Chauhan (Migration)

Chauhan (Migration) [2022] AATA 1689 (14 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anmol Chauhan
REPRESENTATIVE:  Mr Andre Congiu, lawyer, My Australian Visa
CASE NUMBER:  1932796
HOME AFFAIRS REFERENCE(S):          BCC2019/3975581
MEMBER:Michael Ison
DATE:14 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 February 2022 at 11:18am
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – criminal convictions and community corrections order – discretion to cancel visa – ground for cancellation conceded – guilty plea to achieve sentencing outcome and little insight into offending – implausible explanations – course completed and no information about further study provided – emotional hardship to applicant, parents and fiancée – little information about new relationship provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359(2), 359A, 359B(2), 359C(1)(b), (2)(b), 360(1), 363A
Migration Regulations 1994 (Cth), rr 2.43(1)(oa), 4.17
CASE
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 November 2019 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 Anmol Chauhan, who is a 24-year-old Indian national. Mr Chauhan is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia on 21 June 2018 as the holder of a Student (Subclass 500) visa.
On 17 October 2019 the applicant was served with a Notice of Intention to Consider Cancellation of a visa (NOICC) under Section 116(1)(g) of the Act from the Department of Home Affairs (the Department). The Tribunal is satisfied the NOICC complied with the requirements of s.119 of the Act.
The applicant responded to the NOICC on 29 October 2019.
On 7 November 2019 the applicant’s Student visa was cancelled under s.116(1)(g) of the Act and r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations).
On 20 November 2019 the applicant was granted a Bridging E (Subclass 050) visa that was valid to 27 November 2019 with visa conditions 8101 (No Work), 8207 (No Study), 8401 (Report As Directed), 8506 (Notify New Address) and 8564 (Must Not Engage In Criminal Conduct) from Schedule 8 of the Regulations attached.
On 3 December 2019 the applicant was granted a second Bridging E (Subclass 050) visa which has conditions 8104 (Work Limitation), 8207 (No Study), 8506 (Notify New Address) and 8564 (Must Not Engage In Criminal Conduct) attached. The applicant continues to hold that Bridging E visa at the time of this decision.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa under s.116 (1)(g) and r.2.43(1)(oa) on the basis that there was a ground for cancellation because the delegate found the applicant had been convicted in the Ringwood Magistrates’ Court on 3 October 2019 of seven criminal offences. The delegate then considered the applicant’s circumstances and found overall the discretionary considerations weighed in favour of, rather than against, cancellation of the applicant’s visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.
Summons to Victoria Police
On 18 March 2021 the Tribunal issues a summons to Victoria Police, seeking further information and specific documents about the applicant’s criminal history in Victoria. The summons was returnable on 8 April 2021. An edited copy of the summons is attached to these reasons as Attachment One.
On 29 March 2021, 31 March 2021 and 6 April 2021, Victoria Police provided a comprehensive response to the Tribunal’s summons. This response and its promptness was of considerable assistance to the Tribunal in the conduct of this review.
Combined ss.359A and 359(2) invitation
The Tribunal wrote to the applicant on 22 November 2021 in accordance with the procedures set out in ss.359A and 359(2) of the Act. The Tribunal’s letter disclosed the information provided to the Tribunal by Victoria Police and sought the applicant’s comment upon or response to that information in accordance with s.359A of the Act. The Tribunal’s letter also contained a request for five items of information in accordance with s.359(2) of the Act. The Tribunal’s letter is set out in full in Attachment Two to these reasons for decision.
The Tribunal’s letter specified, in accordance with s.359B(2) of the Act and r.4.17, that a response was due by 6 December 2021, unless the applicant sought and was granted an extension of time to respond.
On 6 December 2021 the Tribunal received correspondence from the applicant’s lawyer which included:
·A form formally appointing Mr Andre Congiu, who is an Australian legal practitioner, of My Australian Visa as the applicant’s representative. Mr Congiu is referred to in these reasons as the applicant’s representative or the representative; and
·A request from the representative seeking an extension of time for the applicant to respond to the Tribunal’s letter dated 22 November 2021.
On 6 December 2021 the Tribunal wrote to the applicant via his representative informing him that the Tribunal granted the requested extension and his response to the Tribunal’s letter dated 22 November 2021 was now due by 20 December 2021.
The Tribunal’s letter dated 20 December 2021 stated, in part:
If we do not receive either your comments or response or the information within the period allowed, we may make a decision on the review without taking any further action to obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments. (emphasis in original)
The Tribunal received a submission by electronic mail from the representative on 21 December 2021 as the applicant’s response to the Tribunal’s letter dated 22 November 2021.
Applicant’s loss of hearing right
Section 360 of the Act provides:
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2)Subsection (1) does not apply if: …
(c) subsection 359C(1) or (2) applies to the applicant.
Section 359C of the Act provides:
(1)If a person:
(a)     is invited in writing under section 359 to give information; and
(b)     does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2)If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
       (b)     does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
The Tribunal wrote the applicant on 20 January 2022 to advise he had lost the right to appear before the Tribunal under s.360(1) in the following terms:
As the response was received outside the extended prescribed time for response, this means that you have now lost any entitlement you might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The consequences of failing to respond to the Tribunal’s letter within the period allowed was explained in the Tribunal’s letter to you dated 6 December 2021 granting you an extended period of time to respond.
Sections 359C(1)(b) and (2)(b) of the Act now apply which provide that where information or comments or response are not given before the time for giving them has passed, the Tribunal may make a decision on the review without taking any further action to obtain the additional information sought under s.359(2) or to obtain your views on the information provided under s.359A.
The Tribunal will consider the information you have provided to date and any other information you provide prior to the Tribunal making a decision on your review.
In relation to the right to appear before the Tribunal, s.360(1) of the Act provides the Tribunal must invite an applicant to appear before it to give evidence and present arguments. Section 360(2) provides s.360(1) does not apply if, amongst other matters, s.359C(1) or (2) applies to the applicant. In that instance, s.360(3) of the Act provides that if s.360(2) applies then the applicant is not entitled to appear before the Tribunal.
Section 363A of the Act separately provides that if the relevant part of the Act states that a person is not entitled to do something then unless another provision of the Act expressly provides otherwise, the Tribunal does not have the power to permit the person to do that thing. These provisions have been held to have the effect that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.
Additional opportunity for the applicant to provide further information
In its letter to the applicant dated 20 January 2022 the Tribunal afforded the applicant another opportunity to forward any additional information or submissions to the Tribunal following the loss of his right to appear before the Tribunal, in the following terms:
The Presiding Member may now proceed to make a decision on your application for review but has instructed me he withhold from doing so for 14 calendar days from the date of this letter, being 3 February 2022. If there is any other evidence or information you wish the Presiding Member to consider before making a decision on your application for review, please forward that information to the Tribunal by 5pm on 3 February 2022. After that time, the Presiding Member will make a decision based on the information before him.
Submissions received from the applicant
The submissions and documents received by the Tribunal from or on behalf of the applicant are set out in Attachment Three to this decision, including the submission the applicant provided to the Tribunal after losing his entitlement to appear before the Tribunal.
The Tribunal also received various other correspondence from the applicant or his representative in relation to administrative matters associated with the Tribunal’s review.
Tribunal decision
The Tribunal has had regard to all of the information in the written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal.
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 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?
s.116(1)(g) - prescribed ground
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 Regulations. In the present case, the ground in r.2.43(1)(oa) is relevant.
Regulation 2.43(1)(oa) provides:
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder 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));
It is not contested before the Tribunal that the applicant has been convicted of nine criminal offences in Victoria. In the primary decision the delegate listed seven criminal charges the applicant had pleaded guilty to and noted the applicant had been convicted of each charge, ordered to serve a Community Corrections Order and to do 300 hours of unpaid community work.
The alleged circumstances that led to each of the criminal charges being filed against the applicant and the applicant’s explanation of those circumstances are set out in detail in Attachment Two to this decision, being the Tribunal’s letter to the applicant dated 22 November 2021.
The applicant provided the Tribunal with a copy of the Community Corrections Order that confirms on 3 October 2019 at Ringwood Magistrates’ Court the applicant was convicted of nine criminal charges following his guilty plea, being:
·Unlawful assault that occurred on 2 July 2019;
·Unlawful assault that occurred on 17 July 2019;
·The following charges arising from the speeding incident on 28 June 2019:
oReckless conduct endangering life;
oDriving whilst disqualified;
oDangerous driving while pursued by police;
·The following charges arising from the incidents on 5 and 7 August 2019:
oContravene Interim Family Violence Intervention Order on 5 August 2019;
oDrive whilst disqualified on 7 August 2019;
oFail to stop a motor vehicle on request on 7 August 2019; and
oContravene a conduct condition of bail on 7 August 2019.
In addition to the Community Corrections Order and 300 hours of unpaid community work, the Order confirms the applicant was fined AUD200 and had his drivers licence suspended for two years.
The applicant also does not contest that there is a ground for the cancellation of his visa.
The Tribunal finds that as the applicant was convicted of nine criminal offences against the law of Victoria on 3 October 2019 the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(oa) exists. As that ground does not require mandatory cancellation of a visa under s.116(3), the Tribunal must proceed to consider whether the applicant’s 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 Procedural Instruction formerly known as the Department’s Procedures Advice Manual or PAM3 ‘General visa cancellation powers’.
The Tribunal has considered all of the applicant’s circumstances. The headings from the Department’s Procedural Instruction are used for convenience only.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant came to Australia on a temporary Student visa to study. In his October 2019 response to the NOICC the applicant stated he just wants to finish his studies and go home:
The sole reason I came to Australia was to study, gain knowledge and expertise in the field and head back home after completing my course. I have no intention to stay back in Australia after finishing my degree.
The applicant has provided information, which the Tribunal accepts, that he has been awarded a Master of Information Technology (Networking) from Deakin University on 6 October 2020. The applicant has not provided any information indicating that he wishes to undertake further study in Australia.
A Student visa is a temporary visa that allows the visa holder to live, study and work (subject to conditions) in Australia for the period of the visa or until they have completed their studies. It appears that the applicant has completed his studies in Australia, unless he wished to study at the Doctor of Philosophy (PhD) level or pursue another field of endeavour.
In the Tribunal’s letter to the applicant dated 22 November 2021 the Tribunal asked for information in relation to the applicant’s current visa as follows:
You were granted Bridging E (Subclass 050) visas on 20 November 2019 and 3 December 2019. Condition 8207 (No study) was attached to both Bridging E visas. You continue to hold the Bridging E visa you were granted on 3 December 2019. Provide information about whether you have applied for a Bridging E visa without condition 8207 attached.
The applicant’s representative responded in the submission received by the Tribunal on 21 December 2021 that:
Mr Anmol Chauhan did not apply for a Bridging Visa E without condition 8207 attached. He completed his Master of Information Technology Degree from Deakin University on 6th October 2020 (Appendix 13 Degree Certificate).
There is no information before the Tribunal that the applicant wishes to undertake PhD or any other further studies in Australia.
As the applicant appears to have completed his study in Australia and fulfilled the purpose for which he was granted a Student visa, and as a Student visa is a temporary visa, the Tribunal finds that the applicant does not have a compelling need to remain in Australia.
The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and in the applicant’s circumstances the Tribunal gives this consideration considerable weight.
The extent of compliance with visa conditions
The delegate found in the primary decision that there was no evidence before the delegate that the applicant had breached any condition of his Student visa.
Of concern to the Tribunal however was that the applicant has been granted two Bridging (Subclass 050) E visas since 20 November 2019 and both have condition 8207 no study in Australia attached to them.
The applicant was awarded a Master of Information Technology (Networking) on 6 October 2020. This indicates that the applicant may have continued to study to complete his Masters when he held a Bridging E visa that had a condition attached prohibiting the applicant from studying in Australia.
The Tribunal has been provided a transcript of the applicant’s academic results for his Masters studies up until October 2019. The Tribunal accepts that there can be a significant delay between the completion of study and the conferral of an academic award and even though a 12-month delay is, in the Tribunal’s experience, unusual it is not unprecedented. For these reasons the Tribunal does not make a finding that the applicant has continued to study in breach of condition 8207 that is attached to his current, and was attached to his first, Bridging E visa.
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 may be caused (financial, psychological, emotional or other hardship)
The applicant claims in submissions to the Tribunal and his response to the NOICC, summarised in the primary decision, that he is a person of good character and previously unblemished record who just wishes to complete his studies in Australia and that cancellation of his visa would cause him great hardship and pain, including by shattering his family’s dreams, jeopardising his career and putting his parent’s health at risk.

The applicant provided medical certificates in relation to the hospitalisation and treatment of his mother and the Tribunal accepts she has multiple medical conditions which could be aggravated, or at the very least, her recovery not assisted by her experiencing anxiety due to the applicant’s (her son’s) visa being cancelled.
The applicant claims his father earns a modest income, is the sole income-earner for their family, and has made many sacrifices and taken out two education loans for the applicant to be able to undertake and complete firstly his undergraduate degree in India and then his Masters in Australia. The applicant claims his father will “be completely shattered and heart broken” if the applicant’s visa is cancelled and he does not complete his studies and that all the money his father has invested in the applicant “would go in drain” (sic).
The applicant also claims the cancellation of his visa would cause him great humiliation and to be socially mocked back in India. Read in context, the Tribunal read these consequences arsing if cancellation meant the applicant did not return with an Australian qualification, but the Tribunal accepts there may be some stigma for the applicant from merely having his visa cancelled now that he has completed his studies, although this would seem less of an issue to the Tribunal than the fact the applicant is going to return to India with a criminal record.
The applicant has provided the Tribunal with a copy of a relationship certificate dated 27 October 2021 confirming he is in a domestic relationship with a named woman and that they live together. In the applicant’s written statement dated 21 December 2021, the applicant stated:
I have a very loving and supportive fiancé with whom I want to settle and start a family with soon. However, we are afraid that in doing so with my present uncertain circumstances would hinder the growth of our future. I would like to humbly make a request and a plea to the tribunal to have mercy on our future and not separate us by cancelling my student visa.
The Tribunal does not have any other information about the applicant’s fiancé, including her immigration status or whether she is an Australian citizen or permanent resident.
The Tribunal finds that the cancellation of the applicant’s visa will cause his parents significant emotional hardship but as he has now completed his studies will not cause them financial hardship and there is no evidence before the Tribunal they will suffer other hardship, such as psychological hardship.
The Tribunal finds that the cancellation of the applicant’s visa will cause him significant emotional hardship, not in relation to his studies, but in relation to the possible separation from his fiancé that may follow and also from the applicant’s concerns for his parents and his feelings of being humiliated and potentially mocked back in India.
The Tribunal also finds that the cancellation of the applicant’s visa will cause his fiancé emotional hardship as there is likely to be some period of separation but given the lack of information provided about the applicant’s fiancé the Tribunal gives this aspect of this consideration only modest weight.
The Tribunal finds that overall, this consideration weighs against the cancellation of the applicant’s visa and in the applicant’s circumstances the Tribunal gives this consideration considerable weight. The weight the Tribunal has given this consideration may have been greater, such as significant, if the applicant had not completed his studies in Australia.
The circumstances in which ground of cancellation arose
The circumstances of the cancellation of the applicant’s visa are that he was charged with over 20 criminal offences arising from five separate incidents that occurred on 28 June 2019, 2 July 2019, 17 July 2019, 5 August 2019 and 7 August 2019 and he pleaded guilty to and was convicted of nine of those offences.
The purpose of this consideration is for the Tribunal to consider whether, when the circumstances for cancellation of the visa arose, there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.
The Tribunal notes two points in relation to this consideration. Firstly, the Tribunal having found that the applicant’s criminal offending provides a ground for cancellation of his visa, it is important the Tribunal does not ‘double-count’ those circumstances to find that, in effect, the applicant’s criminal offending also weighs in support of the cancellation of his visa. Secondly, the applicant has been sentenced in relation to his criminal offending such that notions of ‘punishment’ are not relevant to the Tribunal’s consideration. Criminal law considerations of mitigating circumstances are a legal concept relevant to sentencing. That is not the task of the Tribunal. The task of the Tribunal is to weigh all of the circumstances of the applicant to assess, having found there is a ground for the cancellation of his visa, whether his visa should be cancelled or not as an administrative law matter under Australia’s migration law, not criminal law.
The applicant provided a document in his response to the NOICC in October 2019 titled ‘timeline of events’. In this document the applicant put forward his version of events in relation to each of the incidents that led to criminal charges being filed against him. In its letter to the applicant dated 22 November 2021 the Tribunal observed, based on information the applicant provided in his ‘timeline of events’:
·[you] have committed two separate acts of personal violence against [your former de facto partner] who trusted you as her intimate partner at the time and the violence you perpetrated against [your former de facto partner] required the Magistrates’ Court to intervene to try and protect [your former de facto partner] from your violent behaviour by issuing interim and final Family Violence Intervention Orders;
·[you] have been sentenced as having a not insignificant degree of moral culpability for your offending because a conviction was recorded for all nine offences you pleaded guilty to, an 18 month Community Corrections Order was imposed on you that requires you to undergo treatment and rehabilitation for your offending and perform 300 hours of community work, you were fined, your driver’s licence was cancelled and you are disqualified from applying for a new driver’s licence until 2 October 2021;
·[you] have little to no insight into your offending against [your former de facto partner] and have exhibited no genuine remorse for that offending as you continue to deny any assault occurred;
·[you] have little or no insight into the danger your manner of driving has on at least three separate occasions placed yourself, your passengers, police officers and other road users in because you have indicated you pleaded guilty to achieve a certain sentencing outcome, not because you accept responsibility for your offending, are genuinely remorseful for that offending or have any insight into what caused you to drive in that manner which may indicate you will not do so again;
·your offending indicates you do not respect Australia’s laws as you have been convicted of breaching an order of the Magistrates’ Court, a condition of bail and twice of driving when you knew your licence had been disqualified and you did not have the lawful right to do so;
·your offending indicates you do not respect the authority of Victoria Police in maintaining public order as you have been convicted of failing to obey a lawful direction of a police officer and driving in a dangerous manner when pursued by police;
·your explanations given to Victoria Police to explain some of your offending are not credible or plausible and could contribute to the Tribunal finding that you are not a credible witness, including that:
o   You were speeding at 194kmh on 28 June 2019 because [your former de facto partner] was having panic attacks and you were taking her to hospital, despite the fact you had already driven through Mansfield where a hospital is located;
o   You did not see the emergency lights operating on the police vehicle on 28 June 2019 when both independent witness drivers saw those lights;
o   You were at the Box Hill Police Station on 7 August 2019 to register a complaint about another matter and it was a mere coincidence that you were there when [your former de facto partner] was there. [Your former de facto partner] showed the police officers text messages you sent her while she was at the police station in which you stated you knew she was at the police station and asking why she was involving the police and the police officers also saw you drive from the police station to follow [your former de facto partner’s] car when she left the station;
o   You told Victoria Police your friend [name deleted] was driving your car on 7 August 2019 when [your friend] credibly told police you were driving and he was scared for his own safety by your driving, including that he applied the handbrake to try to slow or stop you, unsuccessfully.
·you are not a credible witness because you continue to deny multiple allegations that were made in support of criminal charges you have pleaded guilty to and have been convicted of including that:
o   [Your former de facto partner] dreamed you assaulted her on 17 July 2019 and that you acted in self-defence on 2 July 2019, neither of which are plausible or credible explanations; and
o   There is no evidence you were driving the car on 7 August 2019 when your passenger, [your friend] told Victoria Police you were driving;
o   There was no evidence for the reckless conduct endangering life and dangerous driving charges on 28 June 2019 despite the witness statements of two independent witnesses who observed your driving and supported the allegations of the two police officers who observed your driving and filed the charges against you; and
o   In your submission to the Tribunal received on 18 November 2019 you submitted “I never contravened the family violence interim order or contravened a conduct condition of the bail. I can never even think of doing so.” The public record, reflected in the copy of the Community Corrections Order made on 3 October 2019 that you provided to the Tribunal, confirms you pleaded guilty to and were convicted of doing both of those things; and
o   In your submission to the Tribunal received on 18 November 2019 you also submitted “… neither I committed multiple family violence or assault.” The public record, reflected in the copy of the Community Corrections Order made on 3 October 2019 that you provided to the Tribunal, confirms you pleaded guilty to and were convicted of twice unlawfully assaulting your then girlfriend.
The Tribunal noted in the part of its letter to the applicant requesting further information that the dates referred to in the applicant’s ‘timeline of events’ did not match the dates Victoria Police alleged in the charges that some of the events occurred and invited the applicant to provide further information in this regard.
Despite the applicant receiving the Tribunal’s letter setting out in detail the Tribunal’s potential concerns with the applicant’s claims about the circumstances of his criminal offending the applicant has not resiled from any of his claims. The applicant provided an updated ‘timeline of events’ document to the Tribunal on 21 December 2021 in which he corrected the dates, redrafted some aspects of the document but adhered to his explanations provided in the 2019 version.
The applicant claims he pleaded guilty to some charges based on legal advice not based on his actual guilt and that there were extenuating circumstances beyond his control in relation to some of the matters he pleaded guilty to, including:
·He was speeding at 194kmh because his former de facto partner was having a panic attack;
·He did not see the red and blue flashing emergency lights of the police car and saw someone wave at him but did not know it was a police officer directing him to stop;
·The assaults of his former de facto partner never occurred because she dreamt one assault and the other was an act of self-defence or an innocent mistake;
·The applicant did not breach his bail conditions by trying to contact his former de facto partner while she was at Box Hill police station on 7 August 2019; and
·The applicant was not driving the car when he departed the vicinity of Box Hill police station on 7 August 2019.
The Tribunal does not accept the applicant’s explanation for what occurred on 28 June 2019 when he was detected by police driving at an alleged speed of 194kmh. The Tribunal does not consider the applicant’s claim he was driving at that speed because he was taking his former de facto partner, who was having a panic attack, to hospital, noting Victoria Police’s observation that he had driven through a town where a hospital was located, to be either plausible or credible.
The Tribunal also does not accept the applicant’s explanation for not stopping on 28 June 2019 when he drove past a police officer who had stepped onto or near the road to wave him down and who had turned on the red and blue emergency lights of his police vehicle behind him to be either plausible or credible.
The Tribunal does not accept the applicant’s explanations of what occurred in relation to his former de facto partner on 2 July 2019 and 17 July 2019 or at Box Hill police station on 7 August 2019 as plausible or credible. The Tribunal does not accept the applicant’s first assault of his former de facto partner was an act of self-defence or a mistake or that she dreamt the second assault. The Tribunal prefers the information provided by Victoria Police including that Victoria Police officers saw text messages the applicant sent his former de facto partner while she was at the police station and directly observed the applicant to be driving the vehicle, this observation being supported by the applicant’s passenger who confirmed to police the applicant was driving the vehicle when they left the police station.
The Tribunal also does not accept the applicant’s explanation he only pleaded guilty to some charges to achieve a particular sentencing outcome that would allow him to complete his studies. A plea of guilty is an admission to the facts as alleged by Victoria Police in support of each charge unless there is an agreed change to the summary of circumstances read to the Magistrate. There is no information before the Tribunal that what was read to the Magistrate was different from the information provided to the Tribunal by Victoria Police.
It does the applicant no credit to claim before a Magistrate, as indicated by his pleas of guilt, that he accepts his guilt based on the circumstances presented to the Magistrate by Victoria Police and then to subsequently claim in a different forum, before the Tribunal, that he did that only to achieve a sentencing outcome and is actually not guilty of the majority of the matters he pleaded guilty to.
For these reasons the Tribunal finds that there were no extenuating circumstances beyond the visa holder’s control that led to the ground for the cancellation of his visa existing.
The Tribunal finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.
The past and present behaviour of the visa holder towards the department
The applicant participated in the cancellation process, including by responding to the NOICC and co-operating with the Department.
In the primary decision the delegate found:
There is no record of any adverse behaviour by the visa holder towards the Department. As such, I give some weight against cancelling the visa under this consideration.
There is no information before the Tribunal that the applicant has acted in a manner other than being co-operative with the Department.
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 would be consequential cancellations under s.140
The evidence before the Tribunal is that there is no-one who is dependent on the applicant’s visa so there will be no consequential cancellations under s.140 of the Act should the applicant’s visa be cancelled.
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, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether indefinite detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
In the primary decision the delegate found:
If the visa is cancelled the visa holder will become an unlawful non-citizen and be liable for detention under Section 189 and removal under Section 198 of the Migration Act 1958 if he does not voluntarily depart. The visa holder will be able to only make limited further visa applications permissible under Section 48 of the Act.
Cancellation in these circumstances means that Public Interest Criterion 4013 will apply to the visa holder and that he may not meet the requirement for grant of certain visa applications for a three year period.
The mandatory legal consequences of the cancellation of the applicant’s visa are significant but the risk of the applicant being detained and deported from Australia can be minimised if the applicant makes prompt arrangements to voluntarily depart Australia in the event his visa is cancelled.
Normally, the Tribunal finds this consideration weighs against cancellation. However, the Australian government has made it clear that where, particularly temporary, visa holders abuse the privilege of being granted a visa by committing criminal offences while in Australia then such visa holders can expect that their visa will be cancelled and they will face other consequences such as not being able to apply for another temporary visa before departing Australia and not being able to return to Australia for a period of time unless there are relevant compassionate or compelling circumstances affecting Australia or one its citizens, permanent residents or eligible New Zealand citizens.
In the applicant’s circumstances his criminal offending spans seven different incidents and he has demonstrated no genuine remorse towards his victims for that offending. The applicant’s explanations of his offending indicate to the Tribunal he has no gained insight into his offending such as by accepting and reflecting upon what he did and what factors caused him to act in the manner he did in the circumstances he found himself each time he offended. The applicant’s ongoing denial of some of his criminal offending and his implausible explanations in support of that denial is of great concern to the Tribunal in this regard.
To the applicant’s credit he has not been convicted of any further criminal offences since 3 October 2019. The Tribunal also accepts the evidence provided by the applicant that he has complied with the conditions of the Community Corrections Order by has not completed the unpaid community work due to restrictions on the movement and gathering of people introduced from time to time in Victoria in response to the COVID-19 global pandemic.
The applicant claims in submissions to the Tribunal to have learned a lesson and to have found that “going to church and learn[ing] the way of Christ has helped…” and that he now has the love and support of a fiancé in Australia. The applicant provided information, which the Tribunal accepts of his voluntary work in India and of providing voluntary information technology support to business in Australia during the COVID-19 global pandemic. The Tribunal accepts this evidence and finds that the applicant’s personal circumstances have changed since his criminal offending occurred and that this has had a positive effect upon him.

In balancing these considerations, the Tribunal finds the cancellation of the applicant’s visa will have mandatory legal consequences that will be negative for the applicant, including each of the potential consequences identified by the delegate, but that in the applicant’s circumstances of being convicted of nine separate criminal offences within less than 18 months of having arrived in Australia on a temporary visa, the applicant could have reasonably expected his visa to be cancelled and additional mandatory consequences to follow that cancellation.
The Tribunal finds that overall, this consideration weighs in support of the cancellation of the applicant’s visa and in the applicant’s circumstances the Tribunal gives this consideration some weight.
Whether any international obligations, including non-refoulement, family unity and best interests of children as a primary consideration, would be breached as a result of the cancellation
There is no evidence before the Tribunal that the applicant has any children or that he claims that Australia owes him an obligation of protection or any other obligations under relevant international agreements.
The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The applicant’s Student visa is a temporary visa.
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 matters
The applicant provided the Tribunal with a copy of a charge sheet for additional criminal charges that have been filed against him by Victoria Police on 5 July 2020. These charges are make a false report to police and perjury (corrupt and wilful false statement made under declaration) in relation to a report to Victoria Police of property being obtained by deception, with the report being made on 19 October 2019.
The Tribunal has no further information in relation to these criminal charges and makes no adverse findings and draws no adverse inferences against the applicant.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the applicant’s Student (Subclass 500) visa should be cancelled because the Tribunal finds that the discretionary considerations that weigh in support of cancellation outweigh the discretionary consideration that weight against cancellation.
The discretionary considerations that weigh in support of the cancellation of the applicant’s Student visa are:
·the applicant has completed his studies, fulfilled the purpose of his visa and has no compelling reason to remain in Australia;
·there were no extenuating circumstances beyond the applicant’s control that led to the ground for cancellation of his visa arising; and
·the applicant could have reasonably expected the mandatory legal consequences that will follow the cancellation of his visa to arise in circumstances where he has been convicted of nine separate criminal offences within less than 18 months of having arrived in Australia on a temporary visa.
The discretionary considerations that weigh against the cancellation of the applicant’s Student visa are:
·the applicant has complied with the conditions of his Student visa and Bridging E visas;
·the applicant, his parents and his fiancé will suffer some emotional hardship if the applicant’s visa is cancelled, although this hardship will be ameliorated to a significant degree by the fact the applicant has fulfilled the purpose of his Student visa by completing his Masters studies in Australia; and
·the applicant’s past and present behaviour towards the Department has been co-operative.
The Tribunal found the remaining discretionary considerations to be neutral and weighing neither in support of nor against the cancellation of the applicant’s Student visa.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Michael Ison
Senior Member

ATTACHMENT ONE – Edited copy of the Tribunal summons to Victoria Police

To:

Name:

The Proper Officer of Victoria Police

Address:

Served by electronic mail: [email protected]

And by registered post: Subpoena Management Unit

Level 2, 456 Lonsdale Street

MELBOURNE Vic 3000.

YOU ARE HEREBY SUMMONED under s 363(3) of the Migration Act 1958 to produce the following documents or things to us on or before the date given below.

Date:

5pm on Thursday 8 April 2021

Place:

Administrative Appeals Tribunal

GPO Box 9955, Melbourne VIC 3001

(1)   A copy of any statement of facts or summary of offending or similar document read to the Magistrate when Mr CHAUHAN was convicted of several offences at Ringwood Magistrates Court on 3 October 2019.

(2)   A copy of the statement of facts or similar document detailing the allegations against Mr CHAUHAN in relation to the criminal charges filed against him on 28 June 2019 which included charges of drive whilst disqualified, fail to stop motor vehicle on request and reckless conduct endanger life.

(3)   A copy of the statement of facts or similar document detailing the allegations against Mr CHAUHAN in relation to the criminal charges filed against him on 8 August 2019 which included charges of unlawful assault (x2), contravene Family Violence Interim Intervention Order, drive whilst disqualified, fail to stop a motor vehicle on request and contravene a conduct condition of bail.

For background and context and documents excluded from this summons please see the next page.

Background and context
Mr CHAUHAN has sought review by the Tribunal of the decision to cancel his Student visa. The Tribunal has a discretion whether to cancel the visa or not. In information provided to the Tribunal Mr CHAUHAN has sought to explain the circumstances of his offending which is relevant to the exercise of the Tribunal’s discretion to cancel Mr CHAUHAN’s visa, or not.
The Tribunal is not satisfied that explanation provided by Mr CHAUHAN is a full and frank explanation of the circumstances as alleged by Victoria Police when Mr CHAUHAN pleaded guilty to the nine charges he was convicted of. For this reason the Tribunal seeks documents from Victoria Police that confirm the matters that were alleged against Mr CHAUHAN when he was convicted of the nine charges on 3 October 2018. …
Documents excluded from this subpoena
The Tribunal specifically is not summonsing the full Victoria Police Briefs of Evidence against Mr CHAUHAN and does not require copies of charge sheets, witness statements, LEAP reports (unless they are the only summary of the relevant circumstances of Mr CHAUHAN’s offending), exhibit lists, photographs, records of interview, medical reports or other documents that Victoria Police may hold in relation to Mr CHAUHAN.
ATTACHMENT TWO – Reformatted Tribunal letter to the applicant under ss.359A and 359(2) of the Migration Act (eight pages, emphasis and hyperlinks in the original)
Case number: 1932796
22 November 2021
Mr Anmol Chauhan
Email: [deleted]
Dear Mr Chauhan
INVITATION TO COMMENT ON OR RESPOND TO INFORMATION AND TO PROVIDE INFORMATION – MR ANMOL CHAUHAN
I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to cancel your Subclass 500 (Student) visa.
Invitation to comment on or respond to information
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
On 18 March 2021 the Tribunal issued a summons to Victoria Police. A copy of that summons is enclosed.
Victoria Police responded to the summons by email on 29 March 2021, 31 March 2021 and 6 April 2021, although due to an internal error the last response was delayed in being forwarded to the Presiding Member. In those responses Victoria Police provided the following documents:
·Document One: one page of a Victoria Police document titled ‘Preliminary Brief – Statement Made by Informant’ that is undated;
·Document Two: five pages of a Victoria Police document titled ‘Remand Brief’ that is dated 8 August 2019;
·Document Three: four pages of a Victoria Police document titled ‘Court Mention Brief’ that is dated 12 September 2019;
·Document Four: 18 pages of a Victoria Police document titled ‘Preliminary Brief – Statement Made by Informant’ that is undated but was signed by the informant on 17 July 2019; and
·Document Five: Seven pages of charge sheets with seven criminal charges filed against you on 28 June 2019 and five further criminal charges filed against you on 23 July 2019.

Copies of each of these documents are enclosed.
Particulars of information
Document One: Incidents on 2 July 2019 and 17 July 2019
The Record of Decision to cancel your Student visa dated 6 November 2019 records that you told the Department that the two charges of unlawful assault arose from:
·“a verbal spat [when you] mistakenly pushed [your then girlfriend] back during the argument but [you] never intended to hurt her or cause her pain”
·and you state “She had a bad dream that [I] intentionally pressed her swollen forehead to hurt her and she called the police.”
·and you state “there is no evidence of the assaults because they never happened”
·and that you only pleaded guilty to these offences to avoid a potential jail term if you were found guilty in a contested hearing and “in order to be able to focus on [your] studies.”

Document One provided to the Tribunal by Victoria Police makes the following allegations against you:
·On 2 July 2019 you pushed your former girlfriend, [name deleted], into a wall at a party causing her bruising and swelling to one of her fingers and you were subsequently charged with unlawful assault as a result;
·At approximately 2am on 17 July 2019 you started poking [name deleted] and pressed a bruise on her head before threatening to aggravate a previous injury she had and you were subsequently charged with unlawful assault as a result;
·[Name deleted] was scared you were going to hurt her on 17 July 2019 and so went to the bathroom where she called the police;
·While [name deleted] was in the bathroom at that time you were at the door trying to find out who she was calling and trying to stop her;
·When police arrived [name deleted] provided a statement to police and photographs of her finger that had been injured previously and an x-ray referral she had been given when she attended a medical clinic for the injuries to her finger;
·Police subsequently issued you with a Family Violence Safety Notice;
·You denied assaulting [name deleted] on 17 July 2019 claiming you were just massaging her head; and
·You admitted assaulting [name deleted] on 2 July 2019 stating that [name deleted] was holding your hands because you had drunk too much and you pushed her off you and into a wall; and
·You were charged with two counts of the unlawful assault of [name deleted] arising from these incidents.

Documents Two and Three: Incidents on 5 and 7 August 2019 and 28 June 2019
The Record of Decision to cancel your Student visa dated 6 November 2019 records that you told the Department in relation to these incidents:
·5 August 2019 – you were taken to hospital for an injury and when you were in the emergency ward you sent [name deleted] a picture of your wound and requested her to be with you as it was midnight and you were alone;
·7 August 2019 – You went to the police station with a friend to register a complaint regarding another matter but unfortunately [name deleted] was also there at the same time and she told the Police that you were trying to contact her. You and your friend were in your car and the police believe that you were driving the car when your bail conditions stated you were not to drive a motor vehicle;
·28 June 2019 – You and friends were in a car heading to a day out and you were driving at a high speed in a 100 km per hour zone. A police officer waved a hand at you to stop but you didn’t because you were scared that if you stopped and the police checked your license, you would get in trouble as your license was suspended for three months;
·“The visa holder states that there is no evidence of the assaults because they never happened and there is no evidence that he was driving the vehicle on 7 August 2019. The only charge he accepts is the sending of pictures which caused the victim distress, driving at a high speed, driving while disqualified and failure to stop when told to do so. The visa holder states that he was told not to go to trial over the charges as he may be jailed if he is convicted for just one of the charges. He was told that if he entered a plea of guilty then he will be given a Community Corrections Order. The visa holder states that he pled guilty, although there was no evidence for the rest of the things except the three charges he has stated previously, and he did so in order to be able to focus on his studies.”

Documents Two and Three provided to the Tribunal by Victoria Police makes the following allegations against you:
·On 19 July 2019 an Interim Family Violence Intervention Order (IFVIO) was issued by the Ringwood Magistrate’s Court naming [name deleted] as a protected person and you as the respondent, following the alleged incidents recorded in Document One;
·On 5 August 2019 [name deleted] had broken up with you and gone to stay at a friend’s house. Later that evening [name deleted] returned to your house to collect some belongings and you refused to allow her to do so, went to the kitchen and began to cut yourself with a knife;
·[Name deleted] called 000 and you were detained by Victoria Police and taken to Box Hill hospital where you took a series of photos of your slashed wrists and bandages and sent them to [name deleted] stating you wanted her to come and talk to you which made [name deleted] feel disgusted and very distressed emotionally;
·After the 5 August 2019 incident you continued to call and text [name deleted] and her family and friends to try and obtain her location;
·On 7 August 2019 [name deleted] attended Ringwood Magistrate’s Court to have the IFVIO varied to place full conditions on you to prevent you from having any contact with [name deleted];
·You made a total of 20 calls and sent 43 text messages to [name deleted] on 7 August 2019, including when she was attending Box Hill Police Station to make a statement;
·[Name deleted] became fearful you had followed her to the Police Station. Victoria Police directed [name deleted] to leave in her vehicle in a certain direction and two police officers observed her doing so;
·The police officers then observed you driving a vehicle behind [name deleted’s] vehicle and directed you to stop but you accelerated away;
·The police officers then ran to intercept you and directed you to stop but you accelerated away again narrowly missing another vehicle when doing so;
·[Name deleted] returned to the police station as she was now scared to return home because she knew you had followed her;
·Victoria Police contacted you and asked you to attend Box Hill Police Station, which you did just before 10pm that evening when you were arrested;
·When interviewed by Victoria Police you admitted sending [name deleted] photos on 5 August 2019 and texting and calling [name deleted] on 7 August 2019. You claimed you were not driving when observed by police officers on 7 August 2019 and that the vehicle was driven by your friend, [name deleted];
·[Your friend], attended at the Police Station with you and told Victoria Police he was in the car with you, you were driving and he was frightened for his own safety due to the nature of your driving;
·You were on bail from Mansfield Magistrate’s Court on 28 June 2019 and your undertaking of bail included a condition not to drive a motor vehicle;
·You were charged with ten criminal offences arising from the incidents on 5 and 7 August 2019 being:
oContravene Family Violence Order (two charges);
oStalking;
oUse a carriage device to harass;
oReckless conduct endanger life;
oReckless conduct endanger serious injury;
oDrive in a dangerous manner;
oDrive whilst disqualified;
oFail to stop a motor vehicle on request;
oBreaching bail.

·On 28 June 2019 at approximately 9am you were detected by Mansfield Highway Patrol driving at 196 kilometres per hour in a 100 kilometre per hour speed zone and failed to stop when police tried to intercept you;
·You were subsequently arrested and interviewed at Mansfield Police Station, charged and bailed to appear at Mansfield Magistrates’ Court on 7 August 2019;
·You were charged with twelve criminal offences arising from the 28 June 2019 incident;
·This document repeats the allegations in relation to the incidents on 2 July 2019 and 17 July 2019; and
·This document also indicates Victoria Police opposed your application for bail following the July 2019 incidents because you were alleged to have committed indictable offences while on bail for indictable offences arising from the 28 June 2019 incident, had breached an IFVIO and were considered a flight risk.

Document Four: Incident on 28 June 2019
This document includes a detailed statement of alleged facts from Victoria Police that alleges, including:
·Police tried to intercept you by a police officer in a reflective vest standing at the side of the road and indicating by hand signals for you to stop while the red and blue emergency lights on the nearby police vehicle were activated;
·You crossed over a solid white dividing line and drove on the wrong side of the road as you approached and passed the police officer;
·Police pursued you with their emergency lights flashing, observing you crossing double white lines to overtake another vehicle;
·There were four other people in the vehicle when you eventually stopped;
·You were interviewed by Victoria Police and admitted to driving the vehicle at high speed, indicated you had hired the vehicle the night before, claimed your girlfriend was having panic attacks and you were taking her to hospital, claimed you were driving into the sun and did not see the red and blue emergency lights of the police vehicle but did see someone waving at you and acknowledged your driving at high speed was dangerous and put lives at risk;
·This document also lists the witnesses to your alleged offending and Victoria Police exhibits;
·The exhibits include detailed statements from the drivers of two other motor vehicles who observed your high speed driving and both observed the red and blue emergency lights of the police vehicle;
·The exhibits also include documents that evidence you were disqualified from driving and obtaining any licence or permit to drive in Victoria on 19 June 2019 for three months to 18 September 2019 for excessive speeding, being that on 21 May 2019 you drove in a manner exceeding the speed limit by more than 30 kilometres per hour but less than 35 kilometres per hour and you were notified of this disqualification on 19 June 2019, only nine days before your further offending.

Document Five: Incident on 28 June 2019
This is seven pages of charge sheets detailing the criminal charges filed against you arising from the 28 June 2019 incident. You were charged with:
·Reckless conduct endanger life;
·Reckless conduct endanger serious injury;
·Dangerous driving (three charges);
·Failing to stop on request (two charges);
·Driving when given a direction to stop;
·Exceed 100kmh speed limit by 45kmh or more (detected speed of 196kmh and alleged speed of 194kmh);
·Driving while disqualified;
·Exceed 80kmh speed limit by 45kmh or more (alleged speed of 130kmh); and
·Failing to keep to the left of the dividing line.

There is also an email from Victoria Police to the Department of Home Affairs dated 14 October 2019 that relevantly states:
I can confirm the following details in relation to the sentencing of Anmol CHAUHAN at Ringwood Magistrates Court on 03/10/2019.
CHAUHAN was convicted of the following offences;
Unlawful assault x 2.
Contravene Family Violence Intervention Order.
Contravene A Conduct Condition Of Bail.
Drive Whilst Disqualified.
Fail To Stop Motor Vehicle On Request.
Reckless Conduct Endanger Life.
All other listed charges were struck out or withdrawn.
CHAUHAN was sentenced to 300 hours unpaid community work, a $200 fine, to undergo assessment, treatment and judicial monitoring.
CHAUHAN’s licence was cancelled and disqualified for 2 years and he has been placed on an 18 month Community Corrections Order.

You have provided the Tribunal with a copy of your Community Corrections Order that confirms on 3 October 2019 at Ringwood Magistrates’ Court you were convicted of:
·Unlawful assault that occurred on 2 July 2019;
·Unlawful assault that occurred on 17 July 2019;
·The following charges arising from the incident on 28 June 2019:
oReckless conduct endangering life;
oDriving whilst disqualified;
oDangerous driving while pursued by police;

·The following charges arising from the incidents on 5 and 7 August 2019:
oContravene IFVIO on 5 August 2019;
oDrive whilst disqualified on 7 August 2019;
oFail to stop a motor vehicle on request on 7 August 2019; and
oContravene a conduct condition of bail on 7 August 2019.

The relevance of this information to your review
The information in the five documents provided to the Tribunal by Victoria Police is relevant to your review because they explain the circumstances in which the ground for cancellation of your Student visa arose, which is one of the considerations the Tribunal must weigh in deciding whether your Student visa should be cancelled or not.
The Tribunal is entitled to rely on your guilty pleas to the nine criminal charges you were convicted of as your admission of the facts alleged against you to support each charge unless you provide a copy of the prosecution summary read to the Magistrate at the time of your plea and demonstrate that summary materially differs from the police allegations.
The information is also relevant to your review because it goes to the reliability of your recollections and your credibility as a witness and the weight the Tribunal may give your oral evidence as a result.
The information in the Victoria Police email dated 14 October 2019 is relevant to your review because it discloses additional sentence imposed on you not recorded in the decision of the delegate to cancel your visa, being you were also fined AUD200 and your driver’s licence was cancelled and you were disqualified from driving for two years.
The consequences for your review if the Tribunal relies on this information
If the Tribunal relies on the information provided by Victoria Police it could form the view that you:
·have committed two separate acts of personal violence against [name deleted] who trusted you as her intimate partner at the time and the violence you perpetrated against [name deleted] required the Magistrates’ Court to intervene to try and protect [name deleted] from your violent behaviour by issuing interim and final Family Violence Intervention Orders;
·have been sentenced as having a not insignificant degree of moral culpability for your offending because a conviction was recorded for all nine offences you pleaded guilty to, an 18 month Community Corrections Order was imposed on you that requires you to undergo treatment and rehabilitation for your offending and perform 300 hours of community work, you were fined, your driver’s licence was cancelled and you are disqualified from applying for a new driver’s licence until 2 October 2021;
·have little to no insight into your offending against [name deleted] and have exhibited no genuine remorse for that offending as you continue to deny any assault occurred;
·have little or no insight into the danger your manner of driving has on at least three separate occasions placed yourself, your passengers, police officers and other road users in because you have indicated you pleaded guilty to achieve a certain sentencing outcome, not because you accept responsibility for your offending, are genuinely remorseful for that offending or have any insight into what caused you to drive in that manner which may indicate you will not do so again;
·your offending indicates you do not respect Australia’s laws as you have been convicted of breaching an order of the Magistrates’ Court, a condition of bail and twice of driving when you knew your licence had been disqualified and you did not have the lawful right to do so;
·your offending indicates you do not respect the authority of Victoria Police in maintaining public order as you have been convicted of failing to obey a lawful direction of a police officer and driving in a dangerous manner when pursued by police;
·your explanations given to Victoria Police to explain some of your offending are not credible or plausible and could contribute to the Tribunal finding that you are not a credible witness, including that:
oYou were speeding at 194kmh on 28 June 2019 because [name deleted] was having panic attacks and you were taking her to hospital, despite the fact you had already driven through Mansfield where a hospital is located;
oYou did not see the emergency lights operating on the police vehicle on 28 June 2019 when both independent witness drivers saw those lights;
oYou were at the Box Hill Police Station on 7 August 2019 to register a complaint about another matter and it was a mere coincidence that you were there when [name deleted] was there. [Name deleted] showed the police officers text messages you sent her while she was at the police station in which you stated you knew she was at the police station and asking why she was involving the police and the police officers also saw you drive from the police station to follow [name deleted’s] car when she left the station;
oYou told Victoria Police your friend [name deleted] was driving your car on 7 August 2019 when [your friend] credibly told police you were driving and he was scared for his own safety by your driving, including that he applied the handbrake to try to slow or stop you, unsuccessfully.

·you are not a credible witness because you continue to deny multiple allegations that were made in support of criminal charges you have pleaded guilty to and have been convicted of including that:
o[Name deleted] dreamed you assaulted her on 17 July 2019 and that you acted in self-defence on 2 July 2019, neither of which are plausible or credible explanations; and
oThere is no evidence you were driving the car on 7 August 2019 when your passenger, [name deleted], told Victoria Police you were driving;
oThere was no evidence for the reckless conduct endangering life and dangerous driving charges on 28 June 2019 despite the witness statements of two independent witnesses who observed your driving and supported the allegations of the two police officers who observed your driving and filed the charges against you; and
oIn your submission to the Tribunal received on 18 November 2019 you submitted “I never contravened the family violence interim order or contravened a conduct condition of the bail. I can never even think of doing so.” The public record, reflected in the copy of the Community Corrections Order made on 3 October 2019 that you provided to the Tribunal, confirms you pleaded guilty to and were convicted of doing both of those things; and
oIn your submission to the Tribunal received on 18 November 2019 you also submitted “… neither I committed multiple family violence or assault.” The public record, reflected in the copy of the Community Corrections Order made on 3 October 2019 that you provided to the Tribunal, confirms you pleaded guilty to and were convicted of twice unlawfully assaulting your then girlfriend.

This information would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review because it could lead the Tribunal to giving this consideration, the circumstances in which the ground for cancellation of your Student visa arose, great weight in support of the cancellation of your visa, to the extent that weight could outweigh some or all of the discretionary considerations the Tribunal will consider that may weigh against the cancellation of your Student visa.
You are invited to give comments on or respond to the above information in writing.
Invitation to provide information
The Tribunal also requests, pursuant to s.359(2) of the Act, that you provide the following information in writing:
1.An update of your personal circumstances including your current living arrangements, your recent work history (if any), your financial circumstances and your mother’s current health situation;
2.Whether you have successfully completed all requirements of the Community Corrections Order made on 3 October 2019;
ØFor example, your response could include providing a copy of any court issued document in relation to your Community Corrections Order and your completion of its requirements including attendance and/or completion certificates for any courses you have completed, as well as any statement of attendance or report on your community work;

3.Whether you have applied for a new driver’s licence and driven a vehicle in Victoria since the end of your disqualification period on 2 October 2021;
4.Whether you have been charged with any other criminal offences or have any other criminal matters currently before the courts that were not resolved at the Ringwood Magistrates’ Court on 3 October 2021;
5.The nine charges you pleaded guilty to occurred, according to information in the Community Corrections Order you provided to the Tribunal, on five separate dates as shown below, by charge:
·28 June 2019 – charge 1 reckless conduct endangering life, charge 6 drive whilst disqualified and charge 7 dangerous driving while pursued by police;
·2 July 2019 – charge 13 unlawful assault;
·17 July 2019 – charge 14 unlawful assault;
·5 August 2019 – charge 15 contravene a Family Violence Interim Intervention Order; and
·7 August 2019 – charge 22 drive while disqualified, charge 23 fail to stop a motor vehicle on request and charge 24 contravene a condition of bail.

You provided the Department with a “timeline of events” document that is reproduced in part in the Record of Decision. Your timeline refers to events on 28 June 2019, around 10 July 2019, 16 July 2019, 19 July 2019, 5 August 2019 and 7 August 2019. Please confirm whether your timeline for 10 July 2019 relates to charge 13 for events that occurred on 2 July 2019 and your timeline for 16 July 2019 relates to charge 14 for events that occurred on 17 July 2019.
ØFor example, your response could include providing a copy of your timeline and any clarifications or corrections to it, to the Tribunal;

6.You were granted Bridging E (Subclass 050) visas on 20 November 2019 and 3 December 2019. Condition 8207 (No study) was attached to both Bridging E visas. You continue to hold the Bridging E visa you were granted on 3 December 2019. Provide information about whether you have applied for a Bridging E visa without condition 8207 attached.

Timeframe to give comments or response and provide information
Your comments or response and the information should be received by 6 December 2021. If the comments or response or information are in a language other than English, they must be accompanied by an English translation from an accredited translator. If you cannot provide either the written comments or response or the information or both by 6 December 2021, you may ask us for an extension of time. If you make such a request, it must be received by us by 6 December 2021 and you must state the reason why the extension of time is required. We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
Consequences of not responding to either invitation
If we do not receive either your comments or response or the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.
If you have any questions, please email [email protected], or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
Yours sincerely
Arlene Z
For the Registrar
Telephone: 03 9454 6100
Attached:
·Redacted version of Summons to Victoria Police dated 18 March 2021;
·Victoria Police documents:
oPreliminary Brief – Statement Made by Informant, undated;
oRemand Brief, dated 8 August 2019;
oCourt Mention Brief, dated 12 September 2019;
oRedacted version of Preliminary Brief – Statement Made by Informant, undated but signed on 17 July 2019; and
oCriminal charge sheets filed on 28 June 2019 and 23 July 2019.

ATTACHMENT THREE – Submissions received by the Tribunal from the applicant
18 November 2019
·an undated four-page written statement from the applicant;
·a copy of the Primary Decision dated 6 November 2019;
·the bio-data page of the applicant’s current passport, valid from 25 August 2017 to 24 August 2027;
·a copy of the visa grant letter from the Department confirming the applicant’s Student visa was granted on 30 May 2018 and is valid to 30 August 2020;
·a copy of a NOICC under Section 116 of the Act from the Department, dated 17 October 2019;
·an undated six-page written statement from the applicant in response to NOICC dated 17 October 2019 issued by the Department;
·the applicant’s International English language Testing System (IELTS) Academic Test Report Form dated 21 April 2018;
·a letter of offer issued to the applicant from Deakin University, dated 7 December 2017 for enrolment in a Master of Information Technology (Professional);
·a request for fee reduction form dated 18 November 2019, lodged with the Tribunal;
·a copy of a Community Corrections Order issued to the applicant by Ringwood Magistrate’s Court on 3 October 2019;
·a statement of results for the applicant’s Master of Information Technology (Professional) from Deakin University, generated on 21 October 2019;
·a certificate awarded to the applicant for participating in an Inter School Commerce Quiz on 17 November 2014 issued by Doon Business School-Group;
·a certificate of appreciation awarded to the applicant participating in the Event “USP The Survivor 2” held on the 11^th &12^th of October 2014;
·a certificate issued to the applicant for participating in an Android – Workshop held on 23 to 26 February 2016 from Chandigarh University;
·a certificate of appreciation awarded to the applicant for participating in a mini-marathon issued by Mad-A-thon 2016;
·a certificate awarded to the applicant for completing the 5-kilometre ‘Our City Our Pride’ Run dated 26 March 2017;
·a certificate of appreciation awarded to the applicant for completing the 8-kilometre run issued by Mad-A-thon 2017;
·the applicant’s transcript of results for a Bachelor of Computer Applications from Chandigarh University dated 30 July 2018;
·evidence of a loan issued by Oil and Natural Gas Corporation Ltd in the name of the applicant’s father;
·a certificate titled ‘HelpAge India’ that states that the certificate was issued to “selected students who have made a special effort in sponsored events to help the aged”;
·the applicant’s father’s Indian Income Tax Return Acknowledgement for the assessment years of 2018-19, 2017-18, and 2016-17 and his father’s monthly payslip issued by the Oil and Natural Gas for May 2019 through to July 2019;
·a medical certificate dated 20 July 2019 issued by Dr Ashish Jain at S P Wahi Hospital in India regarding the medical conditions of the applicant’s mother; and
·a medical certificate dated 12 August 2019 issued by Dr Sanjay Gandhi at the City Heart Centre in Uttarakhand stating that the applicant’s mother has been admitted for care for her heart condition.

13 December 2019
·the applicant’s bank statements from the Commonwealth Bank for the period of 1 November 2019 to 10 December 2019;
·the applicant’s Kmart online payslip for the period of 2 December 2019 to 8 December 2019; and
·the applicant’s bank statement from the ANZ Bank for the period of 7 October 2019 to 2 December 2019.

21 December 2021
·a three-page written statement from the representative, dated 20 December 2021;
·the applicant’s amended and updated “timeline of events” for the events on 28 June 2019, 2 July 2019, 17 July 2019, 19 July 2019, 5 August 2019, 7 August 2019 and 3 October 2019;
·Charge – Sheet from Victoria Police dated 5 July 2020;
·an undated medical certificate issued by Dr Ashish Jain at S P Wahi Hospital regarding the medical conditions of the applicant’s mother;
·registered relationship certificate issued by the Registry of Births Deaths and Marriages, Victoria stating a domestic relationship between the applicant and his partner was registered on 27 October 2021;
·a residential rental agreement signed on 24 October 2021 by the applicant;
·an electricity bill issued by Red Energy on 9 November 2021 to the applicant;
·a phone bill issued by Optus to the applicant for the period 1 to 30 November 2021;
·an Australian Business Number (ABN) registration showing current details from ABN Lookup for the entity name: Chauhan, Anmol and ABN status: active from 25 November 2020;
·invoice dated 2 December 2020 issued by Elitek to Hearns Hobbies to pay for the applicant’s work;
·invoice dated 24 September 2021 issued by Elitek to Sunburn Solar to pay for the applicant’s work;
·an application for variation of a Community Corrections Order lodged at Ringwood Magistrates Court, signed on 31 March 2021 by the applicant;
·a certificate dated 11 March 2021 issued by Road Trauma Support Services Victoria Inc. certifying that the applicant has successfully completed the Road Trauma Awareness Seminar;

·a screen shot from the Vic Roads internet website updated on 30 September 2021 regarding details of the applicant’s drivers licence, learner permit and demerit points;
·a tax invoice for fuel dated 8 December 2021;
·screen shots of transaction details of purchasing fuel dated 6 November 2021 and 1 December 2021; and
·certificate of completion for a Master of Information Technology (Networking) issued to the applicant from Deakin University and dated 6 October 2020.

2 February 2022
·a copy of the letter dated 20 January 2022 from the Tribunal to the applicant; and
·an undated two-page written statement from the applicant.

[2022] AATA 1689

14 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal