Alshakhel (Migration)

[2022] AATA 613

Alshakhel (Migration) [2022] AATA 613 (4 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Komil Mohammad S Alshakhel

CASE NUMBER:  2017578

HOME AFFAIRS REFERENCE(S):          BCC2018/5429714

MEMBER:Brendan Darcy

DATE:4 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 4 January 2022 at 5:05pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – criminal offence – applicant has genuine remorse about the incident – no record of criminal offending in home country – applicant is a genuine temporary entrant –  applicant’s spouse and child are Australian citizens – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 376

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 1 December 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) are found in reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (the Regulations). 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 18 November 2021 via an internet-enabled audio-visual platform to give evidence and present arguments. The Tribunal did not receive oral evidence from any third parties.  

4. The applicant was represented in relation to the review by his legal practitioner from Carina Ford Immigration Lawyers, although he was not represented during the scheduled hearing or in a post hearing submission.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   Section 116(1)(g) – prescribed ground

7. 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 Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant and states:

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

8. The applicant, a national of the Kingdom of Saudi Arabia (Saudi Arabia or KSA), was born on 29 September 1985.

9. The applicant first arrived in Australia at the end of 2013 as a holder of a Class TU student visa.

10. The applicant was granted a further Class TU Subclass 500 visa on 13 March 2018 which was set to expire on 15 March 2021. The applicant had been enrolled in a Bachelor of Engineering (Honours) at Swinburne University of Technology (Swinburne).

11. A Notice of Intention to Consider Cancellation (NOICC) was initially sent to the visa holder on 8 February 2019 under s 116(1)(e)(ii) of the Act. A second NOICC was sent on 6 November 2019.

12. The visa holder provided responses to the first NOICC on 22 February 2019, 18 June 2019 and 28 October 2019.

13. A submission dated 28 October 2019 argued that three of the original six charges against the applicant were dropped and the three remaining charges involved an aggregate fine of AU$6,000 arising from an offence taking place on 5 May 2018. Attached to the submission was a copy of the Amended Statement of Material Facts, which constituted the final agreed-upon version of events following three charges being dropped.

14. On the specific issue regarding the grounds for cancellation, the applicant indicated to the Department that he agreed the grounds existed on the basis that he was convicted of three offences on 4 September 2019.

15. On 1 December 2020, a delegate acting on behalf of the Minister proceeded to cancel the applicant’s student visa. The decision record indicates the delegate was satisfied the grounds for cancellation under s 116(1)(g) of the Act were met, relying on the prescribed grounds at reg 2.43(1)(oa).

16. On 7 December 2020, the applicant validly applied to have the delegate’s cancellation decision reviewed by the Tribunal. In his application for review, the applicant attached a copy of the notification and decision record of the cancellation decision. 

17. At the scheduled hearing, the applicant did not deny that the ground for cancellation under s 116(1)(g) exists.

18. With no evidence to the contrary, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) on the prescribed grounds at reg 2.43(1)(oa) exists.

19. 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’.

    Non-disclosure certificate

21. On 24 April 2021, the Tribunal received a non-disclosure certificate dated 23 April 2012. It is signed by a relevant Departmental officer and had been issued under s 376.  The certificate was raised with the applicant during the scheduled hearing on 18 November 2021. The Tribunal indicated it would forward him the non-disclosure certificate for comment under Part 5 of the Act’s adverse information provisions.  

22. On 1 December 2021, the Tribunal emailed a letter to the applicant regarding 92 pages of the Departmental file that was subject to a non-disclosure certificate; the pages were attached to the email as well as a copy of the non-disclosure certificate.

23. In providing the information to the applicant, the Tribunal used its discretionary powers under s 376(3) to forward a redacted version of the information. The redactions were to protect the personal particulars and contact details of Departmental officials, members of Victoria Police and others from being identified. The Tribunal specially sought comment on the information provided little or no extenuating circumstances arose that would argue against cancellation of the visa, and that would form the reason or part of the reason for the Tribunal to affirm the decision under review. The applicant had until 15 December 2021 to respond in writing, and to provide any other information he considered relevant to this review.

24. On 15 December 2021, the Tribunal received a written response to its letter and the adverse information. The applicant’s response indicated he should have complained to the police about the person he assaulted and asked the Tribunal to accept his apology.

25. Attached was a statement written in English from the applicant’s spouse. This letter provides a similar account to the one in the Amended Statement of Material Facts, indicating the person the applicant had assailed had been harassing the applicant’s wife. She emphatically stated that the assault was not related to extortion for financial gain.

26. Attached was also a copy of a letter from Swinburne indicating the applicant completed a Bachelor of Engineering with Honours in July 2021 and that he was set to graduate on 20 December 2021.

27. The applicant did not provide any comment on the validity of the non-disclosure certificate.

28. Having considered the particulars of the non-disclosure notice as well as the applicant’s and his spouse’s responses, the Tribunal is satisfied that the non-disclosure certificate had been validly issued.

29. The Tribunal further notes that the information did not disclose any information of which the applicant had not already been aware. The Tribunal did not find any inconsistencies between the applicant’s evidence as to the reasons to have this visa reinstated and the information subject to this non-disclosure certificate to reach any significant adverse credibility findings.  One of two documents worthy of further comment was the unedited version of the Amended Statement of Material Facts set out by Victoria Police. It indicated the applicant’s charges may have been related to theft or financial gain. However, the amended version ‘strikes through’ those accusations, while still being legible, and those related charges (assault with the intent to rob; use threatening words in public place; and robbery) were withdrawn. This indicated to the Tribunal the motivations of the applicant and his spouse against a person were not monetary or pecuniary. The other document worthy of comment was a translated letter to the Australian Embassy in Riyadh indicating the applicant has no criminal record to date.

30. The Tribunal accordingly places no weight on these accusations about extortion, not least because the authorities in Victoria did not pursue them. Overall, the Tribunal places very little significant relevance on the overall information in reaching the decision to assess whether the visa should remain cancelled or not. This information and findings have informed the Tribunal’s following findings about this application for review of whether a visa cancellation should remain in place or not.

    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

31. As the delegate’s decision record indicated, the applicant first arrived in Australia at the end of 2013 as the holder of a student visa. He completed English for Further Studies and Foundation Studies before commencing a Diploma of Engineering. He completed the Diploma in September 2016 and in February 2017 commenced the Bachelor of Engineering (Honours) at Swinburne.

32. The applicant provided information in a post hearing submission that he completed the Bachelor of Engineering with Honours in July 2021.

33. During the hearing, the applicant said he wanted to remain in Australia to complete a Master’s in Engineering. The applicant elaborated that he wished to return to Saudi Arabia to work in his father’s construction and transportation business. The applicant elaborated that he wished to build better and more sustainable homes that are more energy efficient with emerging battery technologies. The applicant said he wanted to return to Saudi Arabia with his Australian citizen wife and child.

34. The applicant’s educational history as a student visa holder and his efforts to progress his studies since this visa under review was cancelled strongly indicated to the Tribunal that the applicant is a conscientious student whose purpose to come to and remain in Australia was study. The applicant provided oral evidence that while his wife was an Australian citizen, he later elaborated that he saw no or little significant financial impact on him by returning to Saudi Arabia because it had been part of his plan all along, even after marriage. Although he was eligible to apply for an onshore partner visa, the applicant had not chosen to do so, because, it was claimed, he was going to return to Saudi Arabia at some stage in the foreseeable future. The Tribunal finds there is insufficient evidence in this application for review, including in his responses to the NOICC, for it to determine that the applicant does not want to remain temporarily in Australia as a student.

35. Overall, the Tribunal places considerable weight on the applicant’s academic progress, his stated reasons to remain in Australia for further studies and his accepted desire to return to Saudi Arabia to find the applicant is a genuine temporary entrant. The Tribunal places considerable weight on these factors as reasons not to have this visa remain cancelled.

    The extent of compliance with visa conditions

36. The decision record states the Department did not find any information relating to any non-compliance with any conditions on his visa and that he maintained engagement with his enrolled studies during the period he held his student visa.  The Tribunal places some weight on this lack of history of non-compliance in favour of this visa being reinstated.

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

37. In the applicant’s response to the NOICC, the applicant elaborated that he feared the  psychological and emotional hardship caused to his family will be significant. In particular, the applicant’s spouse was pregnant, and he feared he would be unable to be by her side during the pregnancy and birth of their child. However, the delegate placed little weight on this as the applicant had been in a position to continue supporting his wife with her health matters in Saudi Arabia when they return there as a family, in the context of the applicant’s stated claim that he and his family intended to settle in Saudi Arabia. 

38. At the time of making this decision, the applicant’s wife has delivered a healthy child. The applicant did not advance any considerable degree of psychological or financial hardship if this visa remains cancelled. He did hold some fears it would be time-consuming to obtain a visa for his wife to live in Saudi Arabia and he feared that if he left without her, the finances would be stretched, and his wife was not in a position to live with her parents. He also feared he would have difficulties in returning to Australia if his visa were cancelled and he was barred from re-entering for as long as three years. Educationally, the applicant admitted he could complete a Master’s degree in Saudi Arabia and that he had made enquiries at King Fahd University. However, he preferred obtaining a further qualification in Australia because he could study on a Saudi-funded scholarship while in Australia and because he was familiar with academic personnel at Swinburne.

39. The applicant will generally experience some financial, educational and emotional hardship should this visa remain cancelled. However, the hardships outlined, both individually or cumulatively, do not amount to any being significant, considerable or even notable in degree. Accordingly, the Tribunal places a small amount of weight on these hardships in favour of the applicant’s visa being reinstated.

    Circumstances in which ground of cancellation arose; 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

40. The Victoria Police Amended Statement of Material Facts, provided to the Department by the applicant on 28 October 2019, indicates the applicant (the accused) and the applicant’s spouse (the co-accused) were known to the victim at the time of the offending. The decision record outlines the events leading to and during the offending.

41. As a result of his actions, the applicant was convicted on 4 September 2019 of the criminal offences: threat to inflict serious injury; wilfully damage property and unlawful assault in the Melbourne Magistrates’ Court and fined an aggregate of AU$6,000 giving rise to a ground for cancellation under s 116(1)(g) of the Act, relying on the prescribed grounds at reg 2.43(1)(oa) of the Regulations.

42. The applicant has provided some explanation for the offending in that it was provoked by a man’s unsolicited advances towards the applicant’s wife; that the advances were potentially threatening; and that they caused consternation among the family of the wife with unsolicited calls. The offending was clearly intentional and premeditated. The applicant is a reasonably well-educated person whose English is proficient. There can be no excuses for attacking the integrity of a person when there were lawful means through complaints and intervention orders accessible through Australia’s system of law and order.

43. Taking this evidence into account, the Tribunal found that there were no mitigating or extenuating circumstances beyond the applicant’s control while led to the ground for cancellation arising. Accordingly, the Tribunal places notable weight on that lack of extenuating circumstances in favour of the visa remaining cancelled.

    Past and present behaviour of the visa holder towards the Department

44. The Tribunal is unable to identify any adverse information before it relating to the visa holder’s past and present behaviour towards the Department, or even the Tribunal.  Accordingly, the Tribunal gives this consideration little weight towards the visa being reinstated.

    Whether there would be consequential cancellations under s 140

45. Both the applicant’s spouse and child are Australian citizens. He has no non-citizens in Australia who are dependants. Accordingly, there are no persons whose visa would, or may, be cancelled consequentially under s 140 of the Act as a result of a decision to cancel this student visa under review. Therefore, the Tribunal does not place any weight on this consideration for or against a decision to cancel the visa.

    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

46. If the visa is cancelled, the applicant will become an unlawful non-citizen and may be detained under s 189 and removed from Australia under s 198 of the Act if he does not voluntarily depart Australia, as he would no longer hold a valid visa. However, if the visa remains cancelled, the visa holder may be eligible to apply for a Bridging E (Subclass 050) visa to enable him to make arrangements to depart Australia. Further, the applicant may make an application for merits review of the cancellation decision with the Tribunal, though an application must be made within the prescribed timeframe. If the visa holder makes an application for merits review he may also be eligible to apply for a Bridging E (Subclass 050) visa to enable him to remain lawfully in the community to await an outcome on the review application. Otherwise, the applicant would also be subject to s 48 of the Act which may prevent him from applying for certain visas while in Australia and he may also be affected by public interest criterion 4013 which limits the grant of further temporary visas for a specified period. The Tribunal notes that the applicant has never applied for a combined partner visa application, either onshore or offshore, or a protection visa application. Given the applicant has an Australian citizen spouse with whom he had a child, she would be well-placed to sponsor the applicant for the grant of a partner visa. The Tribunal does not foresee any significant issues under the character provisions which can stymie the grant of a substantive visa because the applicant’s conviction did not lead to any time under which he was remanded or imprisoned. With particular emphasis on the partner visa application as a viable option for the applicant to remain in Australia, the Tribunal places only a little weight on the adverse impact arising from the mandatory legal consequences if this visa were to remain cancelled.

    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

1. In the applicant’s response to the NOICC, the applicant, a Saudi national, did not advance any reasons to indicate that the cancellation of his student visa would entail Australia’s international obligations to him personally by returning to Saudi Arabia. The applicant did not advance any reasons during this application for review. The Tribunal notes that it is open to the applicant to validly apply for a protection visa if he has any urgent and deeply held fears of persecution or a real risk of significant harm in returning to Saudi Arabia.

2. The applicant, however, is a father of an Australian citizen, namely, his daughter, Kawthar Komil Mohammand Alshakel born on 29 January 2020. The cancellation of the visa does not prevent the applicant from applying for and being considered for the grant of a combined onshore partner visa application (Subclasses 820/801). Neither does it prevent the applicant from departing Australia with his wife and child, despite any delays in processing each individual’s migration status under Saudi laws and practices. Nor does it prevent the applicant from lodging a combined offshore partner visa application (Subclasses 309/100), while the applicant’s wife and child remain in Australia until a partner visa is granted. In this scenario, the applicant may be temporarily separated from his family for 12 months or so, although there is no guarantee the applicant would be successful.  The applicant, with his wife, are well placed to determine to remain in Australia or to be temporarily outside of it and to identify the associated risks depending on his migration options and the impact of these choices on the best interest of the applicant’s child. The Tribunal is not satisfied that in cancelling this visa the best interests of the child would be in breach of Australia’s obligations under CRC and ICCPR.

3. Taking all these matters into consideration, the Tribunal places very little weight on considerations relating to any international obligations owing to the applicant or his family against cancelling the visa.

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

4. In this case, this consideration is not relevant.

   Any other relevant matters – contributions to the community

5. The applicant stated to the Department in his NOICC response that since arriving in Australia he has contributed to the local community by volunteering at Lentil as Anything in Thornbury, Victoria and by regularly donating to the Australian Red Cross. The Tribunal accepts this and gives these contributions to the community only a minute degree of weight against cancelling the visa.

   Any other relevant matters – seriousness of the offence leading to the ground for cancellation and related concerns

6. The activities for which the applicant was charged and fined were deliberate, intentional and coordinated. They wilfully aimed to inflict violence and intimidation on a person’s physical and emotional integrity. Thankfully the physical assault did not result in long term injuries. The claimed provocation that led to the incident was not justified and out of proportion to the claimed harassment his wife may have been experiencing. At the hearing, the applicant demonstrated knowledge of the lawful role the police and courts plays in preventing the kind of harassment against which he and his wife responded. The Tribunal accepts the applicant has genuine remorse about the incident.

7. The Tribunal notes the punishment the applicant had been subject to included fines amounting to AU$6,000. He was not remanded or imprisoned for any period of time. Neither was he compelled to undertake any community service activities as punishment.  This would indicate the authorities considered the degree of the assault was at the lower end of seriousness.

8. Moreover, there is no evidence that the applicant has committed any further offences, against the victim he assaulted in 2017 or any other person. Indeed, there is no evidence of a personal safety order taken out by the victim against the applicant and/or his wife. 

9. There is evidence in the Amended Statement of Material Facts that the applicant claimed to the victim he assaulted that the applicant had killed in the past. This appears to be a baseless and foolish act of intimidation. The Department sought information from Saudi Arabia about whether the applicant had any convictions against his name, which is recorded in the departmental file. The Saudi authorities responded with information that he had no record of criminal offending at all.

10. With particular emphasis on the admitted assault as being at the lower end of offending and in the context of no prior or later offending taking place, the Tribunal places a small degree of weight in favour of the visa being cancelled.

    Conclusion

11. In this matter, the ground for cancellation is made out. With his spouse, the applicant did wilfully assault a person for which he was fined. The applicant’s offending remains of serious concern.

12. Nevertheless, it is the role of the Tribunal in assessing reviews of cancellation decisions to weigh up all the factors and all the available evidence before exercising its discretion.

13. The Tribunal is satisfied that the applicant’s overall visa and educational history since 2013 is one of compliance and academic progress. It accepts the applicant is a genuine temporary entrant who wished to return to his country of nationality, where he can work and settle with his family. Given this and in the context of the generally lower nature of the offending attracting only a minor punishment and the lack of any other offending, either in Saudi Arabia or Australia, the Tribunal assesses that those factors in favour of the visa being reinstated have outweighed those factors in favour of having the visa remain cancelled.

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

15. The applicant should be aware that this decision was reached only marginally in his favour.

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Brendan Darcy
    Member