Ferdous (Migration)

[2018] AATA 2692

Ferdous (Migration) [2018] AATA 2692 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Farial Ferdous

CASE NUMBER:  1805782

DIBP REFERENCE(S):  BCC2017/4881292

MEMBER:Kira Raif

DATE:4 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 04 July 2018 at 4:48pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) visa – Risk to health safety and good order of the Australian community – Criminal charges – Assault occasioning actual bodily harm of partner – Visa applicant subject to an Apprehended Violence Order – Applicant denies having committed any offences – Degree of hardship – Financial investment in studies – Unable to complete course – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 359A, 501

Migration Regulations 1994 (Cth), Schedule 8 Condition 8564

CASES

Gong v Minister for Immigration [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 February 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Bangladesh born in January 1996. He was last granted a student visa in January 2015. On 6 February 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his written response to the Notice and his visa was cancelled on 23 February 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 26 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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). 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.

5. 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.

6. There is no definition of ‘risk’ in the Act or Regulations and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001). The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong v Minister for Immigration [2016] FCCA 561 at [41]).

7. As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk based on all of the information available to the Tribunal.

   Does the ground for cancellation exist?

8. The following information is recorded on the Departmental file and was the subject of the Tribunal’s s.359A correspondence to the applicant.

   a.   On 18 December 2017 the visa holder was charged by New South Wales police with the following offences:

   i.Common assault (dv)

   ii.Assault occasioning actual bodily harm (dv)

   b.    The police report advises that the sequence of events that lead to these charges occurred over two days and the alleged victim in this offence is the visa holder's former de facto partner, [Ms A]. The events occurred as follows:

   17 December 2017

   The alleged victim, [Ms A] discovered that the visa holder had been having an affair with her best friend. She took screenshots on his phone depicting conversations between the visa holder and her best friend.

   That evening, the alleged victim's friends came to the visa holder's house. The alleged victim showed her friends the text exchange between the visa holder and her friend that the visa holder was cheating with.

   At approximately 11 pm that evening, the visa holder returned home and the alleged victim went to the room adjoining their bedroom to confront the visa holder. The alleged victim had a flashlight with her as it was darker in the adjoining room.

   The visa holder asked the alleged victim to turn off the flashlight then punched the top of her arm with force. The alleged victim held her arm and asked the visa holder to stop hitting her.

   The visa holder moved forward to hit the alleged victim again, however her friend intervened.

   A verbal argument ensued between the visa holder, the alleged victim and her friends. The visa holder admitted to cheating and physically assaulting the alleged victim on previous occasions.

   The alleged victim and her friends returned to the bedroom while the visa holder remained in the adjoining room.

   18 December 2017

   The visa holder was at home with the alleged victim having a verbal argument. The visa holder attempted to remove a mobile phone off the alleged victim and broke her nose in the process.

   At 10.30 pm police were called to the visa holder and the alleged victim's address regarding a domestic incident.

   Police noted that the alleged victim had a bent and swollen nose and blood to the left of her face. She also had bruising to her face and arms.

   The alleged victim declined to disclose what occurred. When probed, she advised the police she had fallen down the stairs. However, police noted that there was no blood on the stairs, but there were blood pools on the bed and doona as well as blood stained tissues in the bin. Police also noted a cut and blood on the visa holder's right hand.

   The visa holder was offered the opportunity to participate in an electronically recorded interview, but declined.

9. The applicant provided a written response to the NOICC. In his statement the applicant refers to his studies for a Bachelor of Engineering at the Western Sydney University. The applicant states that he was in a de facto relationship with [Ms A] since 2014 and until she decided to move to another area. In December she found out that he had been unfaithful on a few occasions with her best friend and became distressed. She confronted the applicant about what she found out on his phone and he could not comfort her so he left the house when her friend arrived. Later that day he returned home under the influence of alcohol and stayed in another room while [Ms A] was with her friends. When she came into his room with a light, he pushed her hand away but there was no physical assault. On the following day [Ms A] had a difficult time accepting the relationship was over and she bought a bottle of whiskey. They drank and talked and [Ms A] had his phone. When he tried to grab his phone from her, she tripped over and fell down in the hallway and had a broken nose. He picked her up and carried her to the bedroom. He tried to stop the bleeding with his t-shirt. When her friends came, they blamed the applicant for assaulting her. [Ms A] asked her friends not to call the police but the police were called. He was charged and an AVO was issued. He pleaded not guilty. The applicant states that he abided by the AVO and has not been a risk to the health and safety of [Ms A] and he waits for the matter to be resolved in court. The applicant also outlined his personal circumstances.

10. The applicant also provided a statement from [Ms A] confirming the circumstances as set out in the applicant’s statement. [Ms A] states that she does not believe the applicant to be a threat to her. [Ms A] stated the same in her oral evidence to the Tribunal. The Tribunal notes, however, that s.116(1)(e) is directed at the Minister’s (or the Tribunal’s) satisfaction and not at that of the alleged victim. It is not sufficient to state that [Ms A] does not feel threatened by the applicant. Whether the applicant’s presence in Australia poses a risk is a finding of fact for the Tribunal.

11. The applicant provided a number of statements and other evidence to the Tribunal on 19 June 2018. The applicant states that he was granted a Bridging E visa with the Tribunal (differently constituted) finding that he would comply with condition 8564 among others. The Tribunal acknowledges that finding but it is not binding upon the present Tribunal and the issue of whether or not the applicant will comply with visa conditions is quite different to the issue that arises for determination in the present review. The applicant states that the Department decided not to proceed with the refusal of his Bridging E visa under s.501. Again, considerations that apply under that section, and in relation to a relatively short term visa such as a Bridging E visa would be different to the issues that arise in the present review.

12. The applicant argues that his presence in Australia is not a risk and that the incident occurred due to a misunderstanding and an argument with [Ms A]. The applicant notes that the AVO does not preclude him from contacting the partner. The applicant provided to the Tribunal a copy of the interim AVO which prohibits the applicant from assaulting, threatening, stalking, harassing, intimidating [Ms A] and destroying or damaging her property. It also prohibits the applicant from going within 100 meters of any place where [Ms A] lives or works.

13. The applicant described the events that led to the charges in his oral evidence to the Tribunal. The applicant told the Tribunal that [Ms A] was upset about his cheating. He said the charges were laid on the evidence of the friends and the police ‘pressurised’ the friends and the friends said that he punched [Ms A] which was not true. The applicant told the Tribunal that on the first night, [Ms A] shone a light at his face and he pushed her hand away but that is all he did. He did not punch her. The Tribunal is mindful that the police report is entirely different and refers to the applicant holding [Ms A]’s hand and punching her, with [Ms A] asking him to stop. The applicant said that the police record was not true. He said he pushed [Ms A]’s hand away but that was reasonable. The applicant said that the rest was made up by friends who were trying to separate them. The Tribunal referred to the police report which had a fairly detailed description of the event, including the holding of the torch (which the applicant and [Ms A] agreed took place) and him holding her hand and punching her hand. The detailed description of the event would suggest it was recorded by someone who observed it. The applicant conceded that there was bruising on [Ms A]’s hand but he said the medical report indicates the bruising was from holding the hand and not from punching. The applicant said that he held [Ms A]’s hand because she was trying to harm herself.

14. The applicant said that on the second day, [Ms A] was still upset about the relationship breakdown. She was drinking whisky and he joined her. At some point [Ms A] grabbed his phone to read his messages. They had an argument. He tried to pull the phone off her but she tried to run away. They were both quite drunk. As she tried to run away, she tripped in the corridor. The applicant was not sure why the police report refers to her falling down the stairs, he thought maybe [Ms A] told the police she fell on the stairs but she could not remember because she was drunk. The applicant said that he had the cut on his hand because [Ms A] scratched him when they argued. The applicant said he did not call an ambulance or a doctor and did not take [Ms A] to the hospital when she broke her nose because he was drunk and things happened too quickly.

15. The applicant said the day after the second incident they moved to different places. The applicant said that he and [Ms A] maintain contact and they talked about the case and her friends’ evidence. [Ms A] told him that her friend made up evidence and they are not in touch anymore. The applicant said that he and [Ms A] do not plan to have a relationship and she would not forgive him. They talk to each other but he does not see her socially or in person.

16. The applicant told the Tribunal that he does not believe his presence in Australia is or may be a risk to anyone. The applicant referred to the AVO and states that he follows the AVO and intends to do that in the future. The applicant said that there is no final AVO and the interim one will be in place until the criminal matter is resolved.

17. [Ms A] also described in her oral evidence to the Tribunal the events in December 2017 that led to the charges. She said that the applicant did not harm or hit her and was never violent towards her. She said that they had been together for four years and the applicant never tried to harm her. [Ms A] said her friends tried to separate them and the information they gave to the police was not correct. She has since prepared an affidavit for the police. Subsequent to the hearing, the applicant provided to the Tribunal [Ms A]’s discharge summary from [the] Hospital. [Ms A] was taken to Emergency by the police following the alleged incident on 18 December 2017. Significantly, the medical report indicates that [Ms A] ‘suggested that previous episodes of abuse may have occurred, not always physical in nature, but was not willing to disclose the frequency or severity of these events’. On 2 July 2018 the applicant provided to the Tribunal a further unsigned declaration from [Ms A] concerning the medical report. Essentially, she states she was drunk and did not have a clear memory of her conversation with the doctor and did not recall telling her that the applicant assaulted her. The Tribunal has formed the view that the information contained in the medical report which the applicant presented to the Tribunal contradicts the applicant’s and [Ms A]’s evidence to the Tribunal that there has never been any other violence or abuse in their relationship and brings into question [Ms A]’s motivations and the truthfulness of her present evidence.

18. The Tribunal acknowledges that the applicant denies having committed any offences and he has pleaded not guilty. The Tribunal acknowledges the applicant’s and [Ms A]’s evidence that the information recorded by the police was obtained on the basis of the false claims made by friends and such information is not true. The Tribunal finds these claims problematic, firstly because the police report contains quite specific and detailed descriptions of events at least some of which appear to be consistent with the applicant’s and [Ms A]’s own evidence – such as the holding of the torch and the pushing of the hand resulting in bruising – and the Tribunal does not accept that the friends had entirely fabricated other aspects of the evidence. Secondly, and more problematically in the Tribunal’s view, is the fact that the matter remains unresolved before the courts. Despite the claimed withdrawal of the claims by all witnesses and [Ms A]’s own affidavit evidence, there is no suggestion that the charges have been dropped or that there is any intention to drop the charges.

19. It is also significant, in the Tribunal’s view, that there remains an AVO in place. The AVO prohibits the applicant from assaulting, threatening, harassing, stalking, intimidating [Ms A] or destroying or damaging her property. The Tribunal acknowledges the applicant’s evidence that he has complied with the Order and intends to continue to do so in the future. The fact that the AVO was issued, and remains in place, indicates that an assessment has been made that the applicant may be a risk to [Ms A] and that a formal order was required to protect [Ms A] and prevent harmful conduct.  

20. It is of some concern to the Tribunal that the applicant appears unaware of his bail conditions. These would have been explained to the applicant when the bail was granted and the applicant’s inability to recall bail conditions may suggest his lack of interest in compliance. It is also of concern to the Tribunal that the applicant has discussed his criminal case, including the evidence, with [Ms A], who is the alleged victim in the proceedings. Although [Ms A] denied this in her evidence to the Tribunal, the applicant himself confirmed that he did discuss the matter with [Ms A]. The Tribunal acknowledges the applicant’s evidence that [Ms A] obtained independent legal advice when preparing her affidavit, nevertheless, it is concerning that the applicant thought it appropriate to discuss the witness evidence with the alleged victim during his trial.

21. The applicant denies that he has committed any violence towards [Ms A] and the alleged victim, as well as a number of others, provided statements to the Tribunal. The Tribunal has considered that evidence. Despite it, the Tribunal is also mindful that the police report indicates that as a result of the incidents, [Ms A] had bruising to her face and arm and a broken nose. The applicant concedes this information while denying the injuries were caused by his conduct.

22. The Tribunal accepts the applicant’s evidence that his relationship with [Ms A] has ended and that they no longer live together, even though they maintain some contact. The Tribunal accepts that there may be no benefit to [Ms A] in offering her evidence that the incident did not involve violence and that the injuries were not caused by the applicant. However, the Tribunal has also had regard to the fact that a formal AVO has been issued and remains in place, that the charges have not been withdrawn and that the criminal matter remains on foot with no suggestion of the charges being withdrawn. The Tribunal places weight on the parties’ evidence that during the incident, there appears to have been physical contact which resulted in [Ms A] sustaining bruising, the applicant admits to having ‘pushed’ her arm and having tried to forcefully remove his phone from [Ms A]. [Ms A] also suffered from a broken nose or displaced cartilage and the evidence in relation to this injury is confused. The police report refers to [Ms A] falling down the stairs. The applicant’s and [Ms A]’s evidence is that she probably fell in the corridor and [Ms A] told the Tribunal she was too drunk to remember what happened (which may suggest that anything could have happened). The combination of these factors causes the Tribunal to conclude that the presence of the applicant in Australia may be a risk to [Ms A]. While the Tribunal acknowledges the applicant’s and [Ms A]’s evidence that they are no longer in a relationship, live in different areas and have little contact, the Tribunal has formed the view that there is a fair amount of contact between the applicant and [Ms A], given the consistency of their evidence about the events in question and the applicant’s evidence to the Tribunal that they did discuss such evidence. the Tribunal does not accept the parties lead entirely separate lives, as they suggest.

1. The Tribunal is satisfied that the presence of the visa holder in Australia may be a risk to the safety of an individual or individuals. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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

2. 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’.

   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 purpose of the applicant’s travel and stay in Australia on a student visa is to enable him to pursue studies in Australia. In his written response to the NOICC the applicant refers to being a student at Western Sydney University in an engineering course. In his written submission to the Tribunal of 12 April 2018 the applicant notes that he has not completed the course and has a compelling need to remain in Australia to complete the course, or he will lose the investment he and his family made in his education. The applicant states in his response to the NOICC that his brother has also completed studies in Australia and his parents invested their life savings to enable him to pursue his studies. The applicant told the Tribunal that he completed a Diploma of Engineering and is enrolled at the University of Western Sydney and will be commencing in July 2018. He will be doing a Bachelor of Engineering, which is a three year course. The applicant subsequently provided to the Tribunal evidence of his enrolment. The Tribunal accepts that if the applicant returns to his study, he will be able to fulfil the purpose of his travel and stay in Australia. The Tribunal acknowledges that the applicant’s ongoing study may result in his need to remain in Australia.

   The extent of compliance with visa conditions

3. There is no information before the Tribunal to indicate the applicant has not complied with visa conditions.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

4. In his written evidence, the applicant outlined the hardship that may be caused to him and his family by the cancellation in his response to the NOICC. The applicant refers to the sacrifices his family has made to enable him to study in Australia. The applicant states that his whole life would be a ‘letdown’ if he fails to accomplish what he came here for and it would affect his career and put his academic progress ‘on a halt’. The applicant claims that it would affect his academic progress, mental health and the family’s financial position. In his written submission to the Tribunal of 12 April 2018 the applicant also states that he and his family would lose their investment in terms of money and effort and this would cause psychological and emotional distress. The Tribunal is prepared to accept that this may be the case. The Tribunal accepts that the applicant wishes to complete his studies, and that considerable funds have been spent to enable him to do so, although the Tribunal is mindful that even if he is unable to do that in Australia, the applicant may have other opportunities to pursue study in his home country or any other country, so the Tribunal does not accept that the applicant’s future would be ruined if he cannot complete his present course. as for the family’s financial position, while the Tribunal accepts that considerable funds have been spent to enable the applicant to study in Australia, the applicant has not established that funds would not be available for future study and his willingness to enrol in a course here may indicate that the applicant does have access to funds for future study.

5. The applicant told the Tribunal in oral evidence that he has invested a lot of funding into his studies and put a lot of effort into completing his studies. It was hard for him to cope with the new life in Australia. If his visa is cancelled, it would impact on his career and would prevent him from getting a bachelor’s degree and that would affect him psychologically. There is no evidence, however, that if the applicant’s student visa is cancelled, he would be unable to complete his studies elsewhere, even if he does not get full credit, and the Tribunal is not satisfied that the applicant would be unable to fulfil his career aspirations, or complete his studies, as a result of the visa cancellations. The Tribunal accepts that it may be difficult for the applicant to obtain another student visa if his visa is cancelled, but contrary to the applicant’s submission, there is no evidence other than the applicant’s mere assertion that he would be unable to obtain a visa for any other country or complete his studies in his own country and subject to any exclusion period, the applicant will be eligible to make another application for an Australian student visa in the future.

6. The Tribunal accepts that hardship would be caused to the applicant and his family if the visa is cancelled because the cancellation of the visa is likely to affect the applicant’s ability to study in Australia. The Tribunal does not accept that without the Australian visa, the applicant cannot obtain a bachelor degree.

   Circumstances in which ground of cancellation arose

7. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to the safety of another person. The applicant told the Tribunal that he is a law abiding person and does not have any problems with the law in Australia or Bangladesh. The applicant claims he has not hit his former partner in any way but tried to stop her from self-harming.

   Past and present behaviour of the visa holder towards the Department

8. Nothing adverse is known about the applicant’s behaviour towards the Department.

   Whether there would be consequential cancellations under s.140

9. There are no persons who would be subject to consequential cancellation.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

10. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. In his submission of 3 July the applicant states that if his visa is cancelled, his bridging visa may also be cancelled and while that is not necessarily the case, the Tribunal accepts that the cancellation of the student visa is likely to lead to the applicant’s detention. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

11. The applicant told the Tribunal that if the visa is cancelled, he would be detained and he would be unable to communicate with his criminal lawyer and defend himself in the criminal proceedings. The Tribunal accepts that communication may be more limited if the applicant is detained, however, the Tribunal does not accept that detention would have any meaningful adverse effect on the applicant’s ability to communicate with his criminal lawyers because in the Tribunal’s view, criminal lawyers would be well used to dealing with clients in detention and would have processes in place to deal with such situations. The applicant does not claim that he has been unable to effectively represent himself in the criminal proceedings while he was in detention until his recent release.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

12. The applicant’s evidence to the Tribunal is that there are no children who would be affected by the cancellation and the applicant does not claim that Australia’s non-refoulement obligations would be breached as a result of the visa being cancelled.

13. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view, for the reasons stated above, that the applicant’s presence in Australia may be a risk to the safety of another person. The Tribunal accepts that the applicant plans to continue with his studies, has enrolled in a course and will thereby fulfil the purpose of his visa. The Tribunal accepts that considerable hardship may be caused to the applicant and his family by the cancellation of his visa because he may not be able to complete his studies in Australia, will lose funds and may feel that his earlier study has been wasted, although the Tribunal does not accept the applicant’s evidence that he would be unable to pursue his study elsewhere. The Tribunal accepts that the applicant appears to have complied with the conditions of his visa and has been cooperative with the Department. The Tribunal has given due weight to the evidence of [Ms A] and other ‘friends’ who provided various statements to the Tribunal. The Tribunal accepts that there are circumstances which weigh against the cancellation.

14. Against these considerations, the Tribunal notes that the charges that have been laid in relation to the applicant are serious and involve violence against another person. The applicant is also the subject of an AVO, so there are formal arrangements in place for the protection of the alleged victim.

15. There are no consequential cancellations as a result of the applicant’s visa being cancelled and Australia’s international obligations would not be breached as a result of the cancellation.

16. Having considered the totality of the applicant’s circumstances, the Tribunal has formed the view that the nature of the charges and of the alleged conduct outweigh the reasons for not cancelling the visa. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Kira Raif
    Senior Member