Gonchigsuren (Migration)

[2019] AATA 4070

Gonchigsuren (Migration) [2019] AATA 4070 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zorigtbaatar Gonchigsuren

CASE NUMBER:  1909668

HOME AFFAIRS REFERENCE(S):           BCC2018/3774890

MEMBER:Melissa McAdam

DATE:13 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2019 at 1:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – common assault – contravene Apprehended Violence Order – consideration of discretion – seriousness of breach – decision under review affirmed

LEGISLATION
Crimes Act 1900 (NSW), s 61
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 141
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling a visa applies to the applicant. 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. Section 116(1)(g) of the Act sets out the following:

   Section 116 Power to cancel

   (1)   Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

             (g)  a prescribed ground for cancelling a visa applies to the holder.

4. Regulation 2.43(1)(oa) sets out the following:

   REG 2.43  Grounds for cancellation of visa (Act, s 116)

   (1)  For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

   NOICC

5. On 14 March 2019 the Department delegate provided a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa to the applicant.  The following information was included in the Notice:

   -NSW Police had advised the Department that on 5 February 2018 the applicant was charged for assaulting his spouse.

   -On 6 February 2018 a provisional Domestic Violence Order (DVO) was issued to protect his spouse from the applicant.

   -On 13 March 2018 the applicant was charged and arrested for contravening the DVO.

   -On 14 March 2018 the applicant was granted bail and ordered to strictly comply with the enforced DVO.

   -On 23 August 2018 an Apprehended Violence Order (AVO) was served on the applicant by the Local Court, protecting the applicant’s spouse and valid until 22 August 2020.

   -On 9 October 2018 the following pending charges were finalised in the Local Court:

   oCommon Assault (Domestic violence) on 5 February 2018 – Community Corrections Order, commencing on 9 October 2018 and concluding on 8 October 2020, for 70 hours community service work.

   oContravene prohibition/restriction in AVO on 13 March 2018 - Community Corrections Order, commencing on 9 October 2018 and concluding on 8 October 2020, for 50 hours community service work.

   -Because of these convictions the applicant’s Student visa is liable for cancellation consideration under s.116(1)(g) of the Act using grounds in Regulation 2.43(1)(oa) of the Regulations.

6. The delegate referred to information in its file from the NSW Police Liaison Unit  setting out details of the applicant’s offences, convictions, and sentencing.

   Response to NOICC

7. On 20 March 2019 the applicant wrote to the delegate by email, in summary stating:

   It was a misunderstanding between he and his wife. She called the police and lied because she was angry.  Then his wife told the police that what she had said was untrue, but he still went to trial which does not seem right to him.  He was told he and his wife should not be together and were prohibited from meeting.  His wife was pregnant so he had to take care of her.  On 13 March 2018 it was assumed he was breaching his AVO.  He thinks that is unfair.  He is currently studying a language course.  He really likes the teaching system here and he loves Australia. He would like a last chance and help to fulfil his dreams.

   Delegate’s Decision.

8. The applicant provided a copy of the delegate’s Decision Record. 

9. In the Decision Record the delegate referred to the applicant being convicted of two offences in NSW, namely, common assault (Domestic violence) on 05 February 2018; and  Contravene prohibition/restriction in AVO on 13 March 2018.  The delegate decided to cancel the applicant’s Student visa.

   Tribunal Hearing

10. The applicant appeared before the Tribunal on 1 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages. The following is a summary of the information the applicant provided at the hearing:

    a.He confirmed that he had been convicted of a criminal offence and he understood this indicated that the ground for cancellation existed. 

    b.He is no longer in a relationship with his wife.  She now lives with someone else. They stopped living together after his Court hearing.

    c.He last had contact with his wife a week before the Tribunal hearing. She asked him whether or not she should attend his Tribunal hearing.  He told her she should not attend.  He told her this because she lied during the previous police hearing.

    d.His wife wanted to attend the Tribunal hearing because she said she had something to say to fix the situation, she would say that he is not a person who would commit an offence.

    e.The Tribunal asked the applicant if this meant she wanted to come to the Tribunal hearing to support him and he replied yes. However he does not want to see her because she is living with someone else.

    f.He has no idea about his wife’s situation now. They have stopped seeing each other. He does not know how she supports herself.  When they were together he provided the financial support.

    g.He has a visa with permission to work so he is working in construction to support himself.

    h.He really wants to stay in Australia.  When he first came here he wanted his wife to study but after the police matter he started to think that he wants to study.  He wants to do this in Australia because he wants to study English and the education system is better in Australia than in Mongolia.

    i.He and his wife also want their daughter to come to Australia to live and study.  They had planned to bring her here but then the police matter happened.

    j.He does not want to return to Mongolia to be with his daughter because he can go back there anytime and at his young age he wants to study.  He also would like to bring her here.  But if his visa remains cancelled he will go back to Mongolia and be with her.

    k.He was studying but has stopped. He studied General English at the Sunshine Coast International College, between May 2018 and May 2019.  He finished and passed the course but he failed some subjects.  He will provide his academic transcript from the course to the Tribunal by the end of the week.

    l.He plans to study Business Administration if he remains in Australia. His English is not yet good enough to complete such a course but it is getting better.  He wants to work as a Business Administrator in Mongolia. The Tribunal asked the applicant if it would be possible for him to do such work in Mongolia without studying in Australia and he replied yes there is some possibility.  He doesn’t have a full understanding of what Business Administration is but he believes it will help guide him to start a business.

    m.The Tribunal put to the applicant that his visa was due to expire in May 2019. The applicant responded that he understood this but he wants to apply for a new Student visa , and bring his daughter to Australia.  Even if there is only a small chance of being granted a visa he still wants to try.

    n.His parents, three younger siblings and daughter are living in Erdenet, Mongolia.  He has a cousin who lives in Wolli Creek in Sydney, Australia.

    o.If he returns to Mongolia his life will continue as usual. He will try to find a job.  When he lived there he spent time with his family and friends. He had a business, installing alarms, when he lived in Mongolia.  It is possible for him to resume such work in Mongolia but he would like to improve and expand his business.

    p.If he has to leave Australia he will lose the chance to study. There is no other problem for him.

    q.The Tribunal asked him about the circumstances of his visa cancellation. He responded that he thinks he should have been more careful and responsible.  He  argued with his wife. She became really angry and called the police.  The police came and she lied that he choked her and hit her.  He said to her that she lied and he will just wait until the police come.  When the police arrived he just listened to what his wife said.  He understands that Australian regulations and laws are really strict. The police said even if you didn’t hit her you said bad things about her so you are guilty for abusing her with words. He did 20 hours volunteer work.

    r.He thinks he is responsible for saying bad things about his wife and making her angry. It is the first time he has become involved with the police. He was shocked and did not want to get involved with police again. He was never involved with the police in Mongolia. 

    s.There was no reason for his wife to be fearful of him.  She lied and made up things.  It is his wife’s fault. Afterwards she wanted to say she lied but the police said everything was settled and the hearing was scheduled.

    t.After his arrest he returned to the house to cook and feed his wife because she was pregnant. But he did not sleep there.  He lived in Wolli Creek with two Mongolian friends.  He is now living in Arncliffe.  After he breached his bail conditions, the conditions were changed so that he and his wife could meet.

    u.He plans to study and get the chance to work in Sydney as he did in Mongolia.

    v.There are no other reasons why he does not want to return to Mongolia. He has been told his moral character is below standard and he feels really strongly against this.  He would like to prove this wrong. He will promise he is a good person.

    w.His daughter lives with his parents. This year she is going to school.  She does not have any problems in Mongolia.

    x.He has some Mongolian friends in Sydney. They are students. They are men. He knows some Mongolian women socially but not as friends. He has no problems with them.

    y.He submitted copies of the following documents:

    i.The applicant’s Mongolian Police Check record

    ii.English translation of the applicant’s Mongolian Police Check record

    iii.The applicant’s Mongolian Citizen Identity Card.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Does the ground for cancellation exist?

12. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant, namely that the Minister is satisfied that the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory.

13. The evidence before the Tribunal clearly indicates that the applicant has been convicted of an offence against a law of NSW, Common Assault (Domestic violence), s.61 NSW Crimes Act 1900; and Contravene prohibition/restriction in AVO, s.141 NSW Crimes (Domestic and Personal Violence) Act 2007. The applicant has also conceded and confirmed he has been convicted of offences in NSW.

14. On the evidence before it the Tribunal finds that the applicant has been convicted of an offence against a law of NSW.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department's Procedural Instructions (previously known as 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

17. The applicant came to Australia as a dependent on his wife’s Student Visa. While together  in Australia she has studied and the applicant worked to support them both. On the evidence before it, the Tribunal is satisfied that the applicant’s original purpose to travel to and stay in Australia was to be with his wife and to support her study.

18. The applicant is now estranged from his wife and they are both living independently of each other.  He gave evidence that he is no longer supporting her.  The applicant spoke of anger with his wife and stated he no longer wants anything to do with her, indicating that current prospects of reconciliation are poor.  The Tribunal therefore considers that the original purpose for the applicant’s travel to Australia is no longer in effect.

19. During the Tribunal hearing the applicant stated he now wishes to stay in Australia for the purpose of his own study, and to pursue his hope to bring his daughter to Australia.  He stated that he believed study in Australia would help him with his business career in Mongolia, and that the education system in Australia is better for both himself and his daughter.

20. The Tribunal accepts that the applicant wishes to stay in Australia but it is not satisfied that he has demonstrated any particular need to remain here. As he conceded he will be able to conduct business in Mongolia without an education qualification from Australia.  He also conceded that he may not have sufficient language skills to successfully complete a business studies course in Australia.  Although he has passed an introductory General English course he admitted to failing some of the course subjects. 

21. Further, he stated that his daughter has no particular problems in Mongolia that would require her to come to Australia.  It would also be a potentially difficult, lengthy and uncertain process to obtain a visa for his young daughter to come to Australia to study.  The applicant has stated that if he is not given a visa in Australia he will return to Mongolia to be with his daughter.  On balance it would appear that neither his nor her needs are substantially advanced by the applicant’s continued stay in Australia.

    The extent of compliance with visa conditions

22. There is nothing in the evidence before the Tribunal to indicate that the applicant has not complied with his other visa conditions. The Tribunal therefore accepts he has and gives this factor weight in the applicant’s favour.

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

23. When asked what problems the applicant would have if his visa remained cancelled he responded he would not have the opportunity for further study in Australia and to bring his daughter to Australia. He stated there would be no other problems and no other reason why he could not return to Mongolia.

24. The applicant has not provided the Tribunal with any documentary record of his enrolment in and completion of an English language course in Australia.  However the Tribunal accepts the applicant’s oral evidence that he did enrol in such a course.  It also gives him the benefit of the doubt he successfully completed the course despite concerns that the applicant has not provided the promised confirmation of this.

25. The Tribunal also notes that the applicant’s visa would have ceased to be in effect by now, even if it had not been cancelled. By setting aside the cancellation the applicant will not hold a Student visa but he would be able to apply for one. He would then have to meet the visa criteria to be granted the visa.  It is unknown whether or not the applicant would be successful in such a visa application.

26. Cancelling the applicant’s visa therefore deprives the applicant of an opportunity to apply for a Student visa, which subsequently he may or may not receive.

27. The Tribunal considers that depriving the applicant of a possibility to apply for and be granted a Student visa and permitted to study in Australia a hardship, but one of low scale.

28. As he stated a lack of education in Australia will not prevent him being able to resume business activities in Mongolia. It may however lessen his ability to expand a business that he starts.  The Tribunal accepts there is nothing to indicate the probability of this but it is a possibility. The Tribunal considers the possibility of this is a hardship, but also one of low scale.

29. The applicant’s desire to bring his daughter to Australia to study is also noted. However his return to Mongolia does not prevent an application for a Student visa being lodged by her or on her behalf.  The Tribunal does not consider any hardship is caused to the applicant’s daughter’s possibilities of being granted a visa to study in Australia, by the applicant’s return to Mongolia.

    The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

30. The applicant’s visa was cancelled as a result of his two convictions under NSW law.  During the hear he stated his belief that his wife was mostly responsible for the circumstances leading to those convictions, and that his responsibility was comparatively lessor.

31. It is not for the Tribunal to determine the soundness or otherwise of the applicant’s criminal convictions.  There is also a lack of available evidence to enable the Tribunal to make any such determinations.

32. The circumstances indicate an existing level of anger and acrimony in the relationship at the time the applicant’s wife called the police to their residence.  The applicant concedes the  situation was heated and he said ‘bad words’ to his wife.  While the applicant disputes the facts of conviction for assault the Tribunal does not view the totality of the circumstances as beyond his control.  There has been no reconciliation and the relationship remains over.  The Tribunal views the applicant’s conviction for common assault as a very serious matter.  As it stands, the circumstances of this incident, and the applicant’s reluctance to take appreciable responsibility for the incident, do not weigh in his favour

1. The applicant states that he breached his AVO in order to assist his wife, at her instigation.  Other information in the department’s file, including the police statement of facts, support the applicant’s contention. The police statement also refers to the applicant’s wife recent miscarriage and a conversation in which she stated needed the applicant’s support at the time.  The Tribunal also notes that the day after this incident the applicant’s bail conditions were varied  by the Local Court  to remove the prohibition on the applicant and his wife having contact. 

2. Breaching an AVO is a very serious matter.  However the Tribunal is of the view that the applicant’s intentions and his wife’s needs also form part of the circumstances to be considered. The Tribunal finds that these aspects of the circumstances are favourable to the applicant.

   The past and present behaviour of the visa holder towards the Department

3. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department. The Tribunal gives this factor some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s.140

4. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

   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

5. The cancellation of the applicant’s visa means that he could potentially become an unlawful non-citizen liable for detention and removal from Australia. However he has stated he is willing to return to Mongolia if his visa remains cancelled, and thereby avoid the risk of detention and removal. The applicant would also be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled

   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

6. On the evidence submitted the applicant’s daughter lives with his parents in Mongolia and he would be returning to her.  The Tribunal considers her interests are served by the applicant’s return to her.

7. The applicant has expressed no reason to fear return to Mongolia. There is nothing on the evidence before the Tribunal that would suggest the applicant’s return to Mongolia would be in breach of non-refoulement obligations.

8. The evidence before the Tribunal does not indicate that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. The Tribunal therefore finds this factor does not weigh against the Tribunal exercising its power to cancel the visa.

   If a permanent visa, whether the former visa holder has formed strong family, business or other ties

9. The applicant’s Student visa was not a permanent visa.

   Any other relevant matters

10. The applicant spoke at hearing of wanting the opportunity to show he is not a person of bad moral character.  While the Tribunal accepts the applicant does feel strongly about this it does not consider this need outweighs the seriousness of the breach of his visa condition .

    Conclusion

11. There are few matters that favour the applicant in the Tribunal’s consideration of the exercise of its discretion. These include his general compliance with his other visa conditions, his cooperative behaviour with the Department and some aspects of the circumstances surrounding the offence he committed breaching his AVO order.  However these favourable factors are significantly outweighed by the seriousness of the applicant’s breach of his visa conditions, and the other factors outlined above which do not support the setting aside of the visa cancellation.

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.

    Melissa McAdam
    Member