Ali (Migration)

[2022] AATA 2011

Ali (Migration) [2022] AATA 2011 (9 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Haris Ali

REPRESENTATIVE:  Mr Hussan Ahmad Sura

CASE NUMBER:  2201054

HOME AFFAIRS REFERENCE(S):          BCC2021/1904027

MEMBER:Brendan Darcy

DATE:9 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 09 May 2022 at 1:57pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – ‘convicted’ of an offence – recklessly deal with proceeds of crime – found guilty, but without proceeding to conviction – conditional release order – consideration of discretion – unsatisfactory academic progress – non-compliance with other visa conditions – seriousness of the offending – decision under review affirmed

LEGISLATION
Crimes Record Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 January 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 delegate cancelled the visa under s 116(1)(g) on the basis that the decision maker was satisfied the prescribed grounds in reg 2.43 were met. 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 27 April 2022 to give evidence and present arguments via an internet-enabled audio-visual platform (MS Teams).

4. The applicant was represented in relation to the review by a legal practitioner.

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.

7. 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.

8. In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

   Background

9. The applicant, a citizen of the Islamic Republic of Pakistan, arrived in Australia on 10 June 1999 while holding a Class TU Subclass 500 student visa. The student visa was granted on 2 July 2019. The student visa was set to expire on 25 January 2022.

10. The applicant had originally enrolled in foundational studies for university and a Bachelor of Health Sciences at the University of Western Sydney (UWS).

    Does the ground for cancellation exist?

    s 116(1)(g) - prescribed ground

11. 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 reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(oa) is relevant:

    ….
    (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));

12. In writing, the Department issued a Notice of Intention to Consider Cancellation (NOICC) which was sent to the applicant on 25 November 2021, by registered post. An emailed copy of the NOICC was also emailed to the applicant’s email address on the same date.

13. The NOICC outlined the particulars of the information for the ground for cancellation under s 116(1)(g). It stated:

COURT AND DATE	OFFENCE	RESULT/ SENTENCE
LIVERPOOL LOCAL COURT (NSW) 12 NOVEMBER 2021	RECKLYESS DEAL WITH PROCEEDS OF CRIME >$5000-T1	NON-CONVICTION PROVED. CONDITIONAL RELEASE ORDER W/O CONVICTION: 2 YEARS COMMENCING 12/11/2023 CONCLUING 11/112023. MONTETARY – COMPENSATION: $21800.

1. The NOICC further stated:

   There is no express definition of "conviction" in either the Migration Act or the Migration Regulations. However, under common law "conviction" is defined as the complete orders made by a court after finding an accused person guilty of an offence, including both the finding of guilt and any sentence passed as a consequence (as per the Encyclopaedic Australian Legal Dictionary).

   In considering whether grounds for cancellation exists, I have also considered Part 1 (5)(a) of the NSW Criminal Records Act 1991, which states:

   5 Findings and orders treated as convictions for the purposes of this Act

   The following findings or orders of a court are treated as convictions for the purposes of this Act

   (a) a finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction…

   I further note that the Commonwealth Crimes Act 1914 states that a person shall be taken to have been convicted of an offence if “the person has been charged with, and found guilty of, the offence but discharged without conviction”.

2. The applicant was required to respond to the NOICC within 7 days of receiving the letter.  

3. The Department received an emailed response via the applicant’s representation on 3 December 2021. The response comprised a written submission to the NOICC prepared by the applicant’s then appointed representative, dated 30 November 2021. The Tribunal notes the submission acknowledges the applicant was given a conditional release order without a conviction for two years.

4. Also attached was a psychological report prepared by Jon Dormand, Registered Psychologist at New Vision Psychology, dated 7 September 2021. The Tribunal notes the applicant completed a DASS-21 assessment to measure the severity of distress, relative to the population. The results measure depression in the mild range; anxiety in the severe range; and stress in the moderate range.  As mentioned in the report the results do not by themselves complete a diagnosis.

5. On 25 January 2022, the Department proceeded to cancel the visa on the basis that the grounds for cancellation had been met and because the delegate was satisfied the grounds for cancelling the visa outweigh the reasons not to cancel the visa.

6. The applicant applied for review of the decision to cancel the visa on 27 January 2022. Attached to the application for review was a copy of the decision record.

7. The Tribunal notes that the decision record indicated that the victims were subject to an overall loss of over 39,200 Australian dollars.  The money was part of the victims’ superannuation for their retirement and the incident significantly impacted their financial security.

8. On behalf of the applicant, the applicant’s representative submitted a number of documents to the Tribunal on 22 and 26 April 2022:

   ·A National Police Certificate dated 21 February 2022, indicating the applicant’s abovementioned offence and sentence.

   ·A Police Character Certificate issued on 22 April 2022, indicating the applicant has not had a criminal record during his residency in Pakistan since birth.

   ·The applicant’s conditional release order issued by a Local Court of NSW indicating that the applicant had been ‘found guilty, but without proceeding to conviction are directed to enter into a Condition Release Order for 2 years pursuant to Section 9(1)(B) of the Crimes (Sentencing Procedure) Act 1999 to commence on 12 November 2021’.

   ·A statutory declaration dated 20 April 2022 from Usama Mansha, a friend of the applicant since childhood, indicating the applicant is an active member of the Pakistani community in the State of Victoria, that he is kind-hearted and generous and that he had never found him to do anything which is illegal. It further stated the applicant made a mistake due to his mental health condition.

   ·A second statutory declaration dated 20 April 2022, from Muhammad Jibran Shabbbir Warraich claimed the applicant to be a good friend of his since childhood. It states the applicant is a kind, humble and generous member of the community and that he made a mistake due to his mental health conditions. 

   ·A further psychological report dated 20 April 2021. The results of the applicant’s DASS-21 results indicated the applicant’s depression and anxiety to be extremely severe and the stress the applicant experiences is in the severe range.

   ·Confirmation of Enrolment Certificates indicating the applicant enrolled in a Certificate III at Australian Harbour International College on 4 June 2021.

   ·Confirmation of Enrolment Certificates indicating the applicant enrolled in a Bachelor of Business at Canterbury Institute of Management on 9 September 2021. 

   ·Confirmation of Enrolment Certificates indicating the applicant enrolled in a Diploma of Business at Trinity Institute on 10 June 2020.

   ·A letter from Trinity Institute indicating the applicant was enrolled in a diploma of business from 13 July 2020 through to 16 April 2021. (It does not indicate completion of the diploma.)

   ·Screenshots of messages to the Local Court and an application to pay the victim compensation as much as 1850 Australian dollars per month over a 12-month period.

9. A written submission prepared by the applicant’s representative was also submitted on 22 April 2022.

10. During the hearing, the Tribunal discussed a Fact Sheet prepared by the New South Wales (NSW) Police that was attached to the Departmental file. (No non-disclosures certificate was issued in relation to this matter.) The document outlined that the applicant was arrested on 6 June 2021 as a co-accused along with Mr Umair Mustafa. The victims, a couple, are described as aged in their late 70s and early 80s and as highly vulnerable to cyber-criminals.

11. The Fact Sheet goes on to state the co-accused were arrested for a cyber-enabled fraud known as Business Email Compromise (BEC). BEC is a method of fraud in which a cyber-criminal impersonates a business or representative to trick an employee, customer or vendor into transferring money or sensitive information to the scammer. One of the victims in July 2020 received an email from an account purporting to be PayPal’s fraud team. The email suggested attempts had been made to purchase an Apple iPhone costing over 2300 Australian dollars using the victims’ joint PayPal account. Trusting the email to be genuine, the victims called the provider contact number and provided the fraudulent customer services person to provide banking details to refund 220 Australian dollars. One of the victims identified that 22,000 Australia dollars were deposited, told the fraudulent customer services person and explained it was in error. To rectify the error, the fraudulent customer services person required the victim to attend a branch of St George Bank to transfer the money to Umair Mustafa. The transaction was successfully completed; however, the victim was advised the transaction failed and the transaction was to be repeated by transfer of 21,800 Australian dollars to a bank account in the applicant’s name.  A third transaction occurred which triggered a suspicious transaction investigation by the bank and found BEC activities in the name of the applicant and others. The applicant withdrew the cash in separate transactions on 13 July 2020 and 14 July 2020.

12. On 6 June 2021, the applicant was interviewed by the NSW police. The applicant denied knowing the cash withdrawals were originated from crime and that the money was transferred into his account by his friend, after a car was sold and who had reassured him the transaction was lawful. Later he changed his testimony to explain that he handed his cousin the money to send to ‘Farez’ who had threatened him. The applicant was then placed into custody after his arrest. The NSW police also discovered the applicant had existing ANZ Bank accounts.

13. In the submissions to the Tribunal and in oral evidence received during the scheduled hearing, the applicant, with the assistance of the representative, has argued that the applicant pleaded not guilty and had not knowingly or deliberately received defrauded or stolen proceeds from a crime. The applicant has variously claimed he withdrew the money to forward to a person in Pakistan who had deposited the money after the sale of a vehicle, and that the applicant had transferred the money to a different person in Pakistan, who had been extorting him and threatening to harm him or his brother. (The Tribunal notes the applicant was unable to explain the reason the applicant opened a bank account at a branch of St George Bank while he had existing ANZ Bank accounts.)

14. They have also argued that while the applicant was found by a court in NSW to have recklessly, that is knowingly, dealt with the proceeds of crime worth more than 5000 dollars, the result stated ‘non-conviction proved’. The wording of the court outcome, they have argued, explicitly identifies the offending as not a conviction for the purposes section 116(1)(g) and reg 2.43(1)(oa).

15. It is impermissible in a decision for the Tribunal to impugn the conviction (or ‘non-conviction’) or to look behind a finding of guilt by a magistrate or judge within Australia’s legal system which the decision was based.[1]  The Tribunal accepts the guilty finding that the applicant had committed the offence for which the Department found to be the grounds for this cancelled visa.

    [1] MIMA v SRT (1999) 91 FCR 234 at 25. The judgment concerned the deportation power in s 200, but the reasoning applies equally to those character grounds which are enlivened by a conviction. The relevant authorities are reviewed in HZCP v MIBP [2018] FCA 1803 at [41]–[95].

16. The issue before the Tribunal is whether the applicant, as a former student visa 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).

17. It is accurate that the court result from NSW states ‘non-conviction’ for the offending.  However, as the Crimes Record Act 1999 in NSW insists that findings or orders of a court from that jurisdiction are to be treated as convictions, where the findings include proven offences or where persons are found guilty of offences, without proceeding to a conviction, the Tribunal finds the relevant ‘non-conviction’ in this matter amounts to a conviction.

18. Therefore, the Tribunal is satisfied that the Liverpool Local Court in NSW found the visa holder guilty of the offence and issued the visa holder with a conditional release order without conviction for a 24-month period. As the Tribunal is mindful of the meaning of ‘conviction’ under the relevant State legislation in the State where the finding was made, it is satisfied that the applicant was “convicted” of the offence for the purposes of reg 2.43(1)(oa) of the Regulations.

19. For these 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

20. 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

21. The applicant was granted a student visa on 2 July 2019 on the basis that he was going to commence a university foundational course on 28 June 2019 in order to complete a Bachelor of Health Sciences by 31 January 2023.  The applicant arrived in Australia in late July after the coursework had begun, so cancelled the enrolment to enrol in the same coursework at the same institution to begin in October and to end in July 2023.

22. However, the applicant’s later enrolment was cancelled due to unsatisfactory attendance on 24 February 2020. After a four-month period with an enrolment, the applicant then enrolled in a Diploma of Business at the Trinity Institute and then he enrolled on 8 July 2021 in a bachelor’s degree in business at the Canterbury Institute, as well as a Certificate IV in Business at the Harbour International College – which the applicant completed.    

23. In the applicant’s response in the NOICC, the applicant has attempted to argue that his lack of academic progress can be partially accounted for a deterioration of his family’s financial position arising from the COVID-19 pandemic. However, the Tribunal notes the applicant’s enrolment in 2020 was cancelled due to unsatisfactory academic progress, and not due to unpaid tuition fees. Accordingly, the Tribunal does not accept this explanation.

24. The applicant accounted for this due to a combination of homesickness, mental health problems, the demanding nature of the coursework. However, as discussed under the heading ‘degree of hardship that may be caused’ the Tribunal has found the supportive evidence about the applicant’s emotional and psychological state as weak and unconvincing to account for his lack of academic progress. Neither does the Tribunal accept the applicant struggled with a foundational coursework at UWS, when he was able to complete a Certificate IV in Business.

25. Given the applicant’s limited academic progress, the Tribunal assesses there is a lack of evidence to suggest the applicant is a conscientious and driven student who is determined to remain in Australia for the purposes of full-time studies which is the purpose of the visa under review being granted to him. Accordingly, the Tribunal places considerable weight in favour of this visa being restored.

    the extent of compliance with visa conditions

26. The delegate’s decision details, the PRISMS information indicates the applicant had not been enrolled in any course of study between 24 February 2020 and 8 July 2021 – a period of about 18 months. The delegate placed some emphasis on this in favour of the visa cancellation as it indicated the applicant had breached visa condition 8202(2)(b), which requires the student visa holder is to maintain enrolment in a registered course of study which provides a qualification from the Australian Qualification Framework.

27. At the hearing, this breach was discussed as it was outlined in the decision record. The applicant qualified the breach pointing out that he had been enrolled in a Diploma of Business at Trinity Institute for the period between 13 July and 16 April 2021. It was claimed in the legal submission the applicant believed this enrolment maintained his compliance with condition 8202, as advised by an education consultant.

28. The applicant then enrolled, on 8 July 2021, in a Certificate IV in Business at the Australian Harbour International College for the dates 12 July 2021 and 9 January 2022 (which the applicant completed), and a Bachelor of Business at the Canterbury Institute to commence on 31 January 2022 and end on 15 July 2023.

1. The Tribunal asked the applicant the reasons he did not seek deferment which allowed the applicant to remain enrolled in coursework while he was suffering homesickness or any other challenges in advancing his studies. The applicant responded that his enrolment history had been determined by the advice of educational consultants. The Tribunal does not accept the applicant was overly trusting or reliant on this advice when it was open to him to approach any education provider for assistance, including deferment.

2. Overall, the evidence is that the applicant was not enrolled in a bachelor’s degree between 24 February 2020 and 8 July 2021, and during that gap the applicant had been enrolled in vocational coursework. There is sufficient evidence for the Tribunal to reasonably assess that the applicant was not compliant with condition 8202.  In the context of the lack of evidence of any other non-compliance, the Tribunal accordingly places some weight on the applicant’s history of non-compliance with visa conditions in favour of the visa under review remaining cancelled.

   degree of hardship that may be caused (financial, psychological, emotional or other hardship)

3. During the hearing, the applicant claimed that financial hardship may be caused by this visa being cancelled, including his inability to complete an Australian qualification. The Tribunal asked if he was able to enrol in a similar course in Pakistan’s tertiary education system, to which the applicant responded it was his parents’ dream for him to complete studies overseas. The Tribunal enquired if those studies could be completed in Canada or the United Kingdom, to which the applicant claimed that Australia was better. Asked if there were any other ways the applicant would be financially worse off, the applicant responded that it was not a big difference. The Tribunal also notes the applicant, in response to another question, described the impact on the visa’s cancellation on him as likely being ‘ruinous’.

4. The Tribunal does not accept the applicant’s assertion that Australia’s university education system was more superior to that of other comparable countries, and it does not accept the applicant will be unable to complete similar coursework in which he had been enrolled in Australia, if he returned to Pakistan. The Tribunal finds the applicant will be vocationally or educationally disadvantaged should this visa under review remain cancelled, but the adverse impact is assessed to be negligible.

5. Given the applicant will be able to resume coursework outside of Australia and he has not emphasised the financial hardship on him as being significant, the Tribunal places only a little weight on the financial and educational hardship in favour of the visa not being cancelled.

6. The applicant also impressed on the Tribunal that there was a strong degree of emotional hardship arising from disappointing his parents in not being able to resume studies to obtain an Australian qualification.

7. The legal submission outlines to the Tribunal that the applicant’s mental health deteriorated because he was residing away from his family for the first time and because of the cultural differences, which led to feelings of loneliness, anxiety and depression. This in turn affected his studies. These mental health symptoms were then exacerbated by the COVID-19 pandemic as he worried about family members becoming infected by the virus while in Pakistan where the health system was inadequate.

8. The legal submission to the Tribunal has also emphasised that the applicant will face mental health challenges, should this visa remain cancelled. The representative has argued that the applicant is likely to rely on accessing Pakistan’s mental health services; however, the country’s health system is ineffective, of poor quality and lacking in accessibility and trained staff. This is in contrast to Australia’s health system which is described as one of the finest in the world. Furthermore, the applicant was not able to return to Pakistan due to emergency restrictions on international travel from Australia.

9. The applicant has submitted two DASS-21 assessments. The first is dated 7 September 2021 indicating mid-range mental health symptoms, with the second, dated 20 April 2020, indicating a notable deterioration in the mental health symptoms.

10. A further psychological report indicating the applicant’s Depression Anxiety Stress Scale 21 (DASS-21) shows depression and anxiety to be extremely severe and the stress the applicant experiences is in the severe range. Both reports state the results do not by themselves amount to a diagnosis. During the hearing, the Tribunal pointed out that these results represented very limited engagement with a relevant mental health professional. The applicant claimed that COVID-19 restrictions prevented him from doing so. The Tribunal pointed out that online support is widely available in Australia.

11. During the hearing, the Tribunal enquired into how he was treating his mental health symptoms which included homesickness, and a lack of concentration. The applicant responded he participates in organised sport (cricket) and exercises. The Tribunal pressed him as to whether the applicant has been attending regular counselling or has been taking medication to treat his mental health symptoms. The applicant evasively answered he planned to undertake regular counselling and get medication into the near future. The Tribunal further enquired into the reasons the applicant had not undertaken a complete diagnosis. The applicant did not provide a response.

12. In the absence of any fulsome assessment and given the applicant has not meaningfully engaged counselling and treatments for claimed severe mental health symptoms, the Tribunal does not accept the applicant has any significant or severe mental health symptoms or that they had explained his poor academic engagement in the past. The Tribunal notes the applicant may disappoint his parents; however, he has also demonstrated that his parents are helping to cover the compensation owed to the above-mentioned victims as directed by a court and to do so within 12 months. This strongly indicates his parents continue to support and care for their son and that any disappointment in failing to achieve his study goals in Australia will not be severe or long lasting.

13. Nonetheless the Tribunal accepts the applicant does have genuine feelings of loneliness, homesickness and a lack of concentration. It accepts he has and will experience anxious and depressive feelings, should his visa remain cancelled.  Accordingly, the Tribunal assesses that the applicant will face a notable degree of psychological and emotional distress should this visa remain cancelled, and it correspondingly places notable weight on these emotional and psychological hardships in favour of the visa not being cancelled.

    circumstances in which ground of cancellation arose

14. The visa holder was convicted of the offence outlined in paragraph 13, enlivening the grounds for cancellation.

15. The visa holder stated that he never intended to receive proceeds of a crime. The evidence before the Tribunal is that he has provided an explanation that he naively trusted a stranger who involved him in the offence for which he was charged. He has also argued that a person later threatened him and his brother.  

16. The Tribunal acknowledges the applicant did not plead guilty to the offence. He claimed not to have known the victims and insisted he was a kind-hearted person. There are also reference or character letters from friends of the applicant who vouch for his good character and mentioned the offending had been a mistake arising from his mental health condition.

17. As mentioned above, a decision maker in merits review is not in a position to look behind a conviction decision of a magistrate whether the applicant was innocent. The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence or matters relating to the trial itself for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the offence.

18. The applicant has not provided any supporting documents spurring the commission of the offence. This paucity of evidence included any sentencing remarks from the relevant court to support there were extenuating circumstances. As discussed above, there is no strong evidence the applicant had suffered any severe or deliberating psychological illness or episode to explain the offending which his friends have described as a mistake.

19. Due to the lack of corroborative evidence that there were any extenuating circumstances as the applicant’s written and oral claims have advanced, the Tribunal finds there is insufficient evidence to explain the applicant’s behaviour leading to the offending. The Tribunal is not satisfied there were extenuating or compelling circumstances that were beyond the applicant’s control to explain the applicant’s offending. It accordingly places significant weight on the lack of extenuating circumstances leading to the grounds for cancellation in favour of the visa not being reinstated.

    past and present behaviour of the visa holder towards the Department

20. There is no adverse information before the Tribunal regarding the applicant’s behaviour towards the Department or itself. This consideration is given little weight in favour of not having the visa remain cancelled.

    whether there would be consequential cancellations under s 140

21. The applicant did not travel to Australia with any dependants. Nor were there any dependents attached to the grant of his student visa. Therefore, no consequential cancellations under s 140 of the Act are applicable to the applicant’s circumstances. Accordingly, the Tribunal places no weight on this consideration, either in favour of or against a decision to cancel the visa, as it is not relevant in this case.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

22. Should this visa remain cancelled, the applicant would become an unlawful non-citizen and could be liable for detention under s189 and removal under s198 of the Act if he does not voluntarily depart.  In addition, the cancellation will also place a limitation under section 48 of the Act, which means that the applicant will have limited options to apply for further visas in Australia. If the visa remains cancelled under these grounds the applicant may also be affected by public interest criterion 4013, limiting the grant of a further temporary visa for a specified period.

23. During the scheduled hearing when discussing this topic, the applicant repeated the general claims that the ongoing cancellation of the visa would have an adverse, even ruinous, impact on him and the expectations his parents had for him to obtain an Australian degree or qualification would not be met.

24. The Tribunal provides this consideration some weight against cancelling the visa under review.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. During the scheduled hearing, the applicant claimed that no one wanted to harm him, should he return to Pakistan in the near future.  The Tribunal notes that the applicant does not have any Australian citizen children or any children at all. He has not provided any reasons he will face a real chance of serious harm for a Refugees Convention or nexus reason or that there are substantial reasons to believe he faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to his country of origin. The Tribunal also notes the applicant is not eligible for a protection visa. Given this, the Tribunal places no weight on the cancellation leading to a breach on Australia’s international obligations, either in favour or against the visa being reinstated.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. This is not relevant in this matter.

    any other relevant matters

27. The Tribunal has considered the seriousness of the offending which involved receiving stolen monies. The Tribunal notes the financial penalties on him are sizeable with him being required to compensate the victims for the amount they were defrauded: around 22,000 Australian dollars. The Tribunal accepts the applicant has undertaken to repay the amount by instalments over a 12-month period. The penalty itself indicates the offending to be serious enough to impose a considerable financial penalty and conditional release order for two years but not one of sufficient gravity involving imprisonment or an immediate ‘conviction’ result. This would indicate the offending to be neither heinous nor trivial.

28. The applicant was found guilty of the offence but has maintained he was not guilty of the offending. As discussed above, there are no credible extenuating circumstances to explain the offending and it is impermissible of the Tribunal to impugn upon the court’s decision which led to the grounds for cancellation. 

29. The Tribunal finds the conviction relates to a relatively serious transgression against a vulnerable elderly couple whereby the applicant unlawfully and recklessly received a substantial amount of money. The offending is a distasteful and repugnant commission.

30. Regardless of the applicant and those who provided character letters attesting to his kind-heartedness and otherwise good character, the Tribunal accordingly places significant weight on the relative seriousness of the offending in favour of the applicant’s visa remaining cancelled. 

    Conclusion

31. In this matter, the Tribunal is satisfied that the grounds for cancellation under s 116(1)(g) exist.

32. The applicant’s lack of overall academic progress and non-compliance with condition 8202 have demonstrated to the Tribunal the applicant is not a genuine student for the purposes of full-time studies for a bachelor’s degree. With the particular emphasis on the seriousness of the offending which were the grounds of the cancellation, the lack of extenuating circumstances leading the grounds, and the overall lack of any compelling or urgent need to have this visa reinstated, it has placed more weight on those factors in favour of the visa being cancelled over those countervailing factors against the visa being cancelled.   

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

    DECISION

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

    Brendan Darcy
    Member