Aguad Martinez (Migration)

Aguad Martinez (Migration) [2020] AATA 5274 (29 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Fadia Francisca Estefania Aguad Martinez
CASE NUMBER:  1934485
HOME AFFAIRS REFERENCE(S):          BCC2019/5338258
MEMBER:Antoinette Younes
DATE:29 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 29 September 2020 at 9:54am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – risk to the health or safety of an individual – applicant convicted of offences – guilty plea on legal advice – applicant ceased studies – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 119, 359
Migration Regulations 1994, 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 29 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)(g) on the basis that the applicant has been convicted of an offence against a State law. 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 by telephone before the Tribunal on 23 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone
The applicant was represented in relation to the review by her registered migration agent.
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
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?
s.116(1)(g) - prescribed ground
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(1)(oa) is relevant. Regulation 2.43(1)(oa) states, amongst other things, that in the case of a holder of a temporary visa excluding the holders of subclasses 050, 051, and 444 visas, the Minister is satisfied that the visa holder has been convicted of an offence against a Commonwealth or State or Territory law.
In the course of the 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. Relevantly, the decision record notes that information received from NSW Police indicates that on 14 October 2019, the applicant was convicted in the Downing Centre Local Court of the following offences:
·Destroy or damage property less than or equal to $2000;
·Stalk/intimidate intend fear physical etc harm (personal);
·Common assault;
·Hirer fail to pay any unpaid amount of the fare.
The Court imposed penalties in total of $1320 in fines and a Conditional Release Order for a period of 12 months.
Notice of Intention to Consider Cancellation (NOITCC)
On 11 November 2019, the Department sent a s.119 NOITCC to which the applicant responded on 18 November 2019. In the response, the applicant provided her version of events and essentially stated that she entered a guilty plea on legal advice.
Evidence at hearing
In the course of the hearing, the applicant stated that she pleaded guilty on legal advice. She stated that she does not agree with the charges in that she did not assault anyone or refused to pay fares. She stated that she is not an aggressive person. In accordance with s.359AA, the Tribunal discussed with the applicant relevant parts of the Facts Sheet in relation to two incidents, one occurring in July 2016 and the more recent one that occurred in October 2019, both of which refer to displays by the applicant of aggressive behaviour. The applicant did not agree and contended that she is not an aggressive person. In submissions, reference was made to her weight of 45 kilos (and height of 5.1ft) suggesting a practical difficulty in intimidating and assaulting. Two witnesses gave evidence commenting on the applicant not being an aggressive person, although one of the witnesses, Ms Wakefield did not know of the conviction relating to common assault.
In support, the applicant provided to the Tribunal, amongst other things, copies of a Court receipt showing payments and an outstanding amount of $2490 (as at 3/9/20) and police certificates from Chile and New Zealand which show that the applicant has no convictions recorded in those countries.
The Tribunal explained to the applicant that it is not the Tribunal’s role to make findings of guilt or innocence in relation to the charges and that the Tribunal must accept the conviction as evidence of guilt in relation to the charges.
The Tribunal has noted the applicant has a different version of events although she does accept that she has been convicted. The Court’s finding is that the applicant has committed the offences with which she was charged. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point.
It is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings as evidence of guilt. Accordingly, the Tribunal finds that the applicant has been convicted of offences which the Tribunal considers to be serious, as they involve physical harm to others.
For those reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) r.2.43(1)(oa) 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, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant was granted the student visa to undertake studies in Australia and she was enrolled in a Certificate IV in Marketing and Communication. The applicant gave evidence that she has not continued studying due to the cancellation of her visa. In submissions, the representative noted that the applicant came to Australia at a great expense to study marketing and communications, due for completion in October 2020. She started working with autistic children but ceased due to the visa issues. Subsequent to cancellation, the applicant lost motivation to study and has not completed the course.
The applicant gave evidence that she has remained in Australia as she would like to complete her studies. She also referred to travel restrictions due to COVID-19 and having the cancellation issue resolved.
The Tribunal is satisfied that the applicant has studied and that she would like to complete her studies, consistent with the purpose of the student visa she was granted. The Tribunal gives weight in her favour in this regard.
However, on balance, the Tribunal is not satisfied that she has a compelling need to remain in Australia. She has ‘lost’ her motivation to study, the cancellation issue would be resolved when the review is finalised (unless the applicant appeals) and travel restrictions because of COVID-19 mean that she would likely remain in Australia until those restrictions are eased. The Tribunal cannot comment on or predict when those restrictions would be lifted or eased. In any event, those restrictions apply to all travellers and are not unique to the applicant or represent compelling circumstances.
·the extent of compliance with visa conditions
There is no evidence before the Tribunal of non-compliance with visa conditions.
The Tribunal gives this aspect neutral weight.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts the submissions that the applicant is a young person who came to Australia to study and that cancellation has the consequence of her not being able to complete her studies. The Tribunal accepts that the cancellation could potentially impact her ability to travel to other countries, including Asia to train in yoga. The Tribunal acknowledges that the applicant could suffer financial, emotional, and psychological hardship due to the cancellation and that she and her family saved money to come to Australia to study in an English-speaking country to assist her in obtaining a new role with her previous employer in Chile.
The Tribunal gives this consideration weight in favour of the applicant.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the cancellation arose are that on 14 October 2019, the applicant was convicted in the Downing Centre Local Court and the Court imposed penalties in total of $1320 in fines and a Conditional Release Order for a period of 12 months, in relation to the following offences:
·Destroy or damage property less than or equal to $2000;
·Stalk/intimidate intend fear physical etc harm (personal);
·Common assault;
·Hirer fail to pay any unpaid amount of the fare.
In essence, the applicant does not agree with the versions of events that led to the conviction. For the earlier stated reasons, it is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings as evidence of guilt.
In submissions to the Tribunal, the representative provided background information about the applicant and contended that the delegate erred by failing to apply PAM3. The representative argued that the delegate gave little weight to the applicant’s circumstances and that the ground for cancellation arose due to circumstances beyond the applicant’s control. The Tribunal is not persuaded on the evidence that the conviction was beyond the applicant’s control. The applicant pleaded guilty on legal advice and the Court accepted the plea and imposed a fine and a Conditional Release Order. The applicant has not appealed the Court’s decision and the Tribunal must assume that the Court considered all relevant matters.
The Tribunal gives this consideration significant weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The applicant responded to the NOITCC.
The Tribunal gives this consideration weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellation under s.140.
The Tribunal gives this consideration neutral weight.
·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 cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia, when she is able to due to COVID-19 restrictions. The applicant would also be impacted by s.48 of the Act which means that she may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.
The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences.
The Tribunal gives this aspect neutral weight.
·whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child.
There is no information before the Tribunal to suggest that Australia would be in breach of any of its international obligations, such as non-refoulement obligations in the event of cancellation.
The Tribunal gives this aspect neutral weight.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The subclass 500 is not a permanent visa. However, the Tribunal asked the applicant about her family situation in Australia. She stated she has many friends but only one cousin who has been in Australia for 30 years.
The Tribunal does not view her circumstances as demonstrating strong ties family or otherwise with Australia.
·any other relevant matters
In the course of the hearing, the Tribunal discussed with the applicant the completion of the subclass 500 visa application form in order to understand if there was disclosure of information in relation to the pending charges relating to the 2016 incident. She stated that she told the agent who completed the form. As breach of s.101(b) of the Act was not a ground for cancellation, the Tribunal makes no findings in this regard and has not used this issue in any adverse manner to the applicant.
The Tribunal acknowledges the applicant’s work in Australia with children with autism and gives this weight in her favour.
There are no other matters requiring consideration.
Concluding remarks
The Tribunal has carefully considered the material before it individually and cumulatively.
There are limited aspects in the applicant’s favour, such as not being able to continue her studies. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation. The applicant has been convicted of offences relating to two incidents, in 2016 and 2019, involving violence against others. Despite pleading guilty on legal advice, she has disagreed with the essence of the versions of events that led to the conviction and contended that she pleaded guilty because of the legal advice. The Tribunal respects the findings of the Court and the Tribunal has no role in making any findings contrary to the Court’s findings. Overall, the considerations in her favour do not outweigh those in favour of cancellation.
The Tribunal has decided that the ground for cancellation exists and that having regard to all the relevant circumstances, as discussed above, 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 Younes

Senior Member

[2020] AATA 5274

29 September 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal