Basyal (Migration)

[2023] AATA 3116

Basyal (Migration) [2023] AATA 3116 (21 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hemant Basyal

REPRESENTATIVE:  Ms Bimal Bhattarai (MARN: 9685736)

CASE NUMBER:  2303999

HOME AFFAIRS REFERENCE(S):          BCC2023/551336

MEMBER:David McCulloch

DATE:21 September 2023

PLACE OF DECISION:  Sydney

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 21 September 2023 at 2:27pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of an offence – conditional release order without conviction – multiple courses completed – skills assessed as suitable for migration – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 March 2023 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 Nepal, born in 1995. The visa that was cancelled was granted on 17 June 2021, with a stay period to 5 April 2023.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 6 February 2023. The applicant provided a response to the NOICC on 10 February 2023.

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. The applicant appeared before the Tribunal on 15 September 2023 at 9.30am to give evidence and present arguments.

6. The applicant was represented in relation to the review and the representative attended the hearing.

7. 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

8. 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?

9. 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)).

10. The delegate’s Decision Record and documents on the Department’s file indicate that the applicant was convicted of the criminal charges of ‘excluded person remain in vicinity of licensed premises’ and ‘common assault-T2’ on 7 December 2022 at the Local Court of Sydney, Downing Centre. The applicant was fined $400 and sentenced to a conditional release order without conviction for 18 months, commencing on 7 December 2022 and concluding on 6 June 2024.

11. In the hearing the applicant agreed that the information in the above paragraph was correct. The applicant’s representative conceded that there is a conviction for the purpose of determining whether the ground cancellation is made out, notwithstanding that the conviction was recorded ‘without conviction’.

12. 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

13. 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.

14. The following is a summary of the New South Wales Police Facts Sheet, which outlines the charges against the applicant.

15. On the evening of 12 November 2022, the applicant and his friend were showing signs of intoxication at the Albion Place Hotel. The applicant was asked to leave the hotel and move 50 metres away, and he became argumentative and aggressive. The applicant only moved approximately 30 metres away, and was shown a ‘50m card’ by a security guard. The applicant continued to be aggressive, spat at the security guard and refused to leave. A person tried to assist another security guard in moving the applicant. The applicant then threw a punch at this person, which resulted in an altercation. The applicant sustained a cut to his forehead as a result. The applicant was restrained by security and the venue manager until police attended the scene and placed the applicant under arrest for assault. The applicant was taken to Day Street Police Station.

16. In his response to the NOICC dated 6 February 2023, the applicant provided the following (not corrected for spelling or grammar; introduction, headings and footings omitted):

    I am writing this statement of purpose to state my keen interest to pursue further education in Leadership and Management. I came to Australia on July 2015 to study Bachelor of Information Technology in Central Queensland University, Sydney. I graduated from CQU in 2018.

    I have been engaged in different level of work, knowledge sectors from last four years here in Australia. It is my own judgement as well as genuine suggestions from my professors, well-wishers and parents. Besides these, I truly believe by acquiring additional skills in Leadership and Management combined with my strong numerical skills, will bring tremendous opportunities and expertise in leadership and strategic managements towards my future career when I return to my home country.

    It has always been my great desire to work in IT field industry from the beginning in renowned companies. I want to pursue my career as Business Analyst in the future. Recently I completed my internship at visual link IT software and web as IT support staff. After finishing my internship, I learnt so many things in my workplace and have a feeling like I lack so many things to lead my career in the future among them lack of self-confidence, poor decision making and miscommunication are my biggest problem.

    Since then, I started making up my mind by taking the lead to invest for my future by enrolling in a Diploma of Leadership Management and Advance Diploma of Leadership Management, for this I chose Australia Institute of Technology and Education (AITE) to boost self-confidence, develop an effective communication, management and negotiation skills. After the discussion with student support team and doing further research about the study plan offered by the college, I have chosen Australia Institute of Technology and Education (AITE) to study diploma and advanced diploma of leadership course. I have started studying diploma course from 03/02/2021.

    I am particularly interested in some of the core and elective units, such as; developing emotional intelligence, manage people’s performance, lead and mange team effectiveness leading and managing operational plan, meeting execution, presentation and interpretation of market trends, and role play session, I decided to join this, and I already completed nearly 8 months, I’m really enthusiastic to learn and study my diploma in leadership and management. Hopefully, it will polish my soft skills that would contribute my future career, and I believe my further level study of Advance Diploma of Leadership will contribute to develop my intended and essential attributes for my capabilities and role as senior level position in an organisation.

    The reason why I am particularly drawn to enrol the course with Australia Institute of Technology and Education (AITE) is because the college has unique teaching style that combined theoretical studies. Despite COVID, college are regularly proving the education to the student through online. It seems to me very effective. Class trainer also acts as students’ mentor that provides an extensive feedback on area of improvement and share effective techniques in leading group interaction. Another insightful course syllabus is managing operational team that provides specific methodologies for creating good team work and building organizational culture.

    I am very much satisfied with the course and teaching methodology of my current education provider. I am confident it will become a stepping stone for my career as the course is designed to unleash students’ full potential and developed leadership, management, communicative and social skills required to elevate my career, which is unavoidable part of modern organisational culture and competitive era.

    After completing this course, I intend to return to my home country and apply what I have learnt from Australian education system, and long-time accompany with innovative, multicultural and inclusive society, to contribute my society and for the development of my country as a part of well-educated individual. It also will play an integral part for my career advancement and enrichment. Therefore, I heartily request you to grant me a visa so that I can complete the course that I am currently enrolled.

    Therefore, I certify that intentionally I am planning to stay in Australia for the purpose to study and to build my career only. I can write with full certainty that practically and legally acknowledge the requirement of Australian law for international students till date and I will stay by following the law and orders during my study periods.

17. The applicant’s representative provided a submission to the Department dated 10 February 2023. The submission indicates that the applicant completed his Bachelor of Information Technology in 2018. During his studies, the applicant took up part-time employment and more recently completed his internship at a software and web company. After finishing his internship he realised he needed additional skills in leadership and management and decided on studies in this area. Throughout the applicant’s visa history in Australia he has complied with conditions imposed on previous visas and been law-abiding and contributed to the Australian economy.

18. The applicant does not dispute the offences. He accepts the incident occurred, however, he was released without conviction. It is accepted that the applicant was a little intoxicated at the time. The security guard approached the applicant and his friend in a very rude manner. A homeless person outside the hotel started abusing the applicant and pushed the applicant causing the applicant to retaliate. In the altercation, the applicant got a cut on his forehead. No one was harmed except him. To the applicant’s horror he was the only person who was arrested. It was the applicant’s first time in court or involvement in a criminal case.  The applicant had no legal representative and pled guilty. He did not know how to defend himself. He paid the fine and took the experience as a lesson for life.

19. In terms of hardship, the applicant has been in Australia since 2015 and has invested significant funds to obtain qualifications and help him achieve his career goals. He is midway through his leadership management course which is the final qualification he needs to be an IT professional. Seven years of hard work by him and his family to fund his education will be in vain. The applicant’s parents may go into severe depression if his visa is cancelled. The applicant will be ridiculed and shamed by the community.

20. The applicant is a responsible member of the community. He is registered as a blood donor.  The applicant has an excellent command of English. On completion of his studies he will be sought after in the IT sector. He will be an asset to the Australian community. He may qualify for a provisional regional skilled work visa contributing to the regional economy in Australia.

21. Cumulatively, it is requested that there be leniency and the applicant be given a second chance. The applicant is aware of the seriousness of his behaviour. He pledges to be responsible and law-abiding.

22. The applicant also provided to the Department a certificate of blood donation issued by the Australian Red Cross on 9 February 2023.

23. A further submission by a new representative was provided to the Tribunal on 14 September 2023, the day before the Tribunal hearing. A statutory declaration by the applicant was provided at the same time, together with documents. The submission refers to the lower-level nature of the offence given that no conviction was recorded. It is indicated that the applicant wishes to apply for a Skilled Migration visa which he has the ability to obtain.

24. The statutory declaration by the applicant details what happened on the night of the offence. The applicant refers to provocation that he reacted to. The applicant had a cut on his forehead and he was the only person injured. Police did not listen to the applicant’s side of the story. The applicant had no legal representation and did not know how to defend himself and as a result pled guilty. The applicant indicates that since coming to Australia in 2015 he has always respected and followed the law apart from this incident. The applicant refers to counselling undertaken in relation to drinking alcohol. In this respect a report is provided dated 14 September 2023 from Bountiful Living indicating attendance by the applicant at four counselling sessions for alcohol drinking management. It indicates that the applicant presented as a committed client in terms of learning as much as possible about his behaviours.

25. Evidence is provided of the applicant completing the following:

    ·Bachelor of Information Technology (Business Analysis) dated 19 November 2018.

    ·Diploma of Leadership and Management dated 18 February 2022.

    ·Certificate of Completion for the applicant of the ECA Professional Year Program in Information, Communications and Technology dated 8 February 2021. A Statement of Achievement is provided of the applicant being deemed competent in all five categories of the program.

    ·Advanced Diploma of Leadership and Management dated 7 April 2023.

26. Also provided was a letter addressed to the applicant from the Australian Computer Society dated 7 June 2022 indicating that the applicant’s skills have been assessed to be suitable for migration under the ANZCSO code.

27. In the hearing the applicant acknowledged what he did leading to the conviction was the wrong thing but says that he was pushed, which he reacted to causing the fight. He indicates that he was the only person who got injured. He indicates that he was intoxicated at the time. The applicant indicated that he wishes to apply for a permanent skilled visa and make a life for himself in Australia and that the key hardship if the visa remained cancelled would be his inability to do this.

28. The representative provided oral submissions that this was a first offence and emphasising the hardship that the applicant would face if the visa was to remain cancelled and that the penalty of cancellation is too harsh for what occurred.

29. The Tribunal considers and balances discretionary factors. Adverse to the applicant is that he allowed himself to be in a situation in a pub where he reacted aggressively resulting in him to be convicted for common assault and remaining when excluded in the vicinity of licensed premises. Being in Australia on a student visa is a privilege and conduct leading to criminal convictions abuses that privilege and could obviate the applicant’s entitlement to the visa and effectively to be able to remain in Australia.

30. Having said that, there are a number of matters which considered cumulatively weigh against the Tribunal exercising the discretion to cancel the visa.

31. Firstly, albeit that there is a conviction for the purpose as to whether the ground of cancellation is made out, the Magistrate convicted the applicant without recording a conviction. This indicates to the Tribunal the lower-level nature of the offence and argues against using the conviction for the purpose of imposing any significant additional penalty on the applicant.

32. Secondly, the applicant has performed well in his studies since arriving in Australia in 2015 successfully completing three different courses at Bachelor, Diploma and Advanced Diploma level as well as completing a professional year of study.

33. Thirdly, the applicant has taken mitigating action in relation to alcohol use which was clearly a contributing factor to the circumstances of the offence by undertaking alcohol counselling − evidence which has been provided to the Tribunal.

34. Fourthly, and the most significant discretionary factor, is the very significant hardship that would be caused to the applicant. The applicant has provided evidence of having gained the skills in Australia necessary to obtain a permanent skilled visa enabling the applicant to make a life for himself in Australia. The continued cancellation of the visa would render the applicant ineligible to apply for the skilled visa. The Tribunal considers that this is a very significant hardship to the applicant given his time and study efforts in Australia over the last eight years and would very significantly impact the future direction of his life.

35. Fifthly, the applicant has already suffered the additional penalty in addition to the fine and conditional release order in that he has had ongoing uncertainty as to his future in Australia and having to go to the expense of engaging a lawyer to represent him in relation to the review of the cancellation of the visa. This is not an insignificant additional penalty.

36. The Tribunal considers that these matters considered cumulatively outweigh the convictions and the circumstances leading to the convictions in terms of the exercise of the Tribunal’s discretion.

37. At its heart, the Tribunal considers that the penalty that the applicant would suffer if the visa remains cancelled in terms of him not being able to progress and make a life himself in Australia on a skilled visa is a significantly disproportionate penalty in the context of the applicant performing well in his studies and the Tribunal accepting that the offence was a characteristic and one-off offence for which he has taken responsibility and undertaken remedial actions.

1. The Tribunal determines not to exercise its discretion to cancel the visa.

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

   DECISION

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

   David McCulloch
   Member