Bhangu (Migration)

Bhangu (Migration) [2021] AATA 2828 (27 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpreet Singh Bhangu
CASE NUMBER:  2013305
HOME AFFAIRS REFERENCE(S):          BCC2020/1954829
MEMBER:Michael Ison
DATE:27 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 27 July 2021 at 5:24pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to safety of former partner and her young child – offences including trespass, assault and threats – early guilty plea to most charges and other charges withdrawn – psychological assessment and completion of anger management course with little insight or remorse – community support and no intervention order made – discretion to cancel visa – completion of sentence and possibility of extended immigration detention because of COVID-19 travel restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 375A
CASE
Gong v MIBP [2016] FCCA 561
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 August 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 (the Act).
Background
The applicant in this review is Mr Harpreet Singh Bhangu, who is a 36-year-old Indian national. Mr Bhangu is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.
The applicant first arrived in Australia on 17 November 2017 as the holder of a Temporary Activity (Entertainment) Class GG (Subclass 408) visa that was valid to 17 December 2017.
On 15 December 2017 the applicant lodged an application for a Student (Subclass 500) visa which was refused on 10 February 2018.
On 26 February 2018 the applicant lodged an application at the Tribunal to review the decision to refuse to grant him a Student visa. In Tribunal case number 1805015 the Tribunal, differently constituted, reviewed the decision in relation to the Student visa and on 25 July 2018 remitted that decision back to the Department with a direction that it be re-considered.
On 10 September 2018 the applicant was granted a Student visa.
On 20 August 2020 the applicant’s Student visa was cancelled because on 16 July 2020 the applicant was charged by Victoria Police with 11 criminal charges for family and domestic violence related alleged offending. At the time of the decision to cancel his Student visa the applicant was being held on remand at the Melbourne Metropolitan Remand Centre.
On 27 August 2020 the applicant lodged with the Tribunal an application to review the decision to cancel his Student visa.
On 15 February 2021 the Tribunal was advised by the Department of Justice that the applicant was located at Ravenhall Correctional Centre.
On 24 March 2021 the Tribunal was advised by the applicant’s representative that the applicant had been released from prison and was now detained in the Melbourne Immigration Transit Accommodation (MITA), which is an immigration detention centre.
At the time of this decision the applicant remains in immigration detention at MITA.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
A delegate of the Minister for Home Affairs cancelled the applicant’s Student visa under s.116(1)(e)(ii) on the basis that the applicant had been charged with 11 family and domestic violence related criminal offences for alleged behaviour against a former de facto partner. The delegate found the applicant was or may be a danger to the health and safety of his former partner and her young daughter, such that there was a ground under s.116(1)(e)(ii) to consider the cancellation of his visa. The delegate considered the discretionary considerations and found that on balance, those considerations that supported the cancellation of the applicant’s visa outweighed those considerations that weighed against the cancellation of that visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Tribunal hearings
On 12 February 2021 a hearing invitation was sent to the applicant’s last known email address inviting the applicant to appear before the Tribunal by video on 10 March 2021 to give evidence and present arguments.
On 12 February 2021 the Tribunal received an email from that email address advising that the applicant was in prison and requesting the Tribunal to communicate directly with the applicant as the third party had passed the message with the hearing invitation on to the applicant.
On 15 February 2021 the Department of Justice confirmed for the Tribunal that the applicant was remanded in custody at Ravenhall Correctional Centre.
The Tribunal hearing on 10 March 2021 was cancelled and on 23 February 2021 the Tribunal rescheduled a video hearing for 22 March 2021 and sent that invitation directly to the applicant at Ravenhall.
On 19 March 2021 the Tribunal received documentation appointing a lawyer, Mr Manjot Singh of Dhillon Legal, as the applicant’s representative. Mr Singh acted for the applicant on a pro bono basis, which means without being paid for his services. Mr Singh’s representation of the applicant was of great assistance to the Tribunal in the conduct of this review.
Mr Singh provided timely, high-quality submissions and relevant information to the Tribunal, despite not being paid for this work, and the Tribunal acknowledges the professionalism of Mr Singh throughout the review. Mr Singh is referred to in these reasons as the applicant’s representative or the representative.
The applicant appeared before the Tribunal on 22 March 2021 by telephone, 15 April 2021 by video and 13 July 2021 by video to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter who could speak in the Punjabi and English languages. The interpreter participated in each hearing by video.
The applicant’s representative participated in each of the Tribunal hearings, also by video.
The Tribunal hearings were held during the COVID-19 global pandemic. The Tribunal determined it was reasonable to hold the hearings by telephone and video, 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 by audio-visual link. The Tribunal was satisfied the applicant, his representative, the interpreter and the Tribunal could satisfactorily see or hear and understand each other throughout the hearings.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal.
Tribunal hearing 22 March 2021
The applicant appeared before the Tribunal on 22 March 2021 to give evidence and present arguments. The Tribunal arranged to conduct the hearing with the applicant participating by video from Ravenhall Correctional Centre. On the day the staff at Ravenhall were unable to establish a video connection with the Tribunal. The Tribunal offered to continue the hearing by having the applicant participate in this hearing by telephone. The applicant agreed to this approach and the hearing proceeded with the applicant participating by telephone while his representative, the interpreter and Tribunal participated by video.
At the commencement of the hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant if he had any objections to the interpreter retained by the Tribunal. The applicant did not.
The applicant’s representative requested that this hearing be adjourned without considering the substantive issues in the applicant’s review because the applicant had pleaded guilty to six of the eleven criminal charges filed against him and his plea hearing was only part completed, with another hearing day scheduled for the day after the Tribunal hearing.
The Tribunal agreed to this request and the Tribunal hearing was adjourned to April 2021.
Tribunal hearing 15 April 2021
The applicant appeared before the Tribunal on 15 April 2021 for the resumption of the adjourned hearing. The applicant participated in this hearing by video from MITA and all other participants participated by video.
The Tribunal explained the role of the interpreter as an aid to communication and asked the applicant if he had any objections to the interpreter retained by the Tribunal. The applicant did not.
The applicant’s representative requested that this hearing also be adjourned without considering the substantive issues in the applicant’s review. The applicant’s representative submitted to the Tribunal that after the applicant was released from Ravenhall and detained at MITA he applied for a Bridging E visa but this was refused, purportedly on the basis – at least in part – that the delegate of the Minister who interviewed the applicant as part of the assessment of the applicant’s application for the Bridging E visa considered the applicant had shown insufficient remorse.
The applicant’s representative requested a two-month adjournment so that the applicant could organise funds to pay for an assessment by a clinical psychologist in Australia to support his claims of being remorseful and unlikely to re-offend. The applicant’s representative submitted that the applicant had lodged an application with the Tribunal to review the delegate’s decision to refuse to grant him a Bridging E visa. That application for review was assigned Tribunal case number 2107992 and was heard by the Tribunal differently constituted.
It is very unusual in the Tribunal’s experience for someone being held in immigration detention to request a two-month adjournment. When a visa applicant is being held in immigration detention the hearing and determination of their review is a high priority matter for the Tribunal, given the cancellation of their visa has resulted in them being deprived of their liberty to live in the community.
The Tribunal discussed the requested adjournment directly with the applicant. The applicant explained that he felt it was important to his case that he have a psychologist’s report but he needed time to arrange funds to be able to pay for the report. The applicant’s representative confirmed for the Tribunal that Dhillon Legal was acting for the applicant without charging for its services, but the representative was not authorised by the firm to pay for disbursements for the applicant, such as the cost of a clinical psychologist assessing and reporting on the applicant’s remorse and risk of future offending.
The applicant’s representative submitted that the applicant would need two weeks to arrange the required funds, that it would take four weeks to book the psychologist and for the psychologist to see and assess the applicant in MITA and then another two weeks for the psychologist to write their report.
The Tribunal agreed to the request for an adjournment and the Tribunal hearing was adjourned to a date and time to be fixed.
Tribunal hearing 13 July 2021
The applicant appeared before the Tribunal on 13 July 2021 for the resumption of the adjourned hearing to give evidence and present arguments. The applicant participated in this hearing by video from MITA.
During this hearing the Tribunal also received oral evidence from Ms Neetu Verma, a family friend of the applicant.
At the commencement of the Tribunal hearing on 13 July 2021 the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal explained the role of the interpreter as an aid to communication and asked the applicant if he had any objections to the interpreter retained by the Tribunal. The applicant did not. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and his representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
Certificate issued by the delegate under section 375A of the Act
The Tribunal received a certificate dated 9 September 2020 issued by a delegate of the Minister under s.375A of the Act.
The Tribunal provided the applicant with a copy of the certificate in its invitation to the applicant to attend a hearing on 22 March 2021. During that hearing the Tribunal explained to the applicant what a certificate issued under s.375A of the Act is and what effect it has in the following terms:
There has also been a certificate issued under s.375A of the Migration Act. That is a certificate that says the Tribunal cannot release parts of the Department’s file that the Tribunal has a copy of, to you. In this case the certificate is dated 9 September 2020 and applies to 9 documents, which are emails between Victoria Police and the Department keeping each other updated about your criminal proceedings and the possible cancellation of your Student visa in July and August of last year.
The Dept says these documents should not be released to you because they would reveal what is broadly known as law enforcement methods. I am not satisfied that is the case, at least not in relation to all of the documents covered by the certificate. What I intend to do is to release most or all of the documents to you with any sensitive information redacted. Once Mr Singh has received those documents on your behalf, he can then make submissions about the certificate and whether the redacted information should also be released to you.
Mr Banghu do you have any questions about that?
Mr Singh does that seem a reasonable approach from your perspective?
The applicant did not have any questions for the Tribunal about the certificate and the applicant’s representative supported the Tribunal’s approach to dealing with the certificate.
On 26 March 2021, in the invitation to the applicant to attend a Tribunal hearing on 15 April 2021, the Tribunal provided copies of the nine documents covered by the s.375A certificate with some redactions, largely being the personal information of third parties that was not relevant to the applicant’s application before the Tribunal.
The Tribunal did not receive a submission in relation to the certificate or the redactions to the released documents from or on behalf of the applicant.
Tribunal, differently constituted, makes a decision on the Bridging E visa refusal
On 29 June 2021 the Tribunal, differently constituted, made a decision to affirm the decision of the delegate to refuse to grant the applicant a Bridging E visa in Tribunal case number 2107992.
Pre-hearing submissions
On 19 March 2021 the Tribunal received a submission on behalf of the applicant which attached documents including:
·Two identical emails dated 19 March 2019 from Dhillon Legal including:
(i)A one-page written statement from the applicant’s representative;
(ii)completed Change of Contact Details for the applicant form; and
(iii)two completed Appointment of Representative and Authorised Recipient forms.
·A one-page written statement dated 19 March 2021 from the applicant’s representative including a Copy of the Victoria Police document titled ‘Preliminary Brief - Statement Made by Informant’ dated 24 August 2020. The Preliminary Brief also included the following documents:
(i)Charge – Sheet from Victoria Police dated 16 July 2020;
(ii)Statement from the adult victim dated 12 July 2020;
(iii)Statement from the adult victim dated 13 July 2020;
(iv)Statement from the adult victim dated 14 July 2020;
(v)Statement from the adult victim’s friend, who witnessed some of the offending, dated 22 July 2020;
(vi)Exhibit 1: 4 x photographs depicting the adult victim’s injuries;
(vii)Exhibit 2: 1 x photograph depicting an injury to the adult victim;
(viii)Exhibit 3: 2 x photographs depicting the knife used by the accused; and
(ix)A one-page certificate stating the applicant has no prior criminal convictions in Australia.
·A two-page written statement dated 19 March 2021 from the applicant’s representative in relation to the progress of the applicant’s criminal proceedings advising the Tribunal the applicant remained in Ravenhall as his criminal proceedings had not been finalised at that time. The applicant’s representative advised the Tribunal:
A plea hearing was held yesterday. Another plea hearing will take place on the 23/03/2021. Please see below the charges that our client plead guilty to from yesterday’s hearing:
Plead Guilty
2. Trespass
4. Common law Assault
6. Threat to Kill.
8. Unlawful Assault.
10. Threat to inflict serious injury
11.Threaten to distribute intimate image.
Please note the balance of the charges have been withdrawn. Considering my client has plead guilty to the above listed charges, he does not wish to rely on his privilege against self-incrimination during this review.
I will need more time to provide the following as I have just taken over representation for my client’s immigration matter:
•Information pertaining to discretionary considerations in my client’s circumstances in response to the delegate’s decision to cancel his Student visa;
• Academic update and any relevant documents; and
•Any other court documents providing the decision or outcome of his criminal matter. (sic) (emphasis in original)
·On 24 March 2021 the Tribunal received a one-page written statement from the applicant’s representative, which stated:
Please note that the Presiding Member requested that we send an update regarding our client’s criminal matter.
Our client has been released from prison. He was sentenced to 4 months imprisonment however served a total of 8 months in prison pre-sentence. Due to the length of time already in prison, he was released.
Since his release from prison he has been taken into immigration detention at Broadmeadows. Today we have applied for a Bridging E Visa so he can become a lawful non-citizen and hopefully be released from detention.
As I understand, the update to the Member will assist in determining when the new hearing date will be for his current merits review.
We will be providing a submission in response to the letter dated 23/02/2021 to provide the requested information as soon as possible and at least one week prior to the new hearing date. (sic)
On 22 June 2021 the Tribunal received a submission on behalf of the applicant which attached documents including:
·A report dated 31 May 2021 from Ms Carla Lechner, clinical psychologist; and
·A one-page written statement from the applicant’s representative.
On 7 July 2021 the Tribunal received a submission on behalf of the applicant which attached documents including:
·A two-page cover letter to the submission from the applicant’s representative;
·A seven-page written submission from the applicant’s representative;
·The Record of Decision of whether to cancel the applicant’s Student visa under section 116 of the Migration Act 1958 dated 20 August 2020 from the Department;
·The report dated 31 May 2021 from Ms Carla Lechner, clinical psychologist;
·A letter dated 7 July 2021 from Mr Robert McInnes, counsellor, confirming the applicant has completed a four session Anger Management Course run by Cognitive Principle Therapy Pty Ltd with the last session being completed on 7 July 2021;
·The Notice of Order Made dated 23 March 2021 issued by the Magistrates’ Court of Victoria at Sunshine; and
·A resumption of adjourned hearing invitation dated 30 June 2021 from the Tribunal with the hearing response form section of the invitation completed on behalf of the applicant.

On 8 July 2021 the Tribunal received a submission on behalf of the applicant which attached documents including:
·The full letter dated 7 July 2021 from the Mr Robert McInnes, counsellor, with the missing page being Mr McInnes’ background and qualifications; and
·A Statutory Declaration from Ms Neetu Verma sworn on 7 July 2021.
The applicant’s representative also submitted during the Tribunal hearing that the applicant is a talented mechanic and his previous employer in Australia, where he worked up to 20 hours per week while holding his Student visa, would be happy to have him back. The Tribunal accepts this submission.
The Tribunal also received various other correspondence from the applicant’s representative in relation to arranging the applicant’s participation in the Tribunal hearings and other administrative matters.
Tribunal decision
The Tribunal has had regard to the applicant’s and Ms Verma’s oral evidence, all of the information in the written and oral submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Tribunal’s copy of the Department’s file.
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
Under s.116 of the Act, the Minister may cancel a visa if the Minister 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)(e) which states:
(e)      the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i)  the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii)      the health or safety of an individual or individuals; …
If satisfied that a 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?
s.116(1)(e)(ii) - risk to the health or safety of an individual
A visa may be cancelled under s.116(1)(e)(ii) if the Minister is satisfied that the presence of the visa holder in Australia is or may be a risk to the health or safety of an individual, in this case the applicant’s former partner and her young daughter. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
The Tribunal asked the applicant whether he agreed that there was a ground for the cancellation of his Student visa. The applicant told the Tribunal he does not agree.
The background to the cancellation of the applicant’s Student visa is set out in the Preliminary Brief provided by the applicant to the Tribunal, which may be summarised as follows:
·The applicant met and dated the adult victim in Australia through their workplace but they maintained separate residences, including because the adult victim has a daughter who at the time of the applicant’s offending was four years old;
·The adult victim ended their relationship after about three months when she found out that the applicant had a wife and two children back in India;
·The adult victim did not hear from the applicant for about six months but from June 2020 the applicant tried to force his way back into the victim’s life;
·On 27 June 2020 the applicant confronted the adult victim at a restaurant where she was having dinner with her daughter and her accountant. The applicant showed the accountant photos of the adult victim and her daughter and told the accountant that the applicant was in a relationship with the adult victim and was the father of the adult victim’s daughter. The adult victim told the accountant that was not true and asked the applicant to leave the restaurant, including eventually by threatening to call the police;
·The adult victim’s accountant subsequently provided a statement to police corroborating the adult victim’s version of events of what happened at the restaurant;
·When the adult victim returned to her house the applicant came to her house, did not leave when requested and assaulted the adult victim, in front of her daughter, the child victim, first dragging the adult victim by the arm into the house and then once inside the house grabbing her by the neck until she could not talk or breathe and threatened to kill the adult victim;
·These actions caused the adult victim pain, bruising and to lose her voice for three to five minutes and caused the child victim to become increasingly distressed as the assault of her mother continued;
·The applicant pleaded guilty to charges two (trespass), four (assault) and six (threat to kill) arising from this conduct;
·On 11 July 2020 the applicant attended the adult victim’s house and assaulted the adult victim, including by slapping her to the side of the face several times, accessed her mobile telephones without her permission, forced the adult victim to partially undress and took photos and a video of her partially undressed and threatened to distribute those images on the internet;
·The applicant subsequently grabbed a knife from the kitchen and held it to his arm and throat and told the adult victim how easy it would be to cut himself and to kill her and her daughter, although the Tribunal notes the applicant pleaded guilty only to the lesser charge of threat to inflict serious injury rather than threaten to kill in relation to this incident;
·The adult victim’s daughter was present in the house during this incident, asleep in her bedroom according to one of the statements to the police made by the adult victim;
·The applicant pleaded guilty to charges eight (assault), 10 (threat to inflict serious injury) and 11 (threaten to distribute intimate image) arising from this conduct;
·A mutual friend of the adult victim and the applicant told the adult victim that he (the mutual friend) got the applicant to delete the images the applicant took of the adult victim partially undressed;
·Police tried to interview the adult victim’s four year old daughter who did not want to talk about the incident on 27 June 2020 but told police about the applicant that “… he always hurts my mummy.”; and
·The adult victim’s statements include that at the time of those statements she was “terrified” of the applicant, scared that he may assault her again and wants him to leave her alone for good. The Tribunal did not receive evidence from the adult victim and has no updated information about her views about the applicant.
The applicant told the Tribunal his behaviour towards his ex-partner was a mistake and occurred after he had been drinking alcohol and he would not repeat this mistake. The Tribunal asked the applicant whether he was blaming the effects of alcohol as an excuse for his criminal offending. The applicant responded that due to his consumption of alcohol everything happened but he should not have drunk that much and even having drunk that much alcohol he should have behaved more responsibly. The applicant told the Tribunal that he does not often drink too much and had since committed to not drinking alcohol at all.
The applicant also told the Tribunal later in the hearing that he now understands he cannot force anyone to do what he wants or tell anyone forcefully to do something and he did not have the right to try to force the adult victim to stay in a relationship with him.
The Tribunal asked the applicant what he had learned from these incidents to which the applicant responded that you have to be careful not to make any mistakes in life and you should not drink alcohol and get intoxicated but should just do your work and look after your family. The applicant told the Tribunal that he had learned he has spoiled his life by doing that small mistake and that after drinking he gave a hard time to those people he had an altercation with and he should not have done that.
The Tribunal asked the applicant what impact he thought his actions had on the adult victim. The applicant told the Tribunal it was bad because the adult victim was not expecting the applicant to act as he did and that she must be thinking about what sort of person I am who has given her such a hard time during all my acts. He also added later in the hearing that he feels sorry and remorseful for giving her a hard time, he should have respected her and she is also a family member to others and the applicant should have considered that.
The Tribunal asked the applicant what impact he thought his actions had on the victim’s very young daughter, the child victim. The applicant responded that whatever the child victim saw might make a difference to her mental state and she could go into depression and it should not have happened.
The Tribunal asked the applicant what he had learned from the anger management course he had completed. The applicant told the Tribunal he had learned a lot of things from there that he cannot put into words but they included not getting angry at small things. The applicant later in the hearing added to this that he has learned from the course that he should have controlled his behaviour and he now knows how much problems his victims went through so he will not create problems for anyone else.
The Tribunal asked the applicant if he was in a situation where he was angry, what would he do in future. The applicant told the Tribunal that his offending against the adult victim was the first mistake he has done and he will make sure it does not happen again. The applicant said if he cannot control his anger at any time in the future or his head feels heavy he will seek help, such as by going to the doctor and talking to the doctor.
The Tribunal asked the applicant if he was angry at a woman, such as his wife or any other woman, in the future what would he do. The applicant told the Tribunal he would let his wife do whatever she was doing that made him angry because she is an equal partner in his life and she can make her own decisions.
The applicant told the Tribunal his wife in India was angry with him and has told him he should not have done what he did but she has forgiven him and their relationship is continuing and ongoing but his wife has said he cannot act that way again because they have their own children and the applicant needs to think of their family.
The applicant also gave evidence that he intends to participate in further counselling if he is released from MITA because he wants to continue to improve himself and his behaviour and wants to learn when he needs to talk to someone to help him.
Ms Verma gave evidence that she is a friend of the applicant’s family in India and believes the applicant is a good person who she considers to be like her younger brother. Ms Verma owns her own house (subject to a mortgage) where she lives with her younger brother who is also an Australian citizen and he contributes to the household expenses. Ms Verma told the Tribunal she has steady employment and a consistent income, even during the COVID-19 global pandemic. Mrs Verma has offered to house, clothe and feed the applicant for free if he is released from MITA.
Ms Verma and the applicant both gave evidence that it was Ms Verma who paid for the psychological assessment of the applicant and Ms Verma said she would also support the applicant financially to resume his studies. The applicant told the Tribunal he thought Ms Verma would also assist him financially if he wanted to undertake further counselling.
The Tribunal noted to the applicant that the adult victim in one of her statements to the police said the applicant forced her to give him AUD5,000 and the applicant still owed her, at the time of the statement, AUD4,000. The applicant told the Tribunal he had repaid the money in payments of smaller amounts, but the amounts he claimed to have repaid did not add up to AUD4,000. The applicant told the Tribunal he did not owe the adult victim any more money. The Tribunal did not find the applicant’s evidence in relation to the repayment of the debt he owed to the adult victim to be convincing.
The Tribunal noted to the applicant that Ms Lechner, clinical psychologist, had assessed the applicant based on one interview that lasted for two and a quarter hours as a low risk of further offending of a violent nature, but also reported the following, which the Tribunal read to the applicant and invited his response:
Having said that, Mr. Bhangu’s behaviour escalated very quickly into quite serious offending which he finds difficult to explain beyond, at that time, wanting to scare the victim into resuming their relationship. He now sees this as totally inappropriate but would benefit from further counselling supports … .
The applicant said he could not properly explain his offending in front of Ms Lechner because he felt difficult and ashamed to explain all those charges to her. The Tribunal finds this difficult to accept given the applicant has spent another two months in immigration detention so he could be assessed by a clinical psychologist and was of the view when requesting an adjournment for this purpose that such assessment was crucial to his application for review and especially to establish his genuine remorse for his offending.
The Tribunal invited the applicant to explain to the Tribunal why he acted the way he did towards the adult victim. The applicant told the Tribunal he had been drinking at home and then got into an argument with his victim that reached a level that he could not control.
The Tribunal noted there was a break in time between the applicant confronting his victim at the restaurant and subsequently assaulting her at her home and asked the applicant why he was unable to cool down during this time. The applicant told the Tribunal that he wanted to stay in a relationship with the victim and was jealous of her, particularly when he saw her with another man. The applicant said he has now learned that he does not have any right to control the victim and she has the right to live her life as she chooses to, including by not being in a relationship with the applicant. The applicant repeated that he made a mistake and has learned his lesson and told the Tribunal if the victim was his sister and someone behaved like he did, he would not like it.
The applicant’s representative submitted that the applicant is not and will not be a danger to either the adult victim or her daughter the child victim and therefore there is not a ground to cancel his visa. In support of this submission the applicant’s representative submitted:
·the sentencing Magistrate took into account the applicant’s genuine remorse when sentencing him to four months imprisonment;
·Victoria Police did not seek the imposition of an intervention order as part of the applicant’s sentence, indicating they do not regard the applicant as an ongoing risk to the adult victim and her daughter, the child victim;
·the clinical psychologist has assessed the applicant as a low risk of re-offending in this manner again;
·this is the lowest risk level as a psychologist is not able to find there is no risk;
·the applicant spent eight months in prison where he was able to reflect on his circumstances and behaviour;
·the applicant has shown insight into his offending by demonstrating an understanding of his own feelings of jealousy and anger and has learned that it was not his right to try and control the adult victim and has demonstrated genuine understanding of this by applying this insight to his relationship with his wife;
·the applicant also demonstrated insight into the impact and effect of his behaviour on the adult victim and her daughter, the child victim;
·the applicant has committed to undertaking further counselling following his wife’s forgiveness of him because his insight and remorse has made the applicant realise he needs to continue to work on managing his emotions and anger;
·the applicant has excellent community support including free accommodation and support and also his former employer has indicated a willingness to re-employ the applicant who is a talented mechanic, while the applicant would like to resume and finish his studies; and
·if the applicant’s Student visa is cancelled and he remains in immigration detention he will remain there for a considerable period due to the travel restrictions imposed in response to the COVID-19 global pandemic at significant cost to the Australian community in circumstances where he is not a risk to the adult victim or her daughter, the child victim, has excellent community support and has the skills to work and contribute to the community.
The applicant did not call his wife as a witness and did not provide any written statement from her. However, the Tribunal accepts the applicant’s oral evidence that his wife in India has forgiven him and their relationship is continuing, which is consistent with his self-reported history documented by Ms Lechner in her report dated 31 May 2021.
The Tribunal accepts Ms Lechner’s assessment that the applicant is at low risk of similar offending in future, but notes Ms Lechner’s report and assessment makes no mention that the applicant’s offending in the incidents in the restaurant and at the adult victim’s home on 27 June 2020 occurred in front of the adult victim’s young daughter and the adult victim’s daughter was again present but may not have directly witnessed the applicant’s offending behaviour on 11 July 2020.
The Tribunal accepts that the applicant has reflected on his circumstances during his eight months of imprisonment and also through undertaking a short anger management course whilst in immigration detention.
The Tribunal also accepts that the applicant has excellent community support through Ms Verma should his visa not be cancelled and has an offer of employment from a previous employer.
It is also a significant factor in the applicant’s favour in the Tribunal’s view that there is no intervention order in place naming the adult and child victims as protected persons and the applicant as the respondent.
The Tribunal also accepts that the applicant has made some effort to gain insight into his offending and accepts his evidence of being committed to undertaking further counselling as recommended by Ms Lechner to improve himself and to try and ensure he does not repeat his offending behaviour.
However, the Tribunal formed the view based on the applicant’s oral evidence and all of the information before the Tribunal that the applicant does not yet properly understand why he acted the way he did and is not genuinely remorseful toward his victims for the extreme violence he visited upon them.
The Tribunal formed these views in part because of Ms Lechner’s concerns about the applicant’s inability to explain to her why his actions towards the adult victim escalated in the manner they did. When the Tribunal asked the applicant about why he acted the way he did, his evidence to the Tribunal did not reveal he had any genuine insight into why his stated feelings of jealousy or anger escalated into such extreme violence on two separate occasions.
The applicant referred to his alcohol consumption and his feelings at the time and that he had learned he does not have the right to control the adult victim and that he had applied these lessons to his ongoing relationship with his wife. The applicant did reveal he is in the process of developing strategies to prevent a reoccurrence and the Tribunal formed the view the applicant is remorseful for the situation he has placed himself in and his family in and is genuinely grateful for his wife’s forgiveness and ongoing support.

The adult victim provided three written statements to the police and one of those statements refers to the applicant being drunk during the second incident on 11 July 2020. There is no independent information before the Tribunal that the applicant was affected by alcohol during the incidents that occurred on 27 June 2020. Even were the applicant affected by alcohol during both incidents, the Tribunal does not accept the level and sustained nature of the physical, emotional and psychological violence the applicant inflicted upon the adult victim and the child victim who witnessed the events of 27 June 2020, is explained by his consumption of alcohol. The applicant’s consumption of alcohol may have been a contributing factor to his actions on 11 July 2020 but it is not an explanation for those actions.
In the Tribunal’s view the applicant’s evidence indicated the applicant has an egocentric view of his offending by referring to it variously as a mistake, a small mistake and a first mistake and by using his consumption of alcohol, rather than as a contributing factor, as an explanation. This view was reinforced for the Tribunal when the applicant referred to his offending as giving the adult victim a “hard time”.
In the first incident the applicant had nearly two hours between the confrontation at the restaurant and assaulting the adult victim in her own home in front of her young daughter to calm down but was unable to explain to the Tribunal why he could not do so. The Tribunal notes that the applicant’s offending occurred six months after the relationship had ended and the two incidents which the applicant has been convicted of also occurred two weeks apart revealing to the Tribunal that the effluxion of time did not abate the applicant’s feelings of jealousy and anger or afford him any meaningful perspective on his short relationship with the adult victim that may have assisted him to better control his behaviour.
Of great concern to the Tribunal was the applicant’s lack of evident remorse toward his victims in his oral evidence to the Tribunal. Ms Lechner observed in this regard:
Mr. Bhangu admitted that his threats to distribute intimate images was an attempt to “scare her to stay with me” and that his threats to kill were an over-exaggeration – “in Punjabi it is a normal thing to say without meaning it … I now know that you can’t do that here”. He found it hard to explain his assault on the victim. He stated that he feels ashamed of his actions – “there is no-one worse than me in the world … it is my mistake, she was trying to save my family … it was my mistake to get attached to her”. He stated that the victim would have “cried … felt scared … maybe frightened for her life in her mind … I feel very sorry for her and embarrassed”.
…
He acknowledges that his actions were totally inappropriate and caused the victim immense fear. His term of incarceration had a most salutary impact on Mr. Bhangu with him now fully appreciating the wrongfulness of both his behaviour and attitude. He reports no future contact with the victim and currently presents as a “low” risk of further offending.
I do not accept the applicant’s view, given his plea of guilty to the charge of threatening to kill the adult victim on 27 June 2020, that he made that threat without meaning it and the associated assertion that in Punjabi that is a normal thing to say without meaning it, an assertion which is also reflected in his later comment that the adult victim may have been frightened for her life “in her mind” with the implication this was not his intention.
The applicant threatened to kill the adult victim on 27 June 2020 and again threatened to harm her and her daughter on 11 July 2020, on that occasion arming himself with a knife to reinforce the seriousness of this threat. This placed the already vulnerable adult victim in the potentially terrifying position of being forced to try to calm the applicant and de-escalate the situation to protect not only herself but also her very young daughter.
The emotional and psychological damage the applicant has potentially caused to his victims seems to be beyond the applicant’s understanding. The delegate set out some of these concerns in the primary decision, so the applicant should be aware of the potential consequences of his actions for his victims. The delegate wrote:
As per World Health Organization, domestic violence causes serious short- and long-term physical and psychological health problems to the victims such as depression, post-traumatic stress and other anxiety disorders, sleep difficulties, suicide attempts, and homicide. As per Victoria government, domestic violence is unacceptable and inexcusable act which has wider social and economic costs borne by the community. Domestic violence is regarded to be an unacceptable behavior in Australian society and contrary to Australian values.
The visa holder has allegedly demonstrated willingness to use physical, emotional and verbal abuse against the victim which has injured her and caused her distress and apprehension to make her fear for her and her daughter’s safety. The visa holder has also allegedly made numerous threats to kill or harm the victim. (sic) [footnotes omitted]
When the Tribunal asked the applicant what impact he thought his actions had on the adult victim the applicant did not reveal any genuine insight into these impacts or remorse for those impacts, other than generalised comments about giving her a hard time and knowing the problems he caused her. The applicant told the Tribunal his actions were bad but rather than reveal any insight into those impacts the applicant’s response to the Tribunal’s questioning was from an egocentric perspective of what the adult victim must think of him rather than a remorseful perspective of what harm he has caused to the adult victim. The applicant did not mention the “immense fear” or any other impact on the adult victim his actions towards her must have caused the adult victim as Ms Lechner documented he acknowledged in her report. The applicant expressed his remorse and at times shame for his behaviour towards his victims throughout the hearing but again this was expressed in general terms each time, often referencing his “mistake” and that in general terms he had learned from it and would not make such a mistake again.
Similarly, when the Tribunal asked the applicant what impact he thought his actions had on the child victim his answer was from a similar perspective:
Whatever the child saw might make a difference to her mental state and she could go into depression and it should not have happened. (emphasis added)
The Tribunal’s concern about the applicant’s evidence is heightened because, based on information the applicant provided to the Tribunal, he is the father of two children who were 12 and seven years of age at the time of his offending. Being the father of two children, one of whom is only three years older than the child victim of his offending, the Tribunal reasonably expected the applicant to have some insight into the impact his behaviour may have had on the child victim and also on the adult victim who at times was trying to protect her vulnerable child from the applicant’s behaviour.
In the Tribunal’s view for the applicant to demonstrate or reveal his genuine remorse towards his child victim for his offending he should have been able to describe, at least in broad terms, his understanding of what the child may have felt or experienced at that time and then express an unqualified apology or remorse for that behaviour and its probable impacts on the child. This is not a prescriptive formula and the Tribunal was not expecting a formulaic set of words or the use of specific words such as “sorry”. There are many different ways for a person to demonstrate their genuine remorse for harm they have caused another.
What the Tribunal expects of someone who is genuinely remorseful toward their victims is for them to be able to articulate in some meaningful form an insight into the impacts of their behaviour from their victims’ perspectives. Once an offender has an understanding of the actual or probable impact of their behaviour on their victims then expressions of being sorry for or remorseful toward those victims for that behaviour and its impacts has a context that informs such expressions with an authenticity that in turn enables the Tribunal to accept such expressions of remorse or being sorry as genuine.
In the Tribunal’s view, such insight and authenticity was lacking from the applicant’s evidence. The Tribunal is in no doubt that the applicant is sorry for what has occurred, including sorry for his family and sorry for himself. However, the applicant’s expressions of remorse for and being sorry to his victims did not appear on the evidence before the Tribunal to be informed by a genuine understanding of what impact his behaviour had at the time of his offending and may be continuing to have on his victims and the applicant then being remorseful for those impacts.
These findings cause the Tribunal concern that the applicant remains a risk, even if a low risk, to the health or safety of his victims.

100. The existence of such a risk is sufficient to meet the threshold in s.116(1)(e)(ii), which is set at the very low level of there being a risk or the possibility of a risk. The setting of the threshold at such a low level reflects the intent of s.116(1)(e)(ii) that a visa can be cancelled where it is assessed as a matter of administrative law – not criminal law – that the visa holder is or may be a risk to the health or safety of another person.
101. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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
102. 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, formerly part of the Department’s Procedures Advice Manual, titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.
The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia
103. The applicant told the Tribunal he wishes to complete his studies in Australia. The applicant told the Tribunal he worked as a mechanic in India and came to Australia to gain formal qualifications that would improve his employment prospects and likely remuneration in India.
104. There were some inconsistencies in the written submissions and in the applicant’s oral evidence about what study he has already completed and would like to complete in Australia. Based on the applicant’s oral evidence and information in the primary decision the Tribunal accepts that the applicant has completed a Certificate III and IV in English Language, a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. At the time his visa was cancelled the applicant was studying a Diploma of Automotive Technology and told the Tribunal he had approximately one month of study left to complete that course.
105. The applicant told the Tribunal he would like to complete the Diploma and then an Advanced Diploma in Automotive before returning to India to be with his family. The applicant told the Tribunal if he completes his intended study he will have a bright future in India and will be able to work for any of the large automotive companies and earn higher pay rather than just working as a mechanic at the dealership level. The applicant also told the Tribunal if he cannot complete his intended study then his parents and own family will consider his time in Australia a waste and he will not be able to earn the higher income needed to support his own family and also his parents in their retirement.
106. The Tribunal accepts that the applicant wishes to complete his studies in Australia. However, a Student visa is a temporary visa and the completion of study in the applicant’s circumstances does not provide a compelling need for the applicant to remain in Australia.
107. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
The extent of the applicant’s compliance with their visa conditions
108. There is no information before the Tribunal that the applicant has not complied with the conditions attached to his Temporary Activity (Entertainment) visa or his Student visa, both of which have a standard suite of conditions attached to them.
109. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members
110. The applicant expressed his concerned about the emotional and psychological impact the cancellation of his visa could have on him and his family because he is concerned his birth family and marriage family will say he has been deported from Australia because of the mistakes he made, which the applicant is concerned could lead him to suffering depression.
111. The applicant is also concerned about the effect cancellation of his visa will have on his career. The applicant feels if he cannot obtain the Australian qualifications he seeks then he will not have career growth options in India and at his age will not be able to get a better job and will have to work for a salary that is below his expectations.
112. The applicant told the Tribunal this will affect his ability to provide for his marriage family as a result of which his two children will suffer.
113. The applicant also told the Tribunal he is responsible in his birth family for looking after his parents financially in their old age and he will not be able to do that if his visa is cancelled which will affect him mentally and his parents financially and mentally. The applicant told the Tribunal that his parents sent him to Australia to make his life better and it will cause his parents great anguish if he is unable to achieve this.
114. The Tribunal accepts that in the applicant’s circumstances the cancellation of his visa will cause the applicant, his marriage family and his parents considerable emotional hardship and also potentially financial hardship as the applicant is unable to earn the higher wage he expected to earn if he completed his intended studies in Australia.
115. The applicant’s representative also submitted that the presence of the COVID-19 global pandemic and particularly the pandemic situation in India adds to the hardship cancellation of the applicant’s visa would cause. The applicant’s representative said the applicant may not be able to leave Australia under current travel restrictions and the risk of being infected by COVID-19 whilst held in immigration detention adds to the hardship that detention causes the applicant and the worry it causes his family. The representative also submitted the applicant is suffering additional hardship in immigration detention because he cannot be visited by his family and sharing a room in detention with other detainees means he cannot even talk to his family in private. Finally in this regard, the applicant’s representative submitted this would cause significant but unnecessary cost to the Australian community given the community support and work available for the applicant if his visa is not cancelled.
116. The Tribunal accepts these submissions, apart from the submission about the costs of immigration detention being unnecessary.
117. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.
The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.
118. The circumstances that led to the ground for the cancellation of the applicant’s visa arising are set out in detail in paragraphs 57 to 98 of these reasons.
119. The punishment of the applicant is not the purpose of nor relevant to this consideration. The applicant pleaded guilty to six of 11 offences he was charged with, pleaded at an early opportunity meaning his adult victim was not required to give evidence and has been sentenced through the criminal justice system of Victoria for that offending and has now completed that sentence.
120. What the Tribunal is assessing in this consideration is whether there were any extenuating circumstances that were beyond the applicant’s control that led to the ground for cancellation existing. On the evidence and information before the Tribunal, there were not. The applicant does not claim there were extenuating circumstances and has accepted responsibility for his offending in the criminal justice system and in his oral evidence to the Tribunal.
121. The applicant’s offending included crimes of significant personal violence against a vulnerable victim that caused her to fear for her and her daughters safety and indeed lives and some of that offending occurred in circumstances where a young child was traumatised by what she observed the applicant doing to her mother.
122. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight
The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)
123. The applicant responded to the Department’s notice of intention to consider cancellation of his visa and otherwise participated in the process that led to the cancellation of his visa. There is no information before the Tribunal that the applicant has behaved other than in a co-operative manner towards the Department. The applicant indicated to the Tribunal he should be given one last chance to complete his studies in Australia.
124. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act
125. There is no-one dependent on the applicant’s visa and the cancellation of his visa would not cause the consequential cancellation of any other visa.
126. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
127. The Tribunal explained to the applicant the mandatory legal consequences that would flow from the cancellation of his visa including by reading the following extract from the delegate’s primary decision:
I have considered that if the visa is cancelled, upon his release from criminal remand, the visa holder may be detained under section 189 and removed from Australia under section 198 of the Migration Act as he would no longer hold a valid visa.

Additionally, the visa holder will be subject to section 48 of the Migration Act that may prevent him from applying for certain further visas while in Australia. The visa holder may also be affected by Public Interest Criterion 4013 limiting the grant of a further temporary visa for a specified period. I give this consideration a little weight against cancelling the visa.

128. The applicant indicated he understood these consequences and commented that if his visa is not cancelled his life will be good and settled.
129. The applicant’s representative did not submit and the applicant did not express concern about the possibility of being indefinitely detained in immigration detention. However, the applicant’s representative did express concern that the applicant could be held in immigration detention for an extended period of time due to the restrictions on international travel introduced by both Australia and India in response to the COVID-19 global pandemic.
130. The Tribunal accepts the submission of the applicant’s representative in this regard and in addition to considering this submission as part of this consideration has also given additional weight to the consideration of the hardship that cancellation of his visa would cause the applicant. The Tribunal finds that there is no claim before it or information to support a claim that the applicant could be indefinitely detained.
131. The Tribunal finds in the applicant’s circumstances of having completed his sentence of imprisonment and potentially facing a longer than usual period of detainment if his visa is cancelled due to the ongoing impacts of the COVID-19 global pandemic that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation
132. The applicant does not have any children in Australia and does not claim that Australia owes him any statutory or international law obligations of protection.
133. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia
134. The applicant’s Student visa is a temporary visa.
135. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Any other relevant matter
136. The applicant’s representative provided extensive oral submissions during and particularly at the end of the Tribunal hearing. These submissions were of assistance to the Tribunal and have been considered by the Tribunal in these reasons for decision.
137. Throughout the hearing the applicant expressed his regret and apologised for his behaviour that led to the cancellation of his visa and this evidence has been considered by the Tribunal in these reasons for decision.
Conclusion
138. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
139. The Tribunal finds that the considerations that weigh in support of the cancellation of the applicant’s visa, namely his lack of compelling reason to remain in Australia and the circumstances that led to the ground of cancellation arising, outweigh the considerations that weigh against the cancellation of his visa.
DECISION
140. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Michael Ison
Senior Member

[2021] AATA 2828

27 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice