Tribunal received that submission on 24 June 2020.
The applicant submitted, again, that the fact his on strict bail conditions prevents him being of any risk to the Australian community. He states he has complied with his bail conditions and been on good behaviour. He has no criminal record in Nepal. He also states that the fact that the department has given him a criminal stay visa indicates that they do not consider him a risk to the community.
The applicant’s strong submission is that he is innocent until proven guilty and the tribunal has no grounds to cancel his visa.
Whilst acknowledging those conditions of his bail do constrain the applicant’s activities somewhat, the Tribunal has formed a different view. The Tribunal has given the most weight to the fact that the applicant has been committed to face trial for some serious sexual assault charges. These alleged assaults were against a woman who was a new acquaintance and with whom he did not have an intimate relationship. Those charges have not been amended or dropped.
The Tribunal does not agree with the applicant’s submission that the department’s decision to give him a Criminal Justice Visa instead of having him detained is a proof, or even an indication that they do not consider him a risk to the Australian community. It seems to the tribunal that the very fact that they cancelled his visa on the basis that he is a risk to the Australian community or a segment of the Australian community (being woman) is proof itself that they consider him a risk. The fact that he is not in detention but remains lawful is not an indication that they consider the risk mitigated in some way.
The relevant legislation at s.116(1)(e)(i) only requires that the Tribunal is satisfied that the visa holder’s presence 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 – in the present case, that being of women.
The Tribunal finds that the laying of such serious charges, meet the low threshold of the requirements in s.116(1)(e)(i) such that the Tribunal finds that grounds for cancellation do exist.
Consideration of discretion / conclusions
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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 Tribunal has considered the following matters:
the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant arrived in Australia on a student visa in March 2018 which was valid until March 2020 – that is, the visa is no longer be in effect. However that visa was cancelled on 15 November 2019 at a time that it was still in effect, The applicant remains in Australia lawfully on a Criminal Justice Visa until his matters are settled in the Courts.
The applicant has indicated that he wishes to continue his studies in Australia but as he has no student visa at the present time, the Tribunal assumes that there is no application to an educational institution to present as evidence of his intentions. In any case, the applicant has completed the course in which he had enrolled and for which his visa was originally granted. Whilst the Tribunal accepts that he wishes to continue his studies, it does not consider the purpose for remaining in Australia as so compelling such that the Tribunal would not cancel the applicant’s visa. `
the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with his other visa conditions.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant arrived in Australia in March 2018 and committed the alleged offences in April 2018. He claims to have completed his studies. He does not have a spouse or family in Australia or overseas. The applicant claims that the impact of the cancellation of his visa on his parents, family and himself will be traumatic and profound. He will not be able to come back to Australia or any other country to complete his studies.
The Tribunal recognises that the cancellation of his visa will mean that his capacity to complete his studies in Australia will be adversely affected. The Tribunal does not find that such hardship is of the kind that would be caused to the applicant to so compelling such that the Tribunal would consider no cancelling his visa.
circumstances in which ground of cancellation arose
The applicant committed the alleged sexual assault offences within weeks of arriving in Australia. He denies all the claims made against him. The applicant’s strong submission is that his visa not be cancelled as he is innocent until proven guilty. The applicant’s visa was cancelled as a result of serious criminal charges which remain unaltered and extant. The applicant admitted that the charges have neither been altered nor dropped.
As he claims to be innocent of the charges the applicant does not believe that grounds for cancellation exist, and hence, that there are no circumstances for the Tribunal to consider adverse or for which he could be held responsible. However, the grounds for cancellation under the provisions of s.116(1)(e) allow for the visa to be cancelled where charges exist. The question of whether the applicant is guilty is not for the Tribunal to make.
past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal that the applicant has not engaged with the department or that his behaviour in relation to them has been adverse.
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
The applicant submits that the legal consequences of the cancellation of his visa would be significant. If he is removed or deported from Australia, he will be prevented from applying for many kinds of visas to return to Australia and further claims he will not be eligible to apply to any other countries. This he claims will ruin his live and give rise to mental and financial difficulties leading to depression, mental tension and trauma for both himself, and his family.
The Tribunal can make no comment about the impact of the cancellation on his prospects in other countries. The applicant has provided no evidence that such consequences will arise. And in any case, that is a matter for the laws of those countries and is something about which the Tribunal is unable to comment.
In relation to the consequences of his further travel to Australia, that is the intention of the legislation and is not something that the Tribunal finds compelling such that it would consider not cancelling the applicant’s 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
There are no submissions before the Tribunal that the return of the applicant to Nepal would result in a breach of Australia’s non-refoulement obligations. The applicant has no children and hence the Tribunal does not find that Australia’s obligations in relation to children would be breached.
if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The applicant arrived in Australia on a temporary student visa that ceased on 20 March 2020. He is currently on a Criminal Justice Stay Visa until his court matter is resolved. The applicant was working part time as a salad chef. He has no other family in Australia or strong ties of any kind. The Tribunal does not consider that these factors weigh heavily in the applicant’s favour such that the Tribunal would consider not cancelling his visa.
any other relevant matters

The Tribunal does not find there are any other relevant matters for consideration.
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.
Ann Duffield
Senior Member