Alrehaili (Migration)

[2022] AATA 852

Alrehaili (Migration) [2022] AATA 852 (11 March 2022)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naif Abdulhafeez A Alrehaili

CASE NUMBER:  2108615

HOME AFFAIRS REFERENCE(S):          BCC2021/917381

MEMBER:David McCulloch

DATE:11 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 11 March 2022 at 10:13am

CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – criminal convictions, correction orders and rehabilitation programs – discretion to cancel visa – study history and circumstances of offending – legal consequences and hardship if visa cancelled – most submissions not maintained at hearing – no evidence provided to support submission that correction orders require applicant to remain in NSW – not currently studying – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 375A
Migration Regulations 1994 (Cth), r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 June 2021 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 Saudi Arabia born on [Date]. The visa that was cancelled was granted on 27 April 2020, expiring on 7 December 2022.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 8 June 2021. The applicant provided a response to the NOICC on 23 June 2021.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. 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. A search conducted on systems of  the Department of Home Affairs indicates that the applicant is currently an unlawful non-citizen.

6. The applicant appeared before the Tribunal on 18 February 2022 at 9.30am to give evidence and present arguments.

7. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, 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 remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. 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

9. 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)(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?

10. 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(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)).

11. The delegate’s decision record and documents on the Department file indicates that, according to a report provided by the NSW Police, the applicant has been convicted of the following criminal offences on 29 April 2021 at the Central Local Court, NSW: two counts of dealing with property proceeds of crime <$100,000 – T2 with an 18 month Community Correction Order and a 9 month Intensive Correction Order commencing concurrently on 29 April 2021, among other penalties/punishments; two counts of supplying a prohibited drug <= small quantity – T2 with an 18 month Community Correction Order and a 9 month Intensive Correction Order commencing concurrently on 29 April 2021, among other penalties/punishments; one count of supplying a prohibited drug > indictable and commercial quantity – T1 with a 9 month Intensive Correction Order commencing on 29 April 2021 among other penalties/punishments; one count of possessing a prohibited drug with an 18 month Community Correction Order, among other penalties/punishments.

12. Previously, the applicant was convicted of similar offences at the Downing Centre Local Court as follows: one count of supplying a prohibited drug > indictable and commercial quantity – T1 with an 18 month Community Correction Order commencing on 19 February 2021, among other penalties/punishments; one count of supplying a prohibited drug <= small quantity – T2 with an 18 month Community Correction Order commencing on 19 February 2021, among other penalties/punishments; one count of dealing with property proceeds of crime < $100,000 – T2 with an 18 month Community Correction Order commencing on 19 February 2021, among other penalties/punishments.

13. In the hearing the applicant agreed that he had been convicted of all of these offences.

14. 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

15. 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’. 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.

16. The NSW Police Facts Sheet outlines the allegations against the applicant relating to the charges leading to the 29 April 2021 convictions.

17. On 31 July 2020, the applicant was in possession of 47.2 grams of cocaine (including packaging) which resulted in him being convicted and receiving an 18 month Community Correction Order (at Downing Centre Local Court).

18. On 9 April 2021, the applicant was observed loitering in Marrickville. He later had an interaction with a male person and appeared to exchange an unknown item. Police approached the applicant and asked him whether he had just been involved in a drug transaction. The applicant denied this.

19. The applicant indicated that there were no drugs on him nor in his vehicle. Concurrently, the other male person was stopped by police nearby. When asked if he had drugs in his possession, his response was ‘there potentially might be’. A bag containing cocaine in his pocket was seized. It weighed 0.67 grams. His phone was also examined and a messaging log was located, which confirmed that the male person had just purchased the cocaine from the applicant.

20. With this information, the applicant was arrested and searched. Police found $300 cash in his pocket. Police also found two clear resealable bags containing cocaine in his vehicle and a satchel bag containing $2,980 in cash, among other things. The drugs weighed 1.34 grams (0.67 grams each). The applicant was charged accordingly.

21. The applicant submitted to the Department a statutory declaration dated 21 June 2021 which read as follows (not corrected for spelling or grammar):

    I arrived in Australia on December 2, 2014, as the holder of a student visa. The visa was valid until November 16 2015.

    I began studying English at UTS Inseach at Haymarket NSW on January 15 2015. I completed that course in October 2015.

    I have done some further English studies at George Brown College. Then I enrolled in a foundation, diploma of accounting, commerce and business administration, and a Bachelor of commerce packaged courses at Macquarie University. I applied and was granted a further student based on that study plan. The visa had an expiry date of March 15 2020.

    On July 18 2016, I started the foundation course. I stopped in February 2017.

    On February 27 2017, I changed provider and course to study a diploma of leadership and management at George Brown College. I completed the diploma on February 26, 2018.

    I then joined the University of Western Sydney to study Bachelor of Information Systems on July 2 2018. I studied seven subjects over six semesters, but I was able to pass only one. I ceased to study on June 15 2020. I note that I chose that course to obtain financial support from my home Saudi Arabia government.

    The pressure was mounting, and I became very depressed and starting using illicit drugs. In February 2021, I was convicted of possessing and supplying prohibited drugs and dealing with property proceeds of crime.

    I was giving 18 months community correction order starting on April 29 2021, and concluding on January 28 2022. I was ordered to attend nine months abstention rehabilitation and treatment program.

    I am attending to all my obligations to the court. I am in frequent contact with my parole office over the telephone. I am attending treatment with Dr Muhamad Ziedni, a Clinical Psychologist, and I am supervised by my general practitioner Dr Maria Bastas.

    In July 2021, I will start the Bachelor of Business course at the Wentworth Institute in Sydney. The course will finish on November 10 2023. It is a discipline that I enjoy and will assist me with obtaining employment in my home country.

    My sister Saja Abdulhafez A Alrehaili is providing financial support for my study. Thus, I am at liberty to study what I enjoy and not restricted to what my home government sponsorship programs support.

    If my visa is cancelled and I am forced to return to my home country Saudi Arabia. I will be prosecuted for the crime of drug supply. The punishment for this crime is death by execution.

    If my visa is cancelled and I forced to return to my home country. I will be in breach of the court orders for community corrections and treatment.

    I ask that you do not cancel my visa to continue my obligations to the court and receive the required abstention rehabilitation treatment I have already started. And to complete study in a discipline that I enjoy and is beneficial to me and my future.

22. The applicant also provided the following documents to the Department:

    ·An article from refworld entitled ‘Saudi Arabia: Executions for Drug Crimes’, published by Human Rights Watch on 25 April 2018.

    ·A medical certificate by Dr Maria Bastas of Marrickville Metro Medical Centre dated 13 June 2021 which states that the applicant was undergoing psychological treatment which was ongoing and not yet completed, therefore required his presence in Australia.

    ·Report from the applicant’s psychologist, Muhamad Ziedni, dated 19 February 2021 who has been providing psychological support for the applicant since July 2015. The report refers to the applicant facing adjustment difficulties in his early period of study in Australia. The applicant presented with a history of adjustment disorder with mixed anxiety and depression, and an eating disorder which were causally related to his substance abuse and offending behaviours. The report indicates the depression and anxiety suffered by the applicant. The report refers to ongoing treatment for the applicant and that he engaged in a substance abuse program to address his risk for relapse. The applicant’s long term prognosis can be described as likely to be improved with support.

    ·Letter from Muhamad Ziedni, dated 16 June 2021, which states that the applicant was showing progression in treatment and was required to complete all cognitive behavioural treatment components as directed by the court. The letter indicates support for the applicant to be able to remain in Australia to undertake continuing psychological treatment.

    ·A character reference from the applicant’s friend, Khaled Riyadh dated 20 June 2021, which states that the applicant experienced insomnia, home sickness and was under pressure to study information technology to obtain benefits from his ‘sponsor’ and to fulfill his father’s dream. The author noted that the applicant was struggling and the author provided support emotionally and financially. He also noted that the applicant had shown major improvements with his sleeping and eating habits as he attends psychological treatment.

    ·Bank statement of Saja Abdulhafeez Ayed Alrehaili from Alinma Bank from 1 May 2021 to 20 June 2021.

    ·A character reference from the applicant’s sister, Saja Alrehaili dated 20 June 2021, which states that the author was supporting the applicant financially and morally. The author was assured that the applicant was benefitting from his treatment and a degree in business would help the applicant in obtaining employment in Saudi Arabia.

    ·A psychological report by Rony Malouf dated 19 February 2021. The report identified the applicant’s drug use as the primary risk factor for reoffending and the applicant’s long-term prognosis is described as likely to be improved due to positive support and guidance from his close friends.

    • An Overseas Student Confirmation of Enrolment (CoE) for a Bachelor of Business at Wentworth Institute.

    ·Submissions dated 23 June 2021 in response to the NOICC provided follows:

    oThe applicant had a compelling need to stay in Australia to continue his studies and to complete his obligations to the court in relation to his criminal convictions;

    oThe applicant had complied with all his previous visa conditions apart from the current issue which has led to his visa cancellation;

    oThe applicant would suffer psychological and emotional hardship if his visa was cancelled, having to return to his home country without fulfilling his planned study and disappointing his family;

    oThe reason for the offences were severe medical issues which had led him to drug use. The applicant submitted that his drug use was outside his control;

    oThe applicant had adjustment disorder problems, anxiety, depression, learning difficulties and an eating disorder which were the causes of his involvement with drugs;

    oThe applicant was undergoing treatment and progressing well;

    oThe applicant’s dealings with the Department were always in good faith and in a cooperative manner;

    oCancelling the applicant’s visa would trigger the operation of s 48 of the Act and he would face detention and deportation;

    oThe applicant feared returning to Saudi Arabia as he would face prosecution for his drug-related offences in Australia, the punishment of which was the death penalty;

    oThe applicant was concerned that he would be retried and convicted for the same offences in Saudi Arabia as its criminal justice system was unfair. The applicant submitted that he would ultimately face a death sentence;

    oCancelling the applicant’s visa would be detrimental to his treatment and progress as the causes of his offending were on track for elimination;

    oThe applicant was receiving support from his sister, Saja, and friend, Khaled;

    oThe financial pressure that caused his drug use has been eliminated.

23. Initially in the hearing, the applicant indicated that extenuating circumstances for the events leading to the convictions were a shortage of money.  The Tribunal asked the applicant if there were any other extenuating factors, and he said that there were not. When the Tribunal put to the applicant that this was not consistent with written claims that his mental health issues caused the offences, the applicant said that he maintains what the written claims say. However, when pressed further the applicant was not able to articulate extenuating circumstances in this respect and said he was relying on written claims.

24. The Tribunal is not satisfied that a shortage of money constitutes an extenuating circumstance beyond the applicant’s control that justifies the circumstances leading to the convictions for drug dealing. The Tribunal is not satisfied given the applicant’s evidence and hearing that mental health issues were present constituting extenuating circumstances beyond the applicant’s control that exculpate him from responsibility for the convictions.

25. The fact of the Tribunal not accepting that there are extenuating circumstances beyond his control that exculpate him from responsibility for the convictions is a significant discretionary factor adverse to the applicant in the exercise of the Tribunal’s discretion.

26. In the hearing, the applicant indicated that he stopped his studies in the 2021 Bachelor of Business after one term because of lack of funds to continue. The applicant indicated that he intends to return to Saudi Arabia but cannot do so until after his Community Correction Order ends in August 2022 because his parole officer has told him that he cannot leave NSW.

27. In the hearing, the applicant did not maintain any other hardships in terms of the visa being cancelled. The applicant did not maintain hardship to an inability to continue with studies. As indicated, the applicant ended his 2021 studies and is not currently studying. The applicant did not maintain that he would receive inferior psychological treatment in Saudi Arabia. The applicant did not maintain that he could be charged and convicted in Saudi Arabia of the drug offences that he has been convicted of in Australia. The applicant indicated that his lawyer had told him that Australian authorities do not share conviction information with other countries.

28. After the hearing, the Tribunal asked the applicant to provide a copy of the Community Correction Orders or other relevant information indicating that the applicant is not legally able to leave NSW until August 2022. The applicant did not provide a response in the timeframe requested or thereafter.

1. Given no evidence having been provided, the Tribunal is not satisfied that there are criminal justice restrictions on him leaving NSW. That is therefore not be a discretionary factor in favour of not cancelling the visa.

2. The Tribunal accepts that a hardship to the applicant if the visa remains cancelled is that he could be an unlawful non-citizen and subject to immigration detention. However, the Tribunal considers that the applicant would be eligible for a Bridging visa to make his status lawful as he makes arrangements to leave the country.

3. The Tribunal accepts a hardship to the applicant if the visa remains cancelled there is an exclusion period in terms of applying for visas onshore.

4. The applicant in the hearing indicated that no children in Australia’s interests are affected by the cancellation of the visa.

5. The applicant indicated an intention to return to Saudi Arabia and did not maintain that he would be convicted again in Saudi Arabia for the drug offences in Australia and be subject to the death penalty. The Tribunal does not consider Australia’s non-refoulment obligations are enlivened in this matter as a relevant discretionary factor.

6. On the Departmental file is a s 375A non-disclosure certificate applying to two documents on the basis that they contain information that was provided ‘in confidence’ as the provider of the information has not consented to the disclosure of the information to the applicant. On inspection of the relevant documents, there are internal emails between officers of the Department of Home Affairs and do not appear to contain confidential information. They are internal working documents relevant to the process of cancellation. On the basis that they do not contain confidential information and are internal working documents there is no basis for claiming public interest immunity in relation to them. The Tribunal does not consider that the certificate is valid. The contents of the document are not relevant to the Tribunal in considering either whether the ground of cancellation is made out or in relation to the decision as to whether the visa ought to be cancelled.

7. The Tribunal balances discretionary factors. Significantly adverse to the applicant is the fact that the Tribunal does not consider that there are extenuating circumstances beyond his control in relation to the events leading to the convictions. The Tribunal is not satisfied that there is hardship to the applicant if the visa remains cancelled in terms of not being able to fulfil criminal justice requirements in NSW or an order that he not leave the state. This is the only hardship seriously maintained by the applicant in the hearing. The Tribunal considers the matters adverse to the applicant significantly outweigh any hardship he would face or other discretionary issues in his favour.

8. The Tribunal determines to exercise its discretion to cancel the visa.

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

   DECISION

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

    David McCulloch
    Member