Bhatt (Migration)

[2022] AATA 4262

Bhatt (Migration) [2022] AATA 4262 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maheshwar Prasad Bhatt

REPRESENTATIVE:  Mr Dhruba Dahal (MARN: 1383851)

CASE NUMBER:  2208477

HOME AFFAIRS REFERENCE(S):          BCC2022/1595085

MEMBER:David McCulloch

DATE:3 November 2022

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 03 November 2022 at 8:08am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – criminal convictions – Domestic Violence – applicant’s remorse for the violent behaviour – significant hardship to the applicant’s wife – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 9 June 2022 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). The applicant was a dependent Subclass 500 visa holder of which his wife, Ms Sapana Joshi, is the primary holder.

2. The applicant is a citizen of Nepal born in 1992. The visa that was cancelled was granted on 16 February 2022, expiring on 15 March 2024.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 30 May 2022. The applicant provided a response to the NOICC on 3 June 2022.

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 14 October 2022 at 9:30am to give evidence and present arguments. The applicant’s wife, Sapana Joshi, appeared as a witness for the applicant in the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. The applicant was represented in relation to the review. The representative did not attend 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 r 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r 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 file indicates that, according to a report provided by the NSW Police, the applicant pled guilty to and has been convicted of the following criminal offences on 21 April 2022 at Burwood Local Court: seq 1 assault occasioning bodily harm (domestic violence), seq 2 attempt stalk/intimidate intend fear of harm (domestic), seq 3 contravene prohibition/restriction in AVO (domestic). For sequences 1 and 2, the applicant was sentenced to 12 months and 6 months terms of imprisonment to be served concurrently from 21 April 2022 to 20 April 2023 by way of intensive correction in the community. For sequence 3, the applicant was ordered to pay a fine in the amount of $500.

11. In the hearing, the applicant acknowledged the y and relevant penalties.

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 in Australia 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 New South Wales Police Facts Sheet outlines the alleged facts of the crime to which the applicant pled guilty.

15. At around 9:15pm on 18 April 2022, the applicant arrived home visibly intoxicated. After a brief conversation regarding food, the applicant became angry and yelled at his wife. While in bed, he ‘became physically aggressive and with full force, using closed fists began punching’ his wife ‘in her face, head and back area repeatedly using both hands while his wife was lying on the mattress’. He continued punching his wife, causing her to defend herself by scratching his arms. His wife was pleading with him to stop. He stopped punching her and left the bedroom. A short time later, he returned and proceeded to punch her in the face. His wife again tried to defend herself. ‘The entire altercation occurred for approximately 30 minutes’ with the applicant ‘going back and forth from the bedroom and the kitchen’. His wife’s face was swollen, bruised and lacerated.

16. On the Department file there are documents that indicate that police applied for an Apprehended Domestic Violence Order (ADVO) which was finalised on 21 April 2022. Conditions 1, 2 and 7 were imposed.

17. Documents on the file indicate that on 24 May 2022, the applicant’s wife made an application to vary the ADVO. She sought to have conditions 2 and 7 removed. Condition 2 prohibits the applicant from contacting his wife unless through a lawyer. Condition 7 prohibits the applicant from living at the same address as his wife.

18. On 23 June 2022, Burwood Local Court varied the ADVO. Condition 2 was removed but condition 7 remains in place. The Court added condition 4 to the ADVO which prohibits the applicant from approaching or being in the company of his wife for at least 12 hours after drinking alcohol or taking illicit drugs. The ADVO is in force for 2 years until 21 April 2024.

19. The applicant provided a Statutory Declaration responding to the NOICC which provided as follows (not corrected spelling and grammar):

    1.       I came to Australia as a holder of student visa as a dependent of my wife Sapana Joshi to study Master of Professional accounting at Central Queensland University (CQU), Sydney Campus. We both arrived in Australia together on 4 March 2022.

    2.       Wife started her studies at CQU from 7 March 2022. She is currently studying her first semester and the exam is scheduled to commence from 3 June 2022.

    3.       After we came to Australia, we both have been living together happily. We did not have any relationship issues between us. We both were working and were happy about our circumstances.

    4.       On 1 8 April 2022 in was in the mood to celebrate Nepalese New Year which fall on 14 April. I started to drink wine after I came from work while my wife was still at work. After my wife finished her work and gave me a call from the train station to pick her up as it was already 9:00 PM at night. I went to the train station to pick her up and she notices that I was drinking. She asked me if I was drinking. I told her that I was drinking and finished the whole bottle.

    5.       She was a bit upset to see me drunk. Her concern was that why I was drinking wine since the daytime. As I drank the whole bottle of wine, I was a bit tipsy and seeing me in such condition she became upset and pinched me several times in anger.

    6.       The pinch was painful, and, in the pain, I punched her. My intentions were only to stop her from pinching me, but I unknowingly hurt her. My hand landed on her right eye leaving a black punch mark. I am remorseful of my action, but my intension was not to hurt her. I just wanted to stop her pinching me.

    7.       After the incident police arrested me a took me to the local police station at Burwood. I was instructed by the police not to contact my wife.

    8.       I say that I had no place to go and no one to help me in this difficult situation. I had not enough money in my pocket to find an accommodation immediately. I told the police that all my belongings are at the unit and requested them that if I could get my belongings.

    9.       The police spoke to my wife and asked her to give my belongings to me. She collected all my stuff in a bag and place outside of the unit. It was already evening, and it was difficult for me to find an accommodation. I went to nearby Canterbury Hotel if there were any rooms available. I was told that all the rooms were booked out. As I had nowhere to go, I went back to the same black of unit and sept on the corridor of ground floor. We had the rental unit on seventh floor.

    10.      While I was sleeping on the corridor police came to me and took me into their custody. They told me that I breached the condition of Apprehended domestic violence. I would like to state my intention was snot to breach the condition of AVO. As I had nowhere to go, I wasn't to the same block of unit just to sleep for the night. I did not try to contact with my wife.

    l l . I was place in the custody until the court date on 21 April 2022. I was found guilty of Domestic Violence and sentenced to 12 months imprisonment to be served by the way of intensive corrections in the community. I was also convicted and sentenced for six months to be served in the community. I was fined a sum of $500 for the breach of AVO.

    12.      I would like to say that I am remorseful of the events, but it was not my intentions. I had a bed temper in the past, but I am managing my temper immediately after the marraige. I never had any issues with my relationship in the past. We have a child from our relationship who is currently residing overseas with his grandparents.

    13.      Furthermore, to manage the anger I have attended anger management course on 16 May 2022. I am also planning to attend Alcohol management course in near future.

    14.      I am behaving properly as per the order by the court in the community. Immediately after the court order I was contacted by the community officer and was asked to complete an application for the community rehabilitation assessment. After I completed the form, I was told that the community officer will be in contact for further assessment. I am still waiting for the community offer to contact me.

    15.      I say that I have already paid the fine and other related cost which the court asked me to pay. There are no outstanding fines.    

    16.      I say that I am a law-abiding citizen. I respect law of the country and never intend to breach the law. It was never my intention to breach the law. I am sure that my wife is also aware of the circumstances and must be surprised that how the situation turned into completely different direction. She is the witness that I never had any relationship issues with my wife and must be aware that I would never hurt her.

    17.      However, I again say that I am remorseful of the consequences and state that that was not my intension.

20. The applicant provided an additional Statutory Declaration to the Tribunal stated 7 September 2022:

    1.       I say that I am remorseful of the event occurred on 18 April 2022.

    2.       I am a social drinker. As I stated in my previous declaration, I was in the mood to celebrate Nepalese New year and drank alcohol when I was alone at home. I was not sure about my alcohol limit and later I realised that I drank beyond my limit.

    3.       My wife was a bit upset with me because of drinking alcohol. We started to argue and during the argument she pinched me in my arm. I tried to stop her by waiving my hand. Unfortunately, she was hurt by me during the argument.

    4.       I pled guilty of Domestic Violence and sentenced to 12 months imprisonment to be served by the way of intensive corrections in the community. I was convicted by the court and sentenced for six months to be served in the community. I was fined a sum of $500 for the breach of AVO.

    5.       Since after that incident I have attended anger management: Understanding Anger course on 16 May 2022, which is 25 hours course. I have also attended drug and alcohol counselling course on two different dates which are 1 July and 29 July 2022.

    6.       I would like to say that I am remorseful of the events, but it was not my intentions. I had a bed temper in the past, but I am managing my temper immediately after the marriage. I never had any issues with my relationship in the past. We have a child from our relationship who is currently residing overseas with his grandparents.

    7.       I am behaving properly as per the order by the court in the community. Immediately after the court order I was contacted by the community officer and was asked to complete an application for the community rehabilitation assessment. After I completed the form, I was told that the community officer will be in contact me for further assessment. I am still waiting for the community offer to contact me.

    8.       I say that I have already paid the fine and other related cost which the court asked me to pay. There are no outstanding fines.

    9.       I would further like to say that my wife lodged an application on 24 May 2022 at the local court to vary the original decision. The Burwood Local Court on 23 June 2022 decided to vary the original order according to which we can see each other. Following the court order, we are now seeing each other. My wife does not have any fear to see me.

    10.      My wife also told me that she will again lodge an application to the Burwood local court requesting to allow us to live together as my wife does not have any fear with me. She also understands that the incident that happened on 18 April 2022 was not intended by me and that was a genuine mistake. She knows that I can never harm her.

    11.      I again say that I am remorseful of the consequences and state that that was not my intension.

21. The applicant’s wife. Ms Sapana Joshi, provided a Statutory Declaration to the Tribunal dated 29 June 2022:

    1.       I say that I am wife of Maheshwar Prad Bhatta. I came to Australia together with my husband as a holder of student visa. My husband entered Australia as a holder of student dependent visa.

    2.       I say that my husband was involved in a domestic violence on 18 April 2022. On that evening my husband was drinking wine and I was bit upset by his drinking.

    3.       While having discussions about drinking, I was hurt by my husband. I confirm that it was not his intentions to hurt me but somehow, I was hurt. His hand landed on my right eye leaving a black mark.

    4.       This incident is the only incident in my whole married life. We have been married since last six years. We have a child from our relationship who is now four years.

    5.       The incident that happened is a one-time incident which happened unknowingly. I had never witnessed such behaviour from my husband in the past.

    6.       I lodge an application to the Burwood Local Court a to vary or revoke the original decision made by the court on 21 April 2022.

    7.       I appeared before the court on 23 June 2022 where the court made a decision to vary the original decision by allowing me to meet my husband.

    8.       I am now seeing my husband outside of our residence. My husband is remorseful of the incident. He is also following orders made by the court and attending Alcohol Counselling sessions.

    9.       I have no fear of my husband and have no problem to live together if the court makes such order.

    10.      I say that we both are facing great difficulties as we have to live separately.

    11.      I request the department to grant a bridging visa to my husband allowing to live in Australia until completion of my studies.

22. Provided on the applicant’s behalf by his migration agent was a submission dated 2 October 2022. Relevant contents of the submission are set out further below. The submission attaches various documents including the following:

    ·ADVO Final Order made on 21 April 2022, imposing conditions 1, 2 and 7.

    ·Application to vary or revoke apprehended violence order, filed on 24 May 2022, seeking to remove conditions 2 and 7.

    ·Order varying ADVO made on 23 June 2022, removing condition 2 but adding condition 4.

    ·Notice of listing from Burwood Local Court dated 21 September 2022. A matter to vary/revoke AVO is listed on 27 October 2022.

    ·Certificate of completion for Anger Management: Understanding Anger dated 16 May 2022. The course duration was 25 hours.

    ·Letter from Teguh Syahbahar, Rehabilitation Counsellor/AOD Clinician at Hayat House, dated 29 July 2022. The letter confirmed that the applicant engaged in Hayat House AOD counselling service and commenced drug and alcohol treatment on 6 June, attended follow up appointments on 1 July 2022 and 29 July 2022. The applicant has engaged well and is recommended to continue in the counselling.

    ·Letter from Hansen Li, Psychologist, dated 16 September 2022, with self-reporting content. The psychologist noted that there were no issues with the applicant’s mental health.

    ·Letter from Susan Vickery, General Manager at Bupa Seaforth, dated 19 September 2022, confirming that the applicant worked there from 14 March 2022 until 18 April 2022 as a casual cleaner. He could not continue his employment with Bupa because his wife was also employed there, so he was referred to Bupa Clemton.

    ·SMS reminder of an appointment with Teguh on 6 June.

    ·Proof of the applicant donating blood on 19 July 2022.

23. In the hearing the Tribunal put the applicant pursuant to the procedural requirements of s.359AA of the Act the factual allegations contained in the Police Facts Sheet. The Tribunal indicated that the information is relevant because it indicates not insignificantly violent physically violent harm perpetrated against his wife. The consequence of relying on this information could be to determine that the applicant has acted in a way to remove his entitlement to be in Australia with the privilege of holding a Student visa.

1. The Tribunal indicated that it would consider the applicant’s various written statements and written submissions and documents provided on his behalf. The applicant had the option to make any further information orally in the hearing or alternatively in writing. The Tribunal indicated that it would go through his claimed mitigating and extenuating circumstances and remedial actions and give him the opportunity to provide further comments orally or in writing.

2. In terms of extenuating circumstances beyond the applicant’s control explaining the circumstances, the Tribunal noted to the applicant that his written statements and the submissions indicate that he was drunk when he assaulted his wife and that the behaviour was one-off and uncharacteristic. The Tribunal asked the applicant if he wanted to make any other comments in terms of extenuating circumstances. The applicant in response in the hearing reiterated the previously claimed extenuating factors including that this was an event that happened before he was drunk and was one-off.

3. The Tribunal noted to the applicant that it has been claimed that he is very remorseful and that remedial action has been undertaken. Information has been provided that the applicant has undertaken an anger management course and attended alcohol and drug counselling sessions. The applicant has also been in contact with a registered psychologist to modify his behaviour so it is not engaged in such future activity. It is indicated that the applicant is a first-time offender and pleaded guilty to the charges. The applicant also stopped working his prior workplace because his wife was also employed there. The applicant’s wife has indicated that this is a one-off event. The applicant was asked if he wanted to make further oral or written comments in terms of his remorse and remedial activity. In response the applicant reiterated his efforts to reform including that he is much more cognisant of Australian legal requirements and wants to obey the law. The applicant referred to being a blood donor.

4. The Tribunal accepts the remorse and remedial actions taken by the applicant and this is taken into account in his favour against exercising the discretion to cancel the visa.

5. As indicated, the applicant’s wife gave evidence in hearing. This evidence was taken with the applicant being out of the hearing room. Ms Joshi confirmed that she firmly wants to remain in a relationship with her husband and for the ADVO condition that they not live together to be removed. She indicated that the assault was a one-off event and had never previously occurred during the six years of marriage.

6. Ms Joshi indicated that in March 2022 she began studying in Australia a Masters of Professional Accounting which is due to end in the first half of 2024. The Tribunal asked Ms Joshi about her future intentions when she finishes this course. From the responses, her evidence was that there is an intention to return to Nepal and further a career in accounting, including to be with her five-year-old child who continues to reside in Nepal. However, Ms Joshi indicated that there is the possibility that there will be an exploration of career opportunities in Australia after the study has been completed in which case moves would be made to bring her child to Australia.

7. The Tribunal explored with Ms Joshi what she would do if the applicant’s visa is cancelled and she has to return to Nepal. There was vacillation by Ms Joshi in response but ultimately she indicated that she would feel compelled to return to Nepal with the applicant. The applicant confirmed in his later evidence that he and his wife had discussed what would happen if his visa remains cancelled and confirmed that they would both return to Nepal.

8. Submissions are made in writing by the applicant’s representative that the cancellation of the visa would be a threat to family unity and contrary to the best interests of the applicant’s child because of the intention to bring the child to Australia. This would be on the basis of the applicant and his wife being split up contrary to their intentions and the child coming to Australia in the absence of the child’s father, the applicant.

9. The evidence of both the applicant and his wife does not substantiate these contentions because, on the evidence of both of them, they would both return to Nepal if the applicant’s visa remains cancelled.

10. Both the applicant and Ms Joshi indicated in the hearing that their dreams would be shattered in terms of Ms Joshi not continuing her studies in Australia if the applicant’s visa remains cancelled. Their plans to come to Australia and for Ms Joshi’s study have been long-standing including delayed because of COVID-19.  There would be negative views by family and others in Nepal if they return home without fulfilling their intentions in Australia. Reference was made to student loans that need to be repaid.

11. Ms Joshi provided evidence of her passing the first four units in her Masters of Professional Accounting.

12. After the hearing, at the Tribunal’s request, evidence was provided of an order of the New South Wales Local Court removing the condition on the ADVO that the applicant and Ms Joshi do not live together.

13. Considering all of the evidence, the Tribunal is persuaded that Ms Joshi is genuine in her desire for reconciliation with her husband and for them to continue to live together in Australia. This is being sought to be facilitated by the application seeking the removal of the condition in the ADVO that they do not live together, which has now happened.

14. Given the evidence of both the applicant and Ms Joshi, the Tribunal considers that if the applicant’s visa remains cancelled they will both return together to Nepal with Ms Joshi not continuing with her Masters of Professional Accounting in Australia.  The Tribunal accepts that to date that Ms Joshi is making good progress in this course.

15. The Tribunal considers that this would be a considerable hardship that would be faced by Ms Joshi.  If the applicant’s visa were to remain cancelled, the victim of the applicant’s assault would suffer further considerable hardship as a result of  her intended study course in Australia not being able to be proceeded with. This would entail a loss of the hopes of Ms Joshi in term of her intentions in Australia.  It would constitute a waste of time and not insignificant expense for travel to and study in Australia.

16. In the Tribunal’s view there would need to be very significant countervailing discretionary factors that would overcome the violent behaviour of the applicant towards his wife leading to the convictions. Without the hardship to the applicant’s wife, the Tribunal would be very unlikely to be persuaded that there were extenuating factors leading to the convictions and/or the remedial actions taken by him or any other claimed factors that would overcome the circumstances leading to the convictions such that the visa should not be cancelled.

17. However, in this case the Tribunal considers what it accepts would be the significant hardship to the applicant’s wife and the Tribunal’s belief that she genuinely wants to remain with her husband tips the balance in the Tribunal not exercising its discretion to cancel the visa. The Tribunal considers that it would indeed be a very significant disruption to the plans, hopes and expenses of Ms Joshi in coming to Australia to study if the applicant’s visa was to remain cancelled and she returned prematurely to Nepal with her husband before completing her intended course of study. Although not determinative, reinforcing a decision not to cancel the applicant’s visa is what the Tribunal accepts is the applicant’s remorse for the violent behaviour and that it was a one-off, as corroborated by the applicant’s wife, and the not insignificant remedial action taken by the applicant.

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

    decision

19. 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