Bista (Migration) - [2023] AATA 3042

Bista (Migration) [2023] AATA 3042 (14 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pramod Bista
Miss Sabina Nepal
REPRESENTATIVE:  Mr Komal Khatiwada (MARN: 0853554)
CASE NUMBER:  2303000
HOME AFFAIRS REFERENCE(S):          BCC2022/1096301
MEMBER:David McCulloch
DATE:14 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 14 September 2023 at 10:10am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of an offence – family bereavement – sentence completed – solid academic progress – plans for a business in Nepal – numerous character and work references – impact on applicant’s wife – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140, 348, 359
Migration Regulations 1994, r 2.43
CASES
Rani & Ors v MIMA (1997) 80 FCR 379
Tien & Ors v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 27 February 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Nepal born in 1997. The visa that was cancelled was granted on 14 January 2022, with a stay period to 29 March 2023.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 3 February 2023. The applicant provided a response to the NOICC on 9 February 2023.
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 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.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the second named applicant.
The first named applicant (‘the applicant’) appeared before the Tribunal on 7 September 2023 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bista (Migration)

Details

AGLC: Bista (Migration) [2023] AATA 3042
Case: [2023] AATA 3042
Decision Date: 14 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Subclass 500 (Student) visa held by the applicant. The Minister had initiated the cancellation process under section 116 of the Migration Act 1958 (Cth) following the applicant's conviction for offences including assault and resisting police. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel the applicant's visa was justified. This involved determining if a prescribed ground for cancellation existed, and if so, whether the discretion to cancel the visa should be exercised in the applicant's circumstances. The Tribunal was required to consider all relevant factors, including those outlined in the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal found that the applicant had been convicted of offences and sentenced to a conditional release order, which satisfied the ground for cancellation under regulation 2.43(1)(oa) of the Migration Regulations 1994. However, the Tribunal then exercised its discretion not to cancel the visa. In reaching this conclusion, the Tribunal had regard to the applicant's remorse, his completion of the sentence, his solid academic progress, his plans for a business in Nepal, and numerous character and work references. The Tribunal also considered the potential hardship to the applicant and his wife if the visa were cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 500 (Student) visa. The Tribunal noted it had no jurisdiction concerning a second applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)). The delegate’s decision record and documents on the Department file indicate that the applicant was convicted of the criminal charges of ‘Assault police officer in execution of duty w/o abh-T2’, ‘Resist or hinder police officer in the execution of duty’ and ‘Assault occasioning actual bodily harm-T2’ on 30 March 2022 at Downing Centre, Local Court. The applicant was fined $1,000 in total for the offences and was sentenced to a 9-month conditional release order commencing on 30 March 2022, concluding on 29 December 2022. In the hearing, the applicant acknowledged the convictions and sentence. 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 There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the second named applicant.David McCullochMember

Ratio Decidendi

Legal Principle Established

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 There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters. The following is a summary of the New South Wales Police Facts Sheet, which outlines the charges against the applicant. On 23 March 2023 the applicant was drinking at a venue in the Sydney CBD. The applicant left the venue and was walking on the street when he saw a patron he had seen earlier in the evening at the venue, ran up to the patron and hit him with a closed fist to the back of his head, causing the victim to fall to the ground. Police then observed the applicant and the victim having a physical altercation, and observed the applicant punch the victim on his cheek. Police approached the scene and attempted to grab hold of the applicant. The applicant resisted police by pushing his chest against the officer, causing the officer harm to his chest and arm. The applicant ran from police, however, he was shortly arrested and transported to Day Street Police Station. In his response to the NOICC dated 3 February 2023, the applicant provided to the Department the following response dated 9 February 2023 (not corrected for spelling or grammar, headings omitted):Currently, I am studying Certificate IV of Commercial Cookery and Diploma of Hospitality Management at Queensford College, Parramatta, NSW and I will be completing my course in 3 months’ time. I am doing good on my studies and acquiring knowledge and skills that prepares me to have an outstanding career in hospitality industry. The completion of course is very important for me as it gives me the opportunity to have a career as a Chef and advance my future. I have a plan to run my own restaurant in Nepal and have spoken to my wife and parents about it and they are excited. My parents and my wife have a great expectation on me and if my student visa is to be cancelled, my dreams will be shattered, I will be emotionally and equally, psychologically traumatized and I will become a looser. Therefore, my education and work experience in Australia is my biggest asset and successfully completing my studies will be return on investment that my parents are making for my education.Further, I have paid the price for the offences that I have committed. And in my 9 months Conditional Release Order decided by Downing Centre Local Court on 30/03/2022 commencing from 30/03/2022 and has concluded on 29/12/2022. During the time, I have no character issues and, in my workplace I am appreciated by my coworkers for my hard work and team player attitude. Therefore, I believe the ground for visa cancellation does not exist and I am not a threat to Australian community and security. I have also attached my Criminal Police Check, Character Reference Letter from Work, Character Reference from College, Character Reference from my Cricket Club for your reference.Similarly, in my studies and with my classmates and teachers I have earned a good reputation for being a good student who does his assignments and classwork on times and performing well doing practical kitchen session where we have to prepare dishes that our trainer has taught us. My classmates look upon me if they are struggling in understanding their assignment and coursework.To conclude, I am remorseful what I have done on the past and I am a better person now, whose soul intention to remain in Australia is for study purpose and I shall not get involved in any such behavior which undermines the Australian values and law.