Alvindo (Migration)

[2024] AATA 3378

Alvindo (Migration) [2024] AATA 3378 (9 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryo Alvindo

CASE NUMBER:  2422953

HOME AFFAIRS REFERENCE:               BCC2024/3247509

MEMBER:David McCulloch

DATE:9 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 September 2024 at 9:03am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of an offence – medical condition – expressions of remorse – mental health issues – courses completed – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 July 2024 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 Indonesia born on 18 November 2000. The visa that has been cancelled was granted on 17 June 2022 for a stay period until 15 March 2025.

3. The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of the visa on 17 June 2024. The applicant responded in writing.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against the law of the Commonwealth or 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. The applicant appeared before the Tribunal on 30 August 2024 at 9.30am to give evidence and present arguments. The Tribunal also received oral evidence from Ms Juliana Bongso, the applicant’s mother, Ms Anggy Tanjaya, the applicant’s great aunt, and Mr Varis Rosyidin, the applicant’s friend and a paralegal.

6. The Tribunal hearing was held by video using Microsoft Teams with the applicant present at an immigration detention facility. The witnesses appeared by Teams.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. The applicant was represented in relation to the review.

9. 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

10. 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?

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, reg 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)).

12. The delegate’s decision indicates the following information from the Melbourne Magistrates Court that the applicant has been convicted of, and pled guilty to, the following offences:

    4 June 2024 – Melbourne Magistrates Court

    Knowingly possess child abuse material – breach of Act 6231.51G.1 on 20 July 2023

    Outcome: Convicted - Community Correction Order for 24 months commencing 4 June 2024 plus 200 hours of community work – sentenced to a registrable offence pursuant to the Sex Offender Registration Act 2004 and to report to Victoria Police for 8 years

    Use optical surveillance device – Breach of Act 99/21.7.1 from 19 November 2022 to 20 July 2023

    Outcome: Convicted Community Correction Order for 24 months commencing 4 June 2024 plus 200 hours of community work

    Use optical surveillance device – Breach of Act 99/21.7.1 from 17 February 2021 to 14 January 2022

    Outcome: Convicted Community Correction Order for 24 months commencing 4 June 2024 plus 200 hours of community work

13. In the hearing, the applicant acknowledged these convictions and sentences.

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. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 Procedural Instruction ‘General visa cancellation powers’.

16. 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.

17. A submission on behalf of the applicant was provided to the Department in response to the NOICC together with supporting documents. Similar documents were provided to the Tribunal referred to in a Statutory Declaration made by the applicant explaining relevant and claimed extenuating circumstances.

18. The applicant provided to the Tribunal on 27 August 2024 notes of consultations he had with International Health and Medical Services. The information provides notes of seven consultations between 31 July 2024 and 16 August 2024: three consultations with a Primary Health Nurse, one with a psychiatrist and three with a counsellor. Relevantly one of the consultations indicates that the applicant carries guilt due to his wrongdoings. Another indicates the applicant advising that he was convicted of taking photos of women using his mobile phone in public toilets.

19. The applicant also provided to the Tribunal written evidence including emails of recently (in August 2024) attempting to obtain psychological support.

20. The applicant provided two responses following the hearing, including in response to information put in the hearing pursuant to s.359AA of the Act (discussed below).

21. Relevant submissions and documents are referred to in the following consideration of discretionary factors, dealt with in order of importance as considered by the Tribunal.

    Circumstances in which ground for cancellation arose – extenuating circumstances beyond the applicant’s control in relation to circumstances of ground for cancellation

22. The Tribunal obtained from Victoria Police the factual allegations relating to the convictions.

23. The Tribunal from that information put the following to the applicant in the hearing pursuant to the procedural requirements of s 359AA of the Act. The Tribunal put to the applicant that the allegations are that on 20 July 2023 the applicant went into a female toilet following which the 11-year-old victim entered the bathroom. The victim whilst in a cubicle observed a mobile phone emerge from above the cubicle divider. The victim screamed and called out to her father and brother who were outside. The applicant quickly tried to flee the bathroom and was stopped by the father. Security and police arrived. The applicant’s phone was seized.

24. The allegations go on to say that the police have analysed 4000 files of the 11,978 files downloaded from the applicant’s phone. Police located the following:

    ·37 photographs and one video of different females undressing in retail change rooms

    ·47 photographs of different females sitting on public toilets without pants on, all taken from above the cubicle wall

    ·three photographs taken on a train or tram of views between a female person’s legs

    ·two photographs of a female sitting on an apartment balcony wearing a bra, with the second photograph of the same female with two other males wearing T-shirts

    ·73 photographs and one video showing a view into a high-rise apartment window depicting a female in underwear, getting dressed, kissing another male on the bed, lying in bed with another male, and video of the female having sexual intercourse with a male.

25. The Tribunal put to the applicant that this information was relevant because it indicates repeated instances of serious inappropriate conduct in terms of serious breaches of privacy with and inappropriate use of a smartphone to record very private behaviour all as underpinning the convictions. The scope and scale of the inappropriate conduct is very significant and extremely intrusive in terms of the impact on the individuals involved. The consequence of relying on this information could be to conclude multiple serious instances by the applicant of inappropriate and criminal behaviour as an overwhelming adverse discretionary factor to the applicant in the consideration of the Tribunal’s discretion whether to cancel the visa.

26. The Tribunal indicated that it will consider in response the written explanations and material provided by the applicant.

27. The written statement by the applicant indicates that an explanatory factor leading to the convictions is that he was a victim of sexual abuse in the past which has indirectly influenced his actions. This is explained as a situation when the applicant was five years old being taken care of by a babysitter. The babysitter had sexual intercourse with an unknown man in front of the applicant which was discovered by the applicant’s mother. Subsequently, the applicant refused to go to school and turned rebellious. There was uncertainty as to what the babysitter did when the applicant was being taken care of. It is claimed that childhood trauma has influenced the misdemeanour.

28. The applicant also claims that his mother believes that a medical condition has influenced the applicant’s growth. An arachnoid cyst was found on the applicant’s left temporal lobe. The applicant provides brain scans. However, there is no report providing an assessment of the brain scans. Only images have been provided without explanation. The applicant ended up having successful surgery in Singapore to remove the cyst. Subsequently the applicant had a head fall and his family believes that this has directly or indirectly influenced his behaviours.

29. In the hearing the Tribunal indicated he could respond to the s 359AA information orally or in writing. The applicant was also warned as to his privilege against incriminating himself beyond the circumstances leading to the convictions.

30. The applicant provided an oral response and information following the hearing in writing. The applicant indicated in the hearing that he had been very stupid and did not know what he did was illegal. He indicates that he has not committed any further offences after he was caught. He indicates he was traumatised because the victim’s father bit him after the offence. He indicates he did not know the victim was a child. He indicates that he did not gain satisfaction from the photographs that he took, he just kept them in his gallery. He indicates he never threatened victims. He indicates that he never distributed images but just kept them for himself. He indicates that he is remorseful and has been disadvantaged by his behaviour financially and emotionally.

31. The applicant also provided these explanations in writing following the hearing emphasising that he has no interest in harming children, which is reflected in the police report. He indicates he did not follow the victim into the toilet intentionally and did not realise she was 11 years old.

32. The Tribunal asked the applicant in the hearing if he conceded that his behaviour was inappropriate and wrong. The applicant acknowledged this. The Tribunal put to the applicant that it was difficult to accept that he would not have realised that his behaviour was illegal. The applicant indicates that he was young and transitioning to adulthood and has learned from the incidents.

33. The Tribunal put to the applicant that there is no evidence that he sought any help for his behaviour prior to being caught. The applicant indicates that he now understands about himself and he wants to get help to change his behaviour. He is in the process of searching for a psychologist but that is difficult while he is in detention.

34. The applicant indicates that the cyst on his brain potentially caused difficulties thinking and could be one of the reasons for the offences.

35. The Tribunal asked the applicant for comment on the issue of him being an ongoing risk to individuals in Australia. In response the applicant said the risk of him reoffending was very, very low. He indicates that the fact of the victim’s father biting him has been a wake-up call.­

36. The applicant’s mother, Ms Bongso, in her oral evidence to the Tribunal indicates that the applicant lost his father in childhood and that there were deficiencies in her bringing up of the applicant. The applicant has suffered problems due to not having a father figure causing an inability to share feelings. She refers to the influence of social media as being a potential cause for the applicant’s behaviour. She indicates that the photographs that the applicant took of individuals in a high-rise building were not premeditated, but just occurred spontaneously. She pleads for the applicant to be given a second chance.

37. The applicant’s great aunt, Ms Tanjaya, gave oral evidence to the Tribunal that the applicant’s convictions have been a wake-up call to him. She refers to problematic influences for the applicant as a teenager and that the applicant has abused freedoms that were given to him. She indicates that a problem for the applicant is that he does not think far ahead in terms of actions. She indicates that the applicant is remorseful for what he has done. Ms Tanjaya is helping the applicant find a psychologist.

38. The applicant’s friend and a paralegal, Varia Rosyidin, gave oral evidence to the Tribunal indicating that he had accompanied the applicant to his six court hearings relating to the matter, most of which were adjournments. He indicates that the prosecutor made submissions that the applicant should receive a term of imprisonment, but the Magistrate eventually determined that the applicant should only be punished with a Community Correction Order. He noted that taken into account in the lesser sentence was the fact that the applicant was young, being 22, at the time of the offences and had no prior convictions or matters pending. The number of offensive videos found was low. The Magistrate accepted the remorse of the applicant.

39. The Tribunal takes into account as partially extenuating factors the applicant’s youth at the time of the offences. However, the Tribunal struggles to accept even accounting for the applicant’s youth and coming from another country the applicant would not have realised that his multiple acts of photographing and videoing individuals in highly private and personal acts were not illegal.

40. The Tribunal does accept the applicant’s remorse for what he has done albeit that the catalyst for this remorse is the fact that he was eventually caught in his offending.

41. It is adverse to the applicant that he only sought psychological help for his issues after being caught. Having said that, the Tribunal accepts that the applicant is now genuinely attempting to seek psychological support.

42. The Tribunal takes into account as one potential cause for the applicant’s behaviour being exposed as a young child to his babysitter having sexual intercourse. While there is no medical evidence to substantiate that the cyst that has been removed on the applicant’s brain was a contributing factor to the behaviour, the Tribunal is prepared to accept that this may have had some influence on the applicant’s behaviour. The Tribunal accepts the adverse influence of social media may have impacted the applicant’s offending.

43. However, such extenuating circumstances including current remorse or desire to get help do not fully exculpate the applicant from responsibility for many, many acts of violating personal privacy by photographing and recording private acts. The Tribunal considers the enormous violation of the dignity and privacy of the not insignificant number of individuals affected.

44. This is adverse to the applicant in the exercise of the Tribunal’s discretion.

    Purpose of the applicant’s travel to and stay in Australia

45. The applicant’s written explanation to the Tribunal indicates that he first arrived in Australia on 15 December 2019 on a Visitor visa and returned to Indonesia on 5 January 2020. He returned to Australia on the same visa and then obtained a Student visa on 26 May 2020 to study Responsible Service of Alcohol which he completed in 2021. The applicant further pursued a Diploma of Travel and Tourism Management and completed it in the same year. Evidence is provided of completion of this course. The applicant was granted the current Student visa on 17 June 2022. The applicant is undertaking a Bachelor of Tourism and Hospitality Management which is due to be completed on 25 October 2024.

46. The applicant has provided an academic transcript for the Bachelor of Tourism and Hospitality Management which shows four units studied in semester 1 of 2023 with the applicant receiving a distinction for each unit. Four units were studied in semester 2 of 2023 with the applicant receiving two high distinctions and two distinctions.

47. In the hearing, the applicant indicated that he has subsequently passed another semester in the Bachelor course, which the Tribunal accepts.

48. The Tribunal accepts that the applicant has successfully undertaken studies in Australia consistent with his purpose in being here. This is positive to the applicant in the exercise of the Tribunal’s discretion.

    Hardship if visa remains cancelled

49. The applicant’s written statement indicates that he is from a middle-class background and savings have been used to educate him in Australia for a brighter future. The applicant’s grandmother in particular has used her life savings for the applicant’s education in Australia. The applicant indicates that if the visa remains cancelled he will lose advance payments for tuition. There will be hardship to the applicant and his family through disappointment and wasted resources.

50. The applicant notes the assessment of the delegate that there would be a degree of hardship to the applicant if the visa remains cancelled (financial, emotional, psychological or other hardship).

1. The applicant in the hearing indicated that if the visa is reinstated he wishes to complete his Bachelor of Tourism and Hospitality Management and thereafter to consider other pathways to stay in Australia on a permanent basis. The applicant indicates the hardship to him if the visa remains cancelled in terms of him not being able to complete his studies creating hurdles in obtaining employment in either Australia or in Indonesia.

2. The applicant’s mother and great aunt in hearing reiterated the desire of the family for the applicant to complete his studies in Australia. It was emphasised that the applicant is the eldest son and the pillar of the family. The Tribunal notes in this respect the absence of the applicant’s father.

3. It had previously been indicated to the delegate by the applicant that there would be hardship faced by his brothers if the visa remains cancelled. In the hearing, the applicant explained this is due to the fact that he is the eldest brother thus has more responsibility in the family unit.

4. Written information provided after the hearing emphasise the sacrifice his mother and grandmother have made in terms of funding the applicant’s overseas education. The written information also indicates the toll the circumstances have had on the applicant’s mental health and that he is currently experiencing significant depression and fear and loss of confidence.

5. The Tribunal accepts significant hardship to the applicant if the visa remains cancelled in terms of him not being able to complete studies in Australia, wasted resources and limiting the ability to obtain pathways to stay in Australia on a more permanent basis and an exacerbation of mental health problems. The Tribunal accepts as the eldest brother and without a father the applicant has a prominent place in the family unit and that the hopes of the family rest to a degree on him. The Tribunal accepts hardship to the family unit if the applicant’s visa remains cancelled both in terms of the applicant not being able to complete his studies in Australia as desired as well as shame to the applicant, his family and community in Indonesia due to the circumstances in which the cancellation has occurred.

6. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of limitations on abilities to apply for many other visas to remain in or travel to Australia for a considerable period.

   Compliance with other visa conditions

7. The applicant indicates that apart from the criminal conviction there has been full compliance with the conditions of the Student visa granted on 17 June 2022. The Tribunal accepts this as weighing against exercising the discretion to cancel the visa.

   Other matters

8. In the hearing the applicant indicated that he does not fear persecution or significant harm on return to Indonesia. Thus, Australia’s non-refoulement obligations are not enlivened.

9. The applicant indicated in the hearing that there are no children in Australia whose interests are impacted by the cancellation. This therefore is not a relevant discretionary factor.

   Summary of discretionary factors and weighing of them

10. The Tribunal considers that the factual allegations and circumstances leading to the convictions are overwhelmingly adverse to the applicant. While the Tribunal takes some account of claimed extenuating factors and that the applicant is now remorseful and trying to get help, they do not fully exculpate the applicant from these multiple instances of egregious breaches of privacy.

11. The Tribunal in the applicant’s favour considers that he has been a very good student in Australia. The Tribunal considers that there is very considerable hardship to the applicant and his family if he is not able to complete his studies, wasted resources and lessening job opportunities and eliminating the ability to progress on a pathway to staying in Australia on a more permanent basis.

12. However, factors weighing against exercising the discretion, significant as they are, do not weigh against issues adverse to the applicant, particularly the circumstances leading to the convictions and the applicant having to bear some degree of responsibility for his multiple criminal acts of significant breaches of privacy.

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

    DECISION

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

    David McCulloch
    Member