Chhetri (Migration)

[2022] AATA 5039

Chhetri (Migration) [2022] AATA 5039 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajat Chhetri

REPRESENTATIVE:  Ms Krishlyn Krisha Chetty

CASE NUMBER:  2201209

HOME AFFAIRS REFERENCE(S):          BCC2021/954276

MEMBER:David McCulloch

DATE:12 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 August 2022 at 10:55am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – recklessly deal with the proceeds of crime – community correction order – consideration of discretion – provided false information to the Police – poor study history – decision under review affirmed

LEGISLATION
Crimes Act 1900 (NSW), s 193B
Migration Act 1958 (Cth), ss 116, 359AA

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 24 January 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Nepal born in 1999. The visa that was cancelled was granted on 5 November 2018, expiring on 15 March 2022.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 5 January 2022. The applicant provided a response to the NOICC on 10 January 2022.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 29 July 2022 at 9.30am to give evidence and present arguments.

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

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   consideration of Claims and evidence

8. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

10. The delegate’s decision record and documents on the Department file indicates that, according to a report provided by the NSW Police, the applicant has been convicted of the following criminal offence on 22 September 2021: recklessly deal with the proceeds of crime >$5000 T1 – convicted with a community correction order for two years, commencing 22 September 2021, concluding 21 September 2023; supervision for two years, commencing 22 September 2021, concluding 21 September 2023; community service work for 75 hours; pay compensation in the amount of $4,250.

11. In the hearing, the applicant acknowledged the conviction and penalty.

12. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

    Consideration of discretion

13. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under

    
    

    s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

14. The New South Wales Facts Sheet outlines the allegations against the applicant relating to the charges.

15. There were 2 co-accused, NG and AB. The victim was HA.

16. On 29 January 2021, HA received a phone call from an unknown number. The caller convinced HA to withdraw his money and deposited $6,900 and $9,900 into two separate bank accounts belonging to AB and the applicant respectively. Following the deposits, numerous cash withdrawals and retail transactions were made by AB and the applicant, including a $7,590 purchase of gold bullion in Auburn.

17. On 2 February 201, HA attended Mount Druitt Police Station and reported the matter. Police investigated the matter.

18. On 16 April 2021, the applicant attended Mount Druitt Police Station and spoke with investigators. Under caution, the applicant initially provided false information, before making full and frank admissions to providing his ANZ bank account to NG and conducting the withdrawals. The applicant was arrested.

19. The applicant admitted that he would receive a ‘commission’ of some $300–$400 for each withdrawal. The applicant also admitted to attending Ounce Jewellery at Auburn with NG, allowing NG to purchase the gold bullion using the proceeds obtained from the victim. The applicant admitted to receiving payment of $300 for this.

20. The applicant admitted to travelling to the Gold Coast by road on 9 February 2021. The applicant withdrew $5,400 over the counter at an ANZ branch in Surfers Paradise, while NG withdrew $1,000 from an ATM using the applicant’s card and PIN. The applicant withdrew $3,100 over the counter at a Southport branch. The applicant handed over the $8,500 to NG, and NG handed over the applicant’s ‘commission’.

21. The applicant also admitted to opening a number of bank accounts at the request of NG with the view to using these accounts to receive funds. The applicant stated a number of these accounts were blocked by the respective banks for suspicious transactions.

22. Whilst the prosecution was unable to establish the requisite level that the applicant, NG and AB were involved in the actual calls to the victim, they were complicit and their actions were ‘reckless’ as to the origins, legitimacy and in their dealings with the proceeds that were deposited into their accounts.

23. The applicant was charged with one count of recklessly deal with proceeds of crime under

    
    

    s 193B(3) of the Crimes Act 1900.

24. The applicant provided a response to the NOICC which indicated as follows. The applicant came to Sydney in November 2018 to commence his studies. The applicant changed his course to commercial cookery. However, the applicant was engulfed in different problems which resulted in a failure to maintain his visa status. He failed to pay his tuition fees and got sucked into a criminal case. COVID-19 affected him harshly. The pandemic caused the applicant to lose his job and created financial difficulties for his family. A person told the applicant that a person had money stuck in Australia and needed help to take it out. He said that someone would pay $10,000 to his account and would provide him $800 for providing his internet banking details. The applicant did not know that the money was scammed. He only knew about this when he was called by the police. The applicant was young and helpless and relatives did not help him.

25. The applicant made a huge mistake and had a fine of $4500 and undertook 75 hours of community service. The amount to be repaid is being paid in instalments. The applicant made a mistake by not following the rules of his Student visa. The applicant did not realise he had done anything wrong in terms of the scam. The applicant failed to maintain his Confirmation of Enrolment and has breached his visa condition. What happened was due to his ignorance and trusting people easily.

26. If the applicant was allowed to get a new enrolment he could prove himself as a good and decent person by filling study requirements and paying fees on time. The appliant asked for another chance.

27. A further undated statement was provided by the applicant to the Tribunal on 28 July 2022, the day before the hearing. The applicant similarly refers to the fact he allowed his bank account details to be used because he was told someone’s funds were stuck in Australia. The applicant refers to a lapse in judgement and that it will be his first and last mistake. The applicant indicates that he wishes to continue his higher education study in Australia to facilitate a better job.

28. Provided also on 28 July 2022 are character references for the applicant:

    ·From Ajay Raj dated 25 July 2022 – the writer is the employer of the applicant who the writer states is one of the best people the writer has met. He is honest. He has been an employee for a year. The writer called on the applicant more and more often. The writer has been told by the applicant that he got caught up in a scam and it was only later he got to know it was a scam. He got himself into the situation unknowingly and has learnt a lesson. He sincerely regrets his actions and vows never to repeat them.

    ·From Shree Ram Thapa dated 25 July 2022 – who asks for leniency for the applicant. The writer has been the applicant’s friend for around two years. The applicant is one of the best people he has met. He is giving and kindhearted. The writer is very thankful that the applicant came into his life. The applicant is not the type of person who would knowingly commit a crime. The applicant sincerely regrets his actions and vows never to repeat them.

29. Provided also is the Community Correction Order in relation to the applicant dated 22 September 2021 and the New South Wales Local Courts Notice of Penalty.

30. A submission was provided on behalf of the applicant dated 27 July 2022. It has been instructed that the applicant committed the offence unintentionally as he was unaware that the money he received in his bank account was derived from a fraudulent source. He now understands that he had an obligation to enquire about the source of the funds. The COVID-19 pandemic led the applicant to accept the funds because he was in desperate need of money to pay tuition fees. The applicant has completed his community service obligations and shown genuine remorse by cooperating and complying with the order given by the court. The applicant wishes to complete his higher education to facilitate good future job opportunities. The applicant does not have any prior convictions and this was a one-time single offence. The applicant understands the community expects non-citizens to obey Australian laws. The applicant has undertaken that he would not commit any crime as is evident by compliance with community service obligations. The applicant is of good character and character references are referred to. Hardship would be suffered to the applicant if the visa remains cancelled because he will be denied the opportunity to study in Australia. His departure from Australia will emotionally affect his parents. The applicant has been severely stressed by the events and has booked in for counselling with a psychologist, evidence of the consultation being provided.

31. In the hearing, the Tribunal put to the applicant pursuant to the procedural requirements of

    
    

    s 359AA of the Act information in the New South Wales Police Facts sheet relating to the charges together with the conviction itself. The Tribunal indicated that this information was relevant because it indicated reckless conduct, being criminal conduct by the applicant suggesting that he should have known of the potential illegality of the arrangement or at least had a wilful disregard for the illegality. Relevant also was the fact that the applicant according to the Facts Sheet initially provided false information to the Police. This suggests defensive behaviour suggesting some knowledge of wrongdoing. The consequence of relying on this information could be to consider that the factual circumstances leading to the conviction constitute inappropriate conduct by the applicant which would be considered adverse to the Tribunal in the exercise of its discretion whether to cancel the visa.

32. The Tribunal indicated that it would consider the written statements and submission provided as explaining the circumstances in response. The Tribunal indicated that the applicant had the option of providing further oral responses or responding late in writing. The applicant elected to respond orally.  In addition, the applicant’s representative indicated that a written submission would be provided following the hearing. The submission was received on 5 August 2022 addressing the s 359AA information and other matters as discussed below.

33. In relation to providing false information to the Police, the applicant acknowledged in the hearing that he told police incorrectly that he had spoken with a person in India who was seeking access to his money in Australia. The applicant indicated that this is what he had been told by those that had instigated the scheme. The applicant maintained that he did not know that he was involved in an illegal arrangement until told by the police.

34. The submission provided following the hearing indicates that the applicant regrets not telling the truth to police in the first place, but he was influenced by his flatmate/friend not to do so. The applicant had commented incorrectly to the police that he had had a conversation directly with someone in India with respect to the money however this was not true. He had done this because he listened to his flatmate/friend. The applicant trusted his flatmate/friend and believed that his friend would never betray him or get him into trouble. This was the first time there has ever been in trouble with the law. It is requested that extenuating circumstances be considered in terms of the applicant placing trust in his friend/flatmate. Young international students do not have much guidance in Australia except fellow friends from the same community who are also international students. The applicant did not have any knowledge that the funds would be from a fraudulent source.

35. In terms of the applicant’s study history in Australia, the applicant acknowledged the following in the hearing:

    ·a Bachelor of Information Technology he started on 5 November 2018 was cancelled on 10 October 2019 for unsatisfactory course progress

    ·a Certificate IV in Commercial Cookery started on 21 October 2019 was cancelled on 4 May 2024 for non-payment of fees

    ·a Certificate IV in Commercial Cookery that started on 3 August 2020 was cancelled on 18 February 2021 for non-payment of fees

    ·remaining courses enrolled in by the applicant were cancelled due to the cancellation of the Certificate IV courses

    ·that from 18 February 2021 until the visa was cancelled on 24 January 2022 – a period of 11 months – the applicant was not enrolled in a registered course as required under his visa and had breached condition 8202

36. The applicant in response to this poor study history indicated financial difficulties which were the cause of him not being enrolled in the course for 11 months.

37. The Tribunal asked the applicant if he had passed any units in any courses undertaken. He said he had not.

38. The written response provided following the hearing acknowledges that the applicant was in breach of the condition to be enrolled in a registered course. The applicant contends that he was not aware that he was breaching any visa condition and is remorseful that he was not proactive regarding his visa conditions. The applicant now realises the seriousness of the matter and seeks another opportunity to study. A Confirmation of Enrolment is provided in a Diploma of Project management due to commence on 15 August 2022.

39. The applicant has an extremely poor study history, not having passed any unit or course over a period of more than four years from arrival in Australia. This is significantly compounded by the applicant not being enrolled in a registered course for 11 months. Visa holders have an obligation to ensure that they have financial resources to undertake study. Fees owed by the applicant for study have not been paid from at least October 2021.

40. The Tribunal does not accept that the applicant would not have been aware of his obligation on his Student visa to be enrolled in a registered course. It is not plausible that the applicant would not recognise that he had an obligation to be enrolled to study being in Australia on a Student visa.

41. The Tribunal put to the applicant in the hearing that the breach of condition 8202 alone could be grounds to cancel the applicant’s visa, which, combined with his very poor study history and the criminal conviction weighed very heavily in favour of exercising the Tribunal’s discretion to cancel the visa.

42. In the hearing, the applicant indicated that if the visa is reinstated then he would wish to continue with his course in commercial cookery. It would be a hardship to the applicant if this was not possible and he has a compelling reason to stay in Australia to continue this study. However, as indicated above the applicant in the written submission provided following the hearing indicated his intention to study a Diploma of Project Management, evidence of enrolment was provided.

43. The applicant changing from the time of the hearing to a period following the hearing to completely change his field of study is undermining of the seriousness or focus that the applicant has given to his intended future study.

44. While the Tribunal accepts some degree of hardship if the applicant is not able to proceed with desired study, it has doubts about the fervency of his desire in this respect given his past very poor study history and very recent changing of intentions in terms of field of study.

45. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of his ability to apply for other substantive visas onshore. The Tribunal accepts that if the visa remains cancelled the applicant could be an unlawful non-citizen and detained albeit that the Tribunal considers that the applicant would be eligible for a Bridging visa to make his status lawful while he makes arrangements to leave the country.

1. The applicant indicated in the hearing that he eventually intends to return to Nepal and does not fear persecution or significant harm in Nepal. The applicant indicated that there are no children in Australia whose interests are affected by the cancellation.

2. In the written response provided following the hearing, it is indicated that the applicant has been emotionally and mentally upset since being approached by the police. He wishes to fix things by completing his study and turning his life around. If the visa were reinstated the applicant would comply with all visa conditions and complete his studies.

3. The Tribunal is prepared to give the benefit of the doubt and to accept that he was naïve in the arrangement to provide his bank accounts to facilitate the transfer of illegally obtained funds. The Tribunal is prepared to accept that there were at least some extenuating circumstances beyond his control leading to the conviction. Nevertheless, the Tribunal considers the conviction indicates that the applicant was reckless. This is adverse to the applicant to a degree.

4. However, even if it were a balanced decision for the Tribunal as to whether to exercise its discretion to cancel the visa based on the criminal convictions, the Tribunal is easily tilted in favour of exercising its discretion to cancel the visa when consideration is given to the applicant breaching condition 8202 to be enrolled in a registered course for a period of 11 months combined with his otherwise extremely poor study history over a period of more than four years in Australia while holding the Student visa. Whilst the Tribunal can accept financial difficulties caused by COVID-19 they do not, in the Tribunal’s view, excuse his lack of enrolment and poor study history over a number of years.

5. Balancing all discretionary factors, the Tribunal exercises its discretion to cancel the visa.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   decision

7. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   David McCulloch
   Member