Giri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 3035

Giri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3035 (25 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3860

Re:Bigyan Giri

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:25 August 2021

Place:Sydney

The Tribunal affirms the decision made by a delegate of the Minister on 3 June 2021 to not revoke the mandatory cancellation of Mr Bigyan Giri’s student (subclass 500) visa.

............................[SGD]..............................

Dr L Bygrave, Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – student (subclass 500) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – best interests of minor children – other considerations – extent of impediments if removed – links to the Australian community – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501E

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 April 2021).

REASONS FOR DECISION

Dr L Bygrave, Member

25 August 2021

INTRODUCTION

1. The applicant, Mr Bigyan Giri, is 29 years old and a citizen of Nepal.

2. On 10 June 2019, the applicant was granted a student (subclass 500) visa (student visa). He arrived in Australia on 26 June 2019 and his student visa expires on 30 August 2021.

3. On 3 December 2020, the applicant was convicted in the District Court of New South Wales (NSW) of offences including ‘[s]exually touching another person without consent-T2’ and, on appeal, sentenced to 12 months imprisonment with a non-parole period of five months.[1]

   [1] Exhibit G-G3, pages 29-31.

4. The Department of Home Affairs (the Department) notified the applicant on 12 January 2021 that his student visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test on the following ground: he had a ‘substantial criminal record’ as defined in subsection 501(7) of the Act by virtue of having been sentenced to a term of imprisonment of 12 months or more.

5. On 18 January 2021, the applicant submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act and, on 3 June 2021, a delegate of the Minister[2] decided not to revoke the mandatory visa cancellation decision.

   [2] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.

6. On 12 June 2021, the applicant filed an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

7. The matter was heard in Sydney on 5 August 2021. The applicant attended the hearing and gave oral evidence by videoconference from Villawood Immigration Detention Centre.

   RELEVANT LEGISLATION AND POLICY

   The power to revoke a visa cancellation

8. Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of subsections 501(6) and 501(7).

9. Subsection 501(6) of the Act defines the character test. Relevantly, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 501(7). Subsection 501(7) of the Act provides that, for the purposes of the character test, a person has a ‘substantial criminal record’ if the person ‘has been sentenced to a term of imprisonment of 12 months or more’.

10. In accordance with subsection 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the person makes representations and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked. This is a discretionary power.

11. The applicant does not pass the character test in subsection 501(6) of the Act because his criminal record, which comprises a sentence of 12 months imprisonment (with a non-parole period of five months), meets the statutory definition of a ‘substantial criminal record’ in subsection 501(7) of the Act.

12. Consequently, subsection 501CA(4) of the Act requires that I consider whether there is another reason to revoke the original cancellation decision. The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500 of the Act.

13. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that these directions must be complied with. The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90) that commenced on 15 April 2021.

    Direction No. 90

14. Direction No. 90 provides guidance on how the discretion is to be exercised. Paragraph 6 states:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

15. The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation. These principles are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be  insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

16. Paragraph 7 of Direction No. 90 stipulates that, taking the relevant considerations into account, a decision-maker should give ‘appropriate weight’ to ‘information and evidence from independent and authoritative sources’ in applying the primary and other considerations, and generally give ‘greater weight’ to primary considerations than the other considerations. This paragraph also states that one or more primary considerations ‘may outweigh other primary considerations.’

17. Primary considerations are listed in paragraph 8 of Direction No. 90 as follows:

    1.protection of the Australian community from criminal or other serious conduct;

    2.whether the conduct engaged in constituted family violence;

    3.the best interests of minor children in Australia; and

    4.expectations of the Australian community.

18. Other considerations are set out at paragraph 9 of Direction No. 90 and include (but are not limited to):

    1.international non-refoulement obligations;

    2.extent of impediments if removed;

    3.impact on victims;

    4.links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT

19. Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that the Tribunal considers:

    (a)the nature and seriousness of the applicant’s conduct to date; and

    (b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

    The nature and seriousness of the applicant’s conduct to date

20. The applicant’s criminal record is set out in an Australian Criminal Intelligence Commission report dated 7 January 2021 and a District Court of NSW ‘Advice of Court Result’ report dated 22 December 2020. These documents show the applicant was convicted of the following offences and received sentences on 3 December 2020: ‘[e]nter building/land w/i commit indictable offence-T1’; ‘[s]exually touch another person without consent-T2’; and ‘[c]arry out sexual act with another without consent-T2’.[3]

    [3] Exhibits G-G3 and G-G6.

21. The applicant appealed the severity of his sentences and, on 15 December 2020, the appeal was allowed in part. The applicant’s convictions were confirmed by O’Brien J in the District Court of NSW and he was sentenced as follows:

    ·Offence: Enter building/land w/i commit indictable offence-T1. Court result: Community correction order: 18 months commencing 15/12/2020 concluding 14/06/2022. A supervision condition requiring the offender to submit to supervision by a community corrections officer.

    ·Offence: Sexually touch another person without consent-T2. Court result:  Imprisonment: 12 months commencing 13/10/2020 concluding 12/10/2021, non-parole period: 5 months commencing 13/10/2020 concluding 12/03/2021.

    ·Offence: Carry out sexual act with another without consent-T2. Court result: Community correction order: 12 months commencing 15/12/2020 concluding 14/12/2021. A supervision condition requiring the offender to submit to supervision by a community corrections officer.[4]

    [4] Exhibit G-G3, pages 29-30.

22. These convictions all relate to events that occurred between the applicant and a woman (who is named as ‘the victim’ in Court and NSW Police records) on 12 January 2020, which are set out in the agreed facts provided to the Court and summarised below:

    ·The applicant and the victim met via a social media forum in November 2019. They had consensual sexual intercourse on two occasions in December 2019.

    ·In the early morning of 12 January 2020, the applicant sent the victim text messages and attempted to telephone her between 12:09am and 2:10am. The victim arrived at her apartment at 12:38am, muted her phone and went to bed.

    ·The victim was asleep and woken by knocking on her front door; she asked, ‘who is it?’ and opened the door believing it was her neighbour needing assistance. The applicant was ‘at the door’ and ‘wedged himself through’ the front door. This comprised the offence – enter with intent to commit indictable offence, namely, intimidation.

    ·The applicant entered the victim’s apartment saying, ‘Don’t worry baby, I’m here for you’, and then grabbed the victim’s face with his two hands and they had the following exchange:

    A: ‘I was so worried about you’

    V: ‘How did you get in the building, what are you doing here?’

    A: ‘Don’t worry about that. I’m here for you. I haven’t seen you in three weeks. I missed you. I wanted to see you but you don’t let me come’.

    ·The victim noted the applicant was slurring his words and smelt of alcohol. After further words, the applicant became angry and took ‘hold of the victim around the head and neck’, and pushed her towards her bedroom. The victim told the applicant to ‘get out of her house’ and the applicant pleaded with her to stay. After the victim again asking the applicant to leave, he ‘pulled the victim’s head to his chest’, ‘bit her neck’, ‘grabbed the victim’s breasts really hard’ and ‘bit the victim’s left breast’. The victim ‘squealed in pain and told him to stop’. The applicant used his hand to ‘go into the victim’s underwear’, she ‘grabbed his hand and pushed it away’ and tried to ‘get away’. The applicant bit the victim’s right breast, which caused ‘more pain’. He then ‘squeezed the victim’s left breast hard again’, causing more pain. This comprised the offence – sexual touching without consent.

    ·The applicant stated, ‘I love you, you make me so horny’, unzipped the fly on his pants and pulled out his penis. This comprised the offence – sexual act without consent.

    ·The applicant and victim struggled further with the victim screaming at the applicant to leave and the applicant pleading to stay. The victim managed to open her front door and pushed the applicant out stating, ‘Get out or I’ll scream!’. She was eventually able to force the applicant out and closed and locked her door. The victim was ‘in shock and crying’ and then phoned the police.

    ·The applicant sent another message to the victim at 3:41am stating, ‘Hm Sorry Baby’.

    ·The victim was taken to hospital where she underwent a sexual assault investigation kit examination.

    ·The applicant was arrested on 5 February 2020 and declined to participate in an electronically recorded interview on legal advice.[5]

    [5] Exhibit G-G12, pages 72-75.

23. In Magistrate Kennedy’s decision on 3 December 2020, she described the applicant’s offending behaviour as:

    …nothing short of a woman being attacked in her own home. That is what this offence was. Yes, they had sexual encounters before. She was in her own home. She is entitled to make the decision she wants to make about who comes into her house and about what happens in her house.... Engaging in any sort of intimate activity, as soon as that woman says no, it is over. This victim made it very clear by not returning calls, by not returning text messages, by not returning any means of communication, by taking herself home, by getting in her bed in her building, which she was entitled to accept she would remain there alone for as long as she wished. That scenario…is nothing short of terrifying for a woman...

    I consider this to be, overall, a very serious example of sexual touching and the enter with intent is also an offence that is very broad in relation to what it covers. But coming in with that intention of intimidating her in her own home to hopefully achieve what was texted to her which was, you know ‘I feel like having sex now’, ‘I am coming over and I feel like having sex now’. Well, we do not live in that world and we have not for some time.[6]

    [6] Exhibit G-G4, page 35.

24. On 15 December 2020, O’Brien J considered an appeal against the severity of the sentences imposed by Magistrate Kennedy. He set out examples of the applicant’s offences of ‘sexual touching’ and stated:

    This is a serious example of the types of sexual touching that would come before the Local Court involving, as it did, a degree of physical force. This is not some inadvertent surreptitious touch, this is a deliberate, forceful touch involving fighting and squeezing. In my view it is a combination of all of those factors which put it in a category of case for which the purposes of sentencing would not be met by the imposition of an Intensive Correction Order…[7]

    [7] Exhibit G-G5, pages 39-40.

25. In considering sentencing, O’Brien J remarked:

    [The applicant] is a young man without any criminal history. He is aged 28. I accept that he is remorseful. I accept that he is contrite. I accept he has good prospects of rehabilitation. I accept that he is also a bright young man who has some ability and can no doubt make a contribution to his community in one way or another upon his release from custody. I accept that his prospects of rehabilitation are good.

    … In my view, the sexual touching matter is not something that can be dealt with without recording of a conviction and a sentence of imprisonment being imposed, and that is what I intend to do.[8]

    [8] Exhibit G-G5, page 40.

26. In relation to the nature and seriousness of the applicant’s conduct, I have also had regard to the ‘Victims Impact Statement’ dated 2 December 2020. The victim wrote that the incident has ‘led to a high amount of anxiety, panic, depression, self-isolation and self-harm’, and has ‘affected her ability to concentrate in all aspects of [her] life including work’.[9] She described a ‘paranoid debilitating sense of fear with the outside world worried that [she] could be attacked, stalked and followed’ and that her apartment, which used to be her ‘place of sanctuary became a triggering reminder’.[10]  The victim stated:

    …the impact demonstrates self-blame and feelings of guilt and shame; low self-esteem; suicidal attempts, ideation and self-harm; somatic symptoms; trauma-induced hallucinations; difficulties with emotional regulation and anxiety; detachment from others and isolation; disruption in basic trust; depression; interruption to career development and employment; anger; loss; fear and paranoid; weight gain, personal grooming and hygiene issues; low concentration and unsafe accommodation.[11]

    [9] Exhibit G-G13, page 76.

    [10] Exhibit G-G13, page 77.

    [11] Exhibit G-G13, page 78.

27. In a written statement dated 14 April 2021, the applicant acknowledged ‘there is no excuse for what [he] did’ but explained that his behaviour on 12 January 2019 was affected by being upset that his cousin had told his parents in Nepal about his ‘drinking and smoking habit’ and him becoming ‘drunk over the limit’ at a bar earlier in the evening.[12] He said that he was told to leave the bar by security and, as his bank account balance was ‘very low’, he thought he could stay at the victim’s apartment.[13] The applicant stated that he was able to enter the applicant’s apartment building by telling another tenant that his ‘friend’ lived there, and this tenant then let him into the building.[14] In describing his behaviour towards the victim, the applicant stated that he ‘touched [the victim’s] legs’, which culturally meant he was ‘looking for help’, he stopped when the victim said, ‘you’re hurting me’ and then ‘left the apartment’.[15]

    [12] Exhibit G-G17, pages 88-89.

    [13] Exhibit G-G17, page 88.

    [14] Exhibit G-G17, page 88.

    [15] Exhibit G-G17, page 89.

28. The applicant, in his oral evidence to the Tribunal, said that the victim had given him ‘mixed messages’ after they had consensual sex on the second occasion in December 2019. He provided limited recall of his behaviour on 12 January 2020, saying that he told the victim he ‘was not there for sex’, him ‘touching her legs’ was ‘asking for help’, and he recalled the victim telling him he ‘was hurting her’ but their previous sex had ‘been rough’. He also said that he did not know the ‘rules and regulations’ of Australia as he had only been here for six months and he did not ‘understand the meaning of consent’.

1. In considering the applicant’s written statement on 14 April 2021 and his oral evidence at the hearing, I note his recollection of his behaviour on 12 January 2020 appears to diminish the seriousness of his conduct as set out in the agreed facts provided to the Court.   

2. Having regard to the factors set out in paragraph 8.1.1 of Direction No. 90, I am satisfied the evidence shows the applicant’s conduct of violent and sexual crimes against a woman is viewed very seriously by the Australian government and Australian community. While I accept there is no evidence of any other offending by the applicant, I note that his conduct occurred about six months after his arrival in Australia.

3. I find that the nature and seriousness of the applicant’s conduct weighs very heavily against revoking the cancellation of his visa.

   The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

4. On 15 January 2020, the applicant was served an apprehended personal violence order for the protection of the victim, which prohibited or restricted ‘the behaviour’ of the applicant.[16]  This order was made for two years.

   [16] Exhibit R2, page 6.

5. In his request for revocation made on 18 January 2021, the applicant stated:

   I need a chance to prove that I am not the same person anymore, now the reformed me understands the law properly and also…the impacts it can have on other person if broken.[17] 

   [17] Exhibit G-G9, page 52.

6. The applicant further outlined that he was ‘highly intoxicated’ at the time of his offending; he wrote that he had been ‘clean of alcohol’ for a year and undertaken ‘alcohol counselling’ with his general practitioner.[18] He acknowledged the impact of his offending on the victim, stating ‘I feel very sorry for the trauma she has been going through’.[19]

   [18] Exhibit G-G10, page 64.

   [19] Exhibit G-G10, page 64.

7. I have also had regard to the following reports about the applicant’s behaviour and his likelihood of reoffending:

   ·A patient health summary report by Dr Fadi Hallani (general practitioner), which reported the applicant attended on:

   o11 November 2020 for ‘alcohol counselling’ and ‘stress’; and

   o1 December 2020 for ‘stress’ and to request a letter to the Court certifying he had alcohol counselling on 11 November 2020.[20] 

   ·A sentencing assessment report dated 1 December 2020 that set out the applicant’s family and social circumstances, education and employment, factors relating to his offending, and his responsivity. This report assessed the applicant at a ‘Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’.[21]

   ·A report by Ms Jenny Howell (psychologist) dated 14 December 2020 prepared for the purpose of the applicant’s matter before the District Court of NSW. Ms Howell assessed the applicant and opined the following in relation to his risk to the community of sexual reoffending and general offending, and his prospects for rehabilitation:

   It is my view Mr Giri exhibits a degree of insight into his decisions and behaviour that suggests he has the capacity and potential to address the factors associated with his offending and [has] excellent prospects for rehabilitation. He indicated his willingness to participate in treatment in custody if available to him or in the community…

   Mr Giri has an overall low risk of reoffending and good prospects for rehabilitation. His offences were opportunistic and he has no prior convictions for inappropriate sexual behaviour or for general criminal behaviour.

   Mr Giri’s risk of sexual reoffending was assessed with static and dynamic risk measures. His results on the Static-99R found his risk to be in the Average Risk Level. Assessment of his dynamic risk factors together with clinical assessment suggests his risk to reoffend is low and he has several protective factors including his willingness to participate in sexual offender specific treatment in custody or in the community with a suitably qualified practitioner.[22]

   [20] Exhibit R1, pages 11-13.

   [21] Exhibit R2, page 3.

   [22] Exhibit G-G18, page 102.

8. The applicant also filed references from two of his cousins who live in Australia, his cousin’s partner, and his two former housemates in Sydney. These statements, which were written between 1 April 2021 and 5 April 2021, acknowledged the applicant’s offending behaviour, reported that he has stopped consuming alcohol and noted his plans for rehabilitation.

9. Prior to the hearing, the applicant filed certificates for courses he had completed between 24 June and 7 July 2021 in emotional healing, stress management, drug and alcohol abuse, understanding addictions, goal setting, emotional intelligence, strategic planning, anxiety therapy, depression management, creative thinking, weight training, developing great social skills, interpersonal communication, social anxiety, mastering conversational skills, negotiation skills, dealing with difficult people, and domestic violence. The applicant told the Tribunal he completed these courses on-line at Villawood Immigration Detention Centre.

10. I accept the applicant is genuine in his attempt to reform himself, particularly in relation to his consumption of alcohol and seeking to understand his behaviour. I have weighed the evidence and accept Ms Howell’s detailed assessment that the applicant has a low risk of reoffending, albeit I note there is no evidence that he has participated in any specific treatment or rehabilitation for sexual offending.

11. In considering the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful that the nature and seriousness of his behaviour had a devastating impact on his victim and he continues to be subject to an apprehended violence order until January 2022. I also view any harm that would occur if the applicant engaged in further conduct of a sexual or violent nature to be an unacceptable risk to the community.

12. I am satisfied the primary consideration of protection of the Australian community weighs very heavily against revoking the decision to cancel the applicant’s visa.

    PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE APPLICANT

13. Family violence is defined in paragraph 4(1) of Direction No. 90 as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’.

14. There is no evidence before the Tribunal that the victim was a member of the applicant’s family and so I am satisfied the applicant has not engaged in conduct that constitutes family violence as defined in Direction No. 90.

15. I find that this primary consideration is not relevant to my decision.  

    PRIMARY CONSIDERATION 3 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

16. Paragraph 8.3(4) of Direction No. 90 lists the factors I must consider in relation to whether revoking the cancellation decision is in the best interests of a minor child affected by the decision. Relevant to this consideration are the nature and duration of the relationship between the child and the applicant, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role for the child.

17. A written reference from the applicant’s cousin dated 5 April 2021 noted that the applicant is the ‘maternal uncle of [her] 6 years old daughter and both of them get along very well’.[23] The applicant told the Tribunal that he lived with his cousin for three months when he first arrived in Australia and developed a relationship as ‘maternal uncle’ to his cousin’s daughter. He said he has not seen his cousin’s daughter for 18 months, but they speak on the telephone. 

    [23] Exhibit G-G26, page 116.

18. While I find this primary consideration weighs in favour of revoking the decision to cancel the applicant’s visa, I place limited weight on this consideration as the applicant does not provide a parental role in relation to his cousin’s daughter. 

    PRIMARY CONSIDERATION 4 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

19. Subparagraph 8.4(1) of Direction No. 90 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.  

20. In subparagraph 8.4(2), the Minister articulates that the Australian community expects that the Australian government can and should cancel a non-citizen’s visa if they raise serious character concerns through conduct, which includes serious crimes of a violent or sexual nature against women. Subparagraph 8.4(3) stipulates the expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’.

21. Subparagraph 8.4(4) of Direction No. 90 states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

22. Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes. I further note that subparagraph 5.2(4) of Direction No. 90 states that Australia has a ‘low tolerance’ of criminal or serious conduct by a person holding a limited stay visa or non-citizens who have participated in the Australian community for a short period of time.

23. I have set out the nature and seriousness of the applicant’s conduct and his intent to reform in paragraphs 19 to 40 above. I am satisfied that the applicant’s offending, which occurred after he had lived in Australia for only six months, was a ‘serious crime’ of a violent or sexual nature against a woman. I am also satisfied the applicant holds a limited stay visa that expires on 30 August 2021. Based on this evidence, I find the Australian community would have a very low tolerance of the applicant’s conduct and expect the Government to not allow the applicant to remain in Australia.

24. I am satisfied that this primary consideration weighs very heavily against revoking the mandatory cancellation of the applicant’s visa.

    OTHER CONSIDERATIONS IN DIRECTION NO. 90

25. Paragraph 9 of Direction No. 90 lists other considerations that must be taken into account in deciding whether to revoke the mandatory cancellation of a visa.

26. The other considerations relevant to the applicant are the extent of impediments if he is removed from Australia, the impact on victims, and the strength, nature and duration of his ties to Australia. For completeness, I am satisfied there is no evidence before the Tribunal that shows other considerations of international non-refoulement obligations and the impact on Australian business interests are relevant to these proceedings.

    Extent of impediments if the applicant is removed from Australia

27. The extent of impediments if the applicant is removed from Australia relies on his capacity to reside in Nepal. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider:

    ·the applicant’s age and health;

    ·whether there are any substantial language or cultural barriers, and

    ·any available social, medical and/or economic support available to him in Nepal.

28. The applicant is 29 years old and single. In his oral evidence to the Tribunal, the applicant said that he was educated to year 12 in Nepal and achieved a ‘high level’ of education. He described sustaining an injury to his head following a fall when he was a child, which required him to take medication to prevent blood-clots until he finished year 12. After school, the applicant attended university in India and completed a Bachelor of Computer Science and Engineering in June 2018. The applicant said that, while he was in India, he suffered from typhoid and kidney stones.

29. I accept the applicant’s oral evidence regarding his medical history. However, I place limited weight on this evidence because there is no verifying evidence from a medical practitioner or supporting evidence to show these conditions have any current effect on his health.

30. The applicant was born and raised in Nepal and is fluent in Nepali, English and Hindi languages. His immediate family (his parents, who are both teachers, and younger sister) continue to live in Nepal. I find no evidence of any language or cultural barriers to the applicant living in Nepal.

31. The applicant’s student visa was granted on 10 June 2019 and expires on 30 August 2021. He was studying for a Master of Information Technology (Professional Computing) degree; however, he stopped his study when he was taken into custody in December 2020 as he was unable to complete his exams. The applicant requested that his visa be extended beyond 30 August 2021 so that he can stay in Australia, complete his degree and gain work experience so that he is able to return to Nepal and find suitable employment. In response to questions from the Tribunal, the applicant accepted that he had not enquired at the university about whether he could complete his studies online from Nepal.

32. I am satisfied that there are some impediments with the applicant’s removal from Australia. These are the applicant not achieving his university qualification while in Australia and any consequences of this situation on him finding employment in Nepal. However, I find there are no health, language, cultural or social reasons that would adversely affect the applicant capacity to resume his life in Nepal.

33. I make these findings in the context that the applicant has lived for most of his life in Nepal, his immediate family live in Nepal and he came to Australia on a limited stay two-year visa. I note the applicant’s student visa expires on 30 August 2021 and, irrespective of any decision about the mandatory cancellation of his student visa, he would be required to depart Australia on or before this date.

34. On balance, I am satisfied this other consideration weighs neither for nor against revoking the decision to cancel the applicant’s visa.

    The impact on the victim

35. Subparagraph 9.3(1) of Direction No. 90 requires that I consider the impact of the section 501CA decision on members of the Australian community, including the victim of the applicant’s criminal behaviour.

36. At paragraph 26 above, I set out relevant details from the ‘Victims Impact Statement’ written on 2 December 2020. While I note this statement by the victim was prepared for the Court, and not for the purpose of the impact any revocation decision may have on her, it relevantly shows the applicant’s offending had a devastating impact on the victim. I note this is further supported by the applicant being served an apprehended personal violence order for a two-year period for the protection of the victim on 15 January 2020.

37. I find this other consideration weighs against revoking the mandatory cancellation of the applicant’s visa.

    The strength, nature and duration of ties to Australia

38. In considering the strength, nature and duration of the applicant’s ties to Australia, paragraph 9.4.1 of Direction No. 90 stipulates that I must consider any impact of the decision on the applicant’s immediate family members in Australia and I must have regard to:

    ·how long the applicant has resided in Australia, including whether he arrived as a young child, noting that:

    oless weight should be given where the applicant began offending soon after arriving in Australia; and

    omore weight should be given to time the applicant has spent contributing positively to the Australian community;

    ·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

39. The applicant came to Australia in June 2019 to undertake study for a Master of Information Technology (Professional Computing) degree. At that time, he was aged 27 years old. He committed his offences about six months after he arrived in Australia. In view of these circumstances, I place less weight on this consideration.

40. Although the applicant’s ‘immediate family’ (being his parents and sister) live in Nepal, he has relatives living in Australia. This includes two cousins, and the partner and child of his cousin. Both the applicant’s cousins and the partner of his cousin have provided written statements that acknowledge the applicant’s offending, state that this was not consistent with his past behaviour, outline that he has reformed and request he be given a second chance. While I accept these representations by the applicant’s family members, I place less weight as they are not members of his ‘immediate family’.

41. In his request for revocation dated 18 January 2021, the applicant stated he had been employed in aged care and had volunteered in a restaurant. He also filed a reference from his former housemates. While I accept that this demonstrates the applicant having social links with Australia, I place little weight on this evidence as there is no indication that the applicant’s past colleagues or his housemates being Australian citizens or permanent residents.

42. In view of the evidence and the applicant’s relatively short period of time in Australia, I am satisfied this consideration weighs neither for nor against revoking the decision to cancel his visa.

    CONCLUSION

43. I am satisfied that the first and fourth primary considerations weigh very heavily against the revocation of the mandatory visa cancellation and the second primary consideration is not relevant to this application. The third primary consideration weighs for revoking the mandatory cancellation of the applicant’s visa, although for the reasons I set out at paragraph 46, I place limited weight on this primary consideration.

44. In relation to the other considerations, I find the extent of impediments to the applicant if he is removed from Australia, and the strength, nature and duration of his ties to Australia weigh neither for nor against revoking the mandatory cancellation of his visa. I am also satisfied that the impact on the victim weighs against revocation of the mandatory visa cancellation.

45. I note paragraph 7 of Direction No. 90 states that primary considerations should generally be given greater weight than the other considerations. There is no evidence before the Tribunal that suggests this should not apply to the circumstances of the applicant.

46. Weighing all the relevant primary considerations and other considerations, I am satisfied there is not another reason why the original decision should be revoked.

    DECISION

47. The Tribunal affirms the decision made by a delegate of the Minister on 3 June 2021 to not revoke the mandatory cancellation of the applicant’s student visa.

I certify that the preceding 75 (seventy -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.................................[SGD]................................

Associate

Dated: 25 August 2021

Date(s) of hearing:	5 August 2021
Applicant:	In person
Solicitors for the Respondent:	Mr Cameron O'Sullivan, AGS