Dhaliwal (Migration)

[2018] AATA 1369

Dhaliwal (Migration) [2018] AATA 1369 (20 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taranpreet Singh Dhaliwal

CASE NUMBER:  1731080

DIBP REFERENCE(S):  BCC2017/3247239

MEMBER:Tigiilagi Eteuati

DATE:20 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 20 February 2018 at 12:35pm

CATCHWORDS
Migration –Cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) visa – Unacceptable risk to the safety of the community – Criminal record – Sexual assault – Untruthful witness – Lack of acceptance of his offending – Downplayed his culpability – Has not undergone psychological treatment – Hardship – Family members’ shame and disappointment –Unable to complete his course

LEGISLATION
Migration Act 1958 ss 116, 359AA, 375A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 December 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the delegate was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 16 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister and his uncle. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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)(e)(i). 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.

7. The Tribunal has carefully considered all of the relevant information on the Department and Tribunal files including the submissions and documents provided to the Tribunal by the applicant.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. As mentioned above, in the present case, the delegate was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety of the Australian Community.

9. In the current case the delegate based her decision to cancel on information from the “relevant authorities” which indicated that the applicant had been charged with sexual assaults and common assault relating to events on 16 August 2017. It appears that the delegate also had a summary of the Court Brief containing the allegations made by Queensland Police against the applicant. This material was subject to a section 375A certificate preventing its disclosure to the applicant but as will be seen below, the applicant’s criminal history and the contents of the court brief received from Queensland police under summons were put to the applicant for comment under section 359AA.

10. The Tribunal sought information as to the applicant’s criminal history from Queensland Police. The documentation returned from Queensland Police included a Queensland Court Outcomes document for the applicant and Court Briefs containing the facts alleged by the police against the applicant for his crimes. All the information received from the Queensland Police was provided to the applicant prior to the hearing. At the hearing the Tribunal asked the applicant whether he had read the material from Queensland police that the Tribunal had given him and he said that he had.

11. The Queensland Court Outcomes document records that on 11 January 2018 the applicant was found guilty of sexual assaults and common assault, no conviction was recorded and the applicant was fined $1,000 and made to pay $1,000 in compensation. The Tribunal notes that whereas at the time of cancellation of the visa the applicant had only been charged with the offences, at the time of the hearing before the Tribunal the information from Queensland police indicated that the applicant had been found guilty of the offences. This information was put to the applicant for his comment or response in the manner required by section 359AA of the Act.

12. The applicant said that at the time of the offending he had recently separated from his wife and was feeling depressed and alone. He said that he boarded a bus and proceeded to sit next to a young woman on the bus. He said that he asked if they could be friends and he she said yes and they exchanged telephone numbers. He said that he was excited and thought that they would become good friends and that, in his excitement, he kissed the young woman.

13. The applicant said that after this they spoke as friends for the remainder of the journey. He said that the young woman was in the process of entering her Facebook contact details into his telephone when the bus came to her stop. He said that she moved to get off the bus and he did not get up to let her pass but instead moved his body in the seat so that she could get by. He said that during this process his hand accidently touched her back. The Tribunal asked the applicant to confirm that his evidence was that his hand accidently touched her back while she was moving past him to get by and he confirmed this a number of times. He specifically said that he did not grab the young woman’s “ass” as was alleged and that this part of the allegation against him was “taken back.”

14. He said that after the young woman left the bus, he followed her so that he could get her to finish entering her Facebook contact details into his telephone. He said that it was only at this point that the young woman told him to leave her alone, which he did.

15. The Court Brief containing the facts alleged by the police against the applicant provided:

    “The victim in this matter is [ ], a 20 year old female.

    On 16^th August 2017 the victim had finished work at [ ]. The victim caught the Brisbane City Council bus heading towards the City at approximately 10.46pm. The victim entered the empty bus and sat on the bus close to the second exit. The victim was sitting on the window side of the two seats.

    At this time the defendant, described by the victim as an Indian male wearing a distinctive red turban, entered the bus. The defendant has entered the bus that was empty except for the victim, and chosen to sit next to the victim. The defendant occupied the aisle seat while the victim was sitting at the window seat.

    The victim has described in her statement that she was at this point uncomfortable and concerned due to an unknown male choosing to sit right beside her when there were so many empty seats where the mail could have sat.

    The defendant complimented the victim on her appearance and asked for the victim’s mobile. The victim provided her mobile to the defendant as she was concerned what might happen if she said no. The victim described in her statement she provided the correct number in case he called to check.

    After obtaining the victim’s mobile the defendant has called the victim’s mobile showing his phone number as [ ].

    Common assault

    The defendant asked the victim if he could put his arms around the victim. The victim said, ‘no’. Despite this, the defendant placed his arms around the victim and kissed the victim on the cheek.

    The victim pushed the defendant away and said to the defendant that she likes her own personal space. The defendant removed his arms from around the victim’s shoulders.

    The victim described in a statement that the defendant continued touching her arms and legs as the bus travelled towards the city.

    Sexual assault

    As the bus arrived to King George Square bus station the victim has stood up to exit the bus. The victim states that as she was exiting she felt the defendant’s hands go through her loose fitting shorts and grab her on the backside. The victim felt the hands squeeze her backside and could feel them going towards her vagina.

    The victim left the bus and walked up through King George bus station. The victim has purposely walked faster to make sure she can create distance with the defendant. The victim described seeing the defendant run up towards her.

    At the intersection of Adelaide and Albert Street the defendant has caught up to the victim and said, “where are you going? I’m going your way.” The victim told the defendant to leave her alone.

    The defendant left and walked up Adelaide Street.

    While walking away the defendant has sent a text message to the victim stating,

    “[ ] hiii its tony am sorry if you feel uncomfortable see u soon.”

    The defendant has attempted to call the victim twice which the victim did not answer.

    The defendant sent another text message stating,

    “[ ] sorry plz can u txt me back.”

    The victim has blocked the defendant’s phone number to prevent him from contacting him more.

    Police investigation

    Pretext

    On 24^th August 2017 the victim provided a statement in relation to this matter. On this day the victim conducted a pretext phone call ringing the defendant’s mobile number [ ].

    During the phone call the defendant acknowledged he was on the bus with the victim. The defendant was hesitant and talking about what happened. The defendant repeatedly asked the victim if she wanted to meet up with him.

    CCTV

    CCTV obtained from the Brisbane City Council the bus the defendant and the victim caught. CCTV is of good quality and is consistent with the victim statement. CCTV captures the defendant enter the bus after the victim and sit beside victim. CCTV captures the defendant leaning over and trying to kiss the victim. The victim is observed to recoil back and push the defendant away. Following this defendant is continuing to try and touch the victim during the bus trip.

    Upon the victim attempting to exit the bus, the defendant is observed to reach his hand under the victim shorts and grab the victim’s backside.

    CCTV obtained from King George Square that shows the defendant running after the victim at the bus terminal consistent with victim statement.

    Arrest

    On 25^th August 2017 police contacted the defendant on mobile [ ] and made arrangements to meet the defendant. The defendant obtained legal advice and declined to participate in an interview. The defendant was arrested for sexual assault and transported to Brisbane City Watch House for processing.

    Police seized the Go card belonging to the defendant that was in his possession.

    Information from the Go card confirmed he was travelling on the bus from Paddington to King George Square on 16 August 2017.”

16. This information was put to the applicant in the manner required by section 359AA for his comment or response. The applicant at first maintained that he accidently touched the young woman’s back as she was exiting the bus. The Tribunal pointed out that this claim appeared to be contradicted by the complaint by the young woman and that the Court Brief indicated that her claim was supported by CCTV footage. The applicant eventually admitted that he had in fact “grabbed her ass” intentionally.

17. At first the applicant admitted that the young woman had not said “no” when he had asked her if he could put his arms around her. The Tribunal asked the applicant why he had put his arms around her once she had indicated that she did not wish for him to do so. The Tribunal also asked the applicant why he had continued to touch her arms and legs after she had pushed him away when he put his arms around her and kissed her. The applicant then said that the young woman had not said “no” when he had asked whether he could put his arms around her. He said that he had said that she did in the criminal proceedings because he had no evidence to prove that she had not said “no” to his proposition. He changed his evidence a number of times about whether she had said “no” before eventually admitting that she had said “no” to his proposition to put his arms around her before he proceeded to do so and then kiss her. He said that it was his “mistake” that he continued to touch her after this and also that it was his “mistake” that he “grabbed her ass.”

18. The Tribunal heard from the applicant’s sister, one of a number of people who had provided the Tribunal with character references for the applicant. The applicant’s sister indicated that the applicant had never been in trouble with the law before these events, that he had helped her and other family members to meet their financial obligations and that he would never commit another offence. The applicant’s sister indicated that the applicant had told her that he had kissed the young woman and touched her back but said that the applicant had not indicated whether or not the touching was intentional.

19. The Tribunal also heard evidence from the applicant’s uncle by telephone from India. The applicant’s uncle indicated that the applicant had been mentally stressed at the time of the offending and had recently separated from his wife. He said that the applicant had told him that he had tried to befriend a young woman on a bus. He said that the applicant had told him that he had observed that people in Australia would often greet each other by giving each other a hug and a kiss. He said that he therefore thought that it was socially acceptable for him to hug and kiss the young woman on the bus. The applicant’s uncle also indicated that the applicant had told him that he had accidently touched the young woman’s back when she was exiting the bus.

20. The applicant’s uncle indicated that the applicant had spent about a month in immigration detention in December 2017 and January 2018. He said that the applicant had learnt his lesson during this time and would not reoffend. The applicant’s uncle indicated that he had visited the applicant in detention and that he was remorseful and full of shame and could still not accept that he had committed the offences. The applicant’s uncle indicated that the applicant’s offences were minor offences and that this was reflected in the lenient sentence given to the applicant. The applicant’s uncle indicated that the applicant was a young man that had made a mistake and that he should be given another chance to remain in Australia.

21. The applicant indicated that he and his family members would suffer hardship if his visa remained cancelled. He said that his grandparents were old and of ill health and that they would be very disappointed if he was unable to complete his education in Australia. The applicant said that he wished to complete cookery and hospitality courses in Australia so that he could open a restaurant in India. He said that while he could study in India, he believed that Australian qualifications are better than those in India and would be better for his future. He also said that he wanted to open a restaurant serving Australian food and would be better served with an Australian cookery and hospitality education and experience in an Australian kitchen.

22. The Tribunal raised with the applicant that the psychologist report which was provided to the sentencing judge and which was provided to the Tribunal appeared to indicate that the applicant’s psychological state played a part in the offending. The psychologist report also indicated that the applicant needed immediate and ongoing treatment in relation to his psychological state. The Tribunal indicated that because his psychological state played a part in his offending, that he required treatment for his mental condition and yet had not undergone any treatment, this may indicate that his psychological state remained unchanged and that this may mean that there has been no reduction in the risk that he will reoffend.

23. The applicant indicated that he was willing to seek treatment for his mental condition. The Tribunal pointed out that the applicant had been aware of the report since December 2017 and yet despite being released from detention in mid-January 2018 had made no attempts to seek treatment.

24. The Tribunal also raised with the applicant its concern that because the applicant had attempted to downplay his offending for example by indicating that he had not intentionally grabbed the victim by the bottom and that she had not refused his request for him to put his arms around her, and because the applicant had repeatedly told the Tribunal lies about his conduct, the Tribunal was concerned that the applicant’s lack of acceptance of his offending may mean that he had not been rehabilitated and may re-offend if he remained in Australia. The Tribunal pointed out that the applicant also appeared to have told the same lie to his uncle, that he had accidently touched the young woman.

25. The applicant said that he would never re-offend and apologised for having lied to the Tribunal. He said that the reason he had lied was because he did not know what to tell the Tribunal in order to get the most positive outcome and so he told the Tribunal what he thought would give him the best chance of being successful before the Tribunal.

26. It appears that the threshold in section 116(1)(e)(i) is a particularly low one and that it is sufficient for the cancellation power to be enlivened that the presence of the applicant in Australia is or ‘may’ be a ‘risk’, or would or ‘might be’, a ‘risk’ to the health or safety of the Australian community or a segment of the Australian community.

27. Notwithstanding the apparent low threshold for enlivening the cancellation power, the Tribunal considers that the mere possibility that a person may or might be a risk to the health or safety of the Australian community or a segment of the Australian community absent any compelling evidence to support that assessment is insufficient to enliven the cancellation power. It could be said that any given person in the community ‘may’ or ‘might be’ a risk to the health or safety of the Australian community or a segment of the Australian community, but without any compelling evidence to support even the possibility of an actual risk, the cancellation power will not be enlivened.

28. The Tribunal considers that, in the current case, it is clear from the evidence from the Queensland Police when viewed with his lack of remorse, dishonesty with the Tribunal and lack of treatment for his apparent ongoing psychological issues which contributed to the offending, the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of the Australian community. The Tribunal does not accept that the applicant has “learnt his lesson” during his time in immigration detention. This is clear from his dishonesty before the Tribunal and his attempts to downplay the seriousness of his conduct.

29. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

30. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

1. The Tribunal has decided to affirm the Minister’s delegate’s decision to cancel the applicant’s subclass 500 visa.

2. The Tribunal is willing to accept that the applicant and his family members may experience disappointment and shame that the applicant’s visa was cancelled before he was able to complete a course in Australia. The Tribunal accepts that the applicant’s sister wishes for her brother to remain in Australia while she completes her studies and that the applicant has provided his sister with financial and other assistance during her time in Australia.

3. The Tribunal accepts that the applicant feels that his goal of running a restaurant in India serving Australian food may be better advanced by being able to complete cookery and hospitality courses in Australia and to gain practical experience in Australia in the preparation of Australian food. The Tribunal considers that these difficulties are in some ways mitigated by the fact that the applicant was studying in Australia for less than a year before his visa was cancelled, that he does not require Australian tertiary qualifications to start a restaurant in India and he there is no obvious reason why the applicant could not continue his studies in India. However, the Tribunal is still prepared to find that these considerations weigh against the cancellation of the applicant’s visa.

4. The Tribunal has also considered the applicant’s evidence that he was doing well with his studies before his visa was cancelled and the letters from American college which indicate that the applicant was meeting course progress and attendance requirements. This weighs against the cancellation of the applicant’s visa.

5. The Tribunal has considered that the applicant has psychological issues which need to be addressed with treatment. Although the Tribunal is willing to place some weight on this as a factor which weighs in the applicant’s favour given that he could presumably undertake this treatment in Australia, the weight is given to this consideration is not great seeing that the applicant has not, to this point, sought treatment and there is no evidence that the applicant could not seek treatment for these issues in India.

6. The Tribunal has considered that the applicant was feeling depressed and alone when the offending took place. Sexual assault and common assault are usually seen as crimes of violence and the Tribunal considers any assault, especially any sexual assault as a serious offence. However, the Tribunal accepts that given the events described in the Court Brief and especially given the lenient sentence given to the applicant that his offending fell at the lower end of the spectrum in terms of seriousness. The Tribunal considers that this is a mitigating factor in the determination of the level of risk and the seriousness of any risk faced by the Australian community.

7. The Tribunal has also considered the evidence of the applicant’s uncle and his psychologist that the applicant felt remorse for what he had done. The Tribunal has considered the applicant’s uncle’s evidence that the time the applicant spent in immigration detention has imparted on the applicant the gravity of his behaviour. The Tribunal has also considered the various character references that the applicant has provided from members of the community who know the applicant.

8. The Tribunal places little weight on the character references provided by the applicant. It became clear during the hearing that the applicant had downplayed the nature of his offending to the Tribunal. For example, at first the applicant claimed that he had not grabbed the applicant’s bottom but instead his hand had accidently touched the victims back as she was making her way to the exit of the bus. Another prominent example was that at one point the applicant insisted that his victim did not say “no” in answer to his request to put his arms around the victim. He subsequently admitted that these answers had been untruthful and said that he told the Tribunal what he thought would give him the best chance of being successful before the Tribunal.

9. Further, the applicant also told his uncle that he had not grabbed the applicant’s bottom but instead his hand had accidently touched the victims back as she was making her way to the exit of the bus. The Tribunal considers that if the applicant was untruthful with the Tribunal and his uncle about the nature of his conduct and tried to downplay his culpability, it is very likely that he did the same with the people who provided character references. It follows that it is very difficult to place any significant weight on their evidence about the applicant being of good character.

10. The fact that the applicant was dishonest with the Tribunal at the hearing and attempted to downplay the seriousness of his conduct also negates the applicant’s claims that he had learnt his lesson and accepted the seriousness of his conduct.

11. The Tribunal finds that the applicant presents an unacceptable risk to the safety of the Australian community. The Tribunal considers that the applicant’s lack of remorse, dishonesty with the Tribunal and lack of treatment for his apparent ongoing psychological issues which contributed to the offending, all support this view. The Tribunal finds that this consideration outweighs all of the other considerations which weigh against the cancellation of the applicant’s visa.

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

    DECISION

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

    Tigiilagi Eteuati

    Member