Guragain (Migration)

[2017] AATA 1314

Guragain (Migration) [2017] AATA 1314 (17 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bibek Guragain

CASE NUMBER:  1714267

DIBP REFERENCE(S):  BCC2017/2249067

MEMBER:Kira Raif

DATE:17 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 August 2017 at 3:01pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Criminal offences – Guilty plea – Risk to safety or good order of Australian community – No international obligations breached

LEGISLATION

Migration Act 1958, ss 116, 140, 375A
Migration Regulations 1994, Schedule 2

CASES
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 27 June 2017 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 Nepal, born in March 1994. He was granted a Student visa in September 2013. On 27 June 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled on the same day. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 16 August 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The Tribunal informed the applicant about the existence of the Certificate under s. 375A of the Act. 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. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

7. According to the primary decision record, a copy of which the applicant provided to the Tribunal, the applicant has been charged with a number of offences, including three counts of filming a person engaged in a private act and two counts of filming a person’s private parts. In oral evidence to the Tribunal the applicant explained that he was working for a food store and was found using his camera to film colleagues. In the Tribunal’s view, these offences are serious, as they involve interference with persons’ privacy. The applicant told the Tribunal that he has been charged with other offences, which related to filming at a public counter, but the charges have been dropped.

8. In response to the NOICC the applicant stated that there are no grounds for cancelling his visa because he has not been convicted. The Tribunal is mindful, however, that grounds for cancellation under s. 116(1)(e) are not limited to circumstances where there is a conviction against the visa holder. In his oral evidence to the Tribunal the applicant stated that he had pleaded guilty to the five charges and will be sentenced in September. The applicant’s decision to plead guilty suggests the offences have occurred.

9. The Tribunal acknowledges that the applicant had been granted bail. However, considerations and legal test for the grant of bail are different to those that arise for the purpose of s. 116(1)(e). The question for the Tribunal is whether the presence of the applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community and these are not the consideration that determine whether bail should be granted.

10. In his oral evidence to the Tribunal the applicant conceded that he had committed a crime and stated that he realises that now but before his “mind did not work that way” and he “could not wrap his mind about it”. The applicant said he did not know how he did it and it happened “all of a sudden” and it “sort of happened”. The Tribunal finds this claim unpersuasive. The applicant told the Tribunal that he pleaded guilty to five offences and that the conduct occurred over a period of about two months. That is, over a reasonably long period of time the applicant took positive steps, which required at least a degree of preparation and planning and active engagement, to be able to engage in these activities. The Tribunal is not convinced that the applicant’s conduct was spontaneous or sudden. Instead, it appears intentional and planned.

11. The applicant said that when he started engaging in criminal conduct, he was suffering from depression and was going through a tough time and he even tried to commit suicide in the past. The applicant presented no medical evidence to support these claims.

12. The applicant told the Tribunal that he regrets what he has done, that was ‘out of his mind’ and that he apologised to his colleagues and his friends and his family. The Tribunal acknowledges that the applicant appears to be remorseful for his actions, although the Tribunal notes that such remorse was only expressed after the applicant came to the attention of the police.

13. The applicant suggested that it is normal human behaviour to continue to do such activities until someone told him to stop. The Tribunal is not convinced that the applicant was unaware that what he was doing was wrong. The applicant would have been well aware, given the nature of the conduct and the non-consensual filming, that what he was doing was wrong. The Tribunal is not convinced that the applicant was under any misapprehension about his conduct until he was charged or caught. Despite that the applicant continued to engage in such activities and did so willingly, intentionally and with a degree of premeditation.

14. The Tribunal is of the view that the activities in which the applicant engaged – filming persons engaged in private acts and filming a person’s private parts – involved serious breaches of trust and were of predatory nature. The applicant’s own evidence is that he engaged in these activities over a two month period and on multiple occasions. The Tribunal is not convinced on the limited evidence before it that the applicant’s conduct was caused by his depression or poor mental health and even if that was the case, the Tribunal is not satisfied that the applicant has received adequate treatment (his evidence to the Tribunal is that he has not been able to arrange an appointment with a psychologist while in detention and did not have time for one while attending university) to ensure the same conduct will not occur in the future.

15. The Tribunal has formed the view that the presence of the applicant in Australia may be, or would or might be, a risk to the safety or good order of the Australian community or a segment of the community. The Tribunal finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(e) of the Act.

    Consideration of discretion

16. 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

17. The applicant entered Australia as a holder of a Student visa and his purpose of travel and stay in Australia is to undertake studies. The applicant told the Tribunal he completed three years of an engineering course at UTS and needs to do another year to complete the course. The applicant said that he continues to be enrolled and if his visa is reinstated, he will be able to continue with his studies. The applicant presented to the Tribunal a statement from UTS confirming that if his visa is reinstated, the applicant will be able to continue with his studies.

18. If the applicant’s Student visa is cancelled, and unless he is granted another visa in the future, the applicant may not be able to continue with his studies and would be unable to fulfil the purpose of his travel and stay in Australia. Other than his desire to undertake studies, there does not appear to be any compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

19. There is no evidence that he applicant has not complied with visa conditions.

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

20. The applicant told the Tribunal that he has worked hard for the three years of his studies in Australia and has ruined it by his conduct. He only has a year to go in his course and will have nothing if he does not finish the degree. The applicant claims that his name has been in the media and everybody thinks he is a bad person and he wants to clear his name and be seen as a good person and contribute to the community. The applicant said that once he completes his studies, he plans to return to Nepal.

21. The applicant said that he could not have done the same engineering course in Nepal, which is why he came to Australia. He has not made any inquiries on whether he could use the subjects he has already completed as credit towards any other course in any other country. The Tribunal Is not satisfied that the study the applicant completed in Australia would be entirely wasted if he could do a similar course anywhere else. Nevertheless, the Tribunal accepts that considerable hardship may be caused if he cannot complete his study.

    Circumstances in which ground of cancellation arose. 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

22. The applicant told the Tribunal that he was suffering from depression and did wrong because he was going through a hard time. The applicant states that he is now seeking professional help from a psychologist, at the suggestion of his lawyer, and is writing a diary daily. The applicant said that since he was detained, he had time to think about it and he knows he can get support from friends and he has spoken to his family and has apologised to everyone. He feels bad about what he has done and will be different in the future. The Tribunal is somewhat concerned that the applicant appears to have taken active steps to seek help only after he has been charged with the offences and only after his visa was cancelled. The applicant’s expression of remorse was only offered after the charges had been paid. As noted above, the Tribunal is not convinced that the applicant was unaware that his conduct was wrong.

23. The Tribunal pointed out that the applicant has not presented any evidence of having suffered from depression or of having sought help. The applicant told the Tribunal that he saw a counsellor at UTS and talked about the problems. He wanted to see a psychologist but did not have time and later he was detained. He has not been able to arrange an appointment with the psychologist since his detention.

24. According to the applicant, the conduct which resulted in charges being laid, and the guilty plea, occurred around February or March 2017. The Tribunal is not satisfied the applicant had no time to see the psychologist since that time and before his detention in June 2017, if he genuinely believed he had health issues which affected his conduct. As noted above, the Tribunal is concerned that the applicant is now making arrangements to seek medical help because he believes it would help with his sentencing.

25. The ground for cancellation arose because the applicant had been charged with a number of offences and has now pleaded guilty to these offences. On the limited evidence before it, the Tribunal does not accept that the applicant’s conduct was caused by his depression or any other illness. The Tribunal does not consider that the ground for cancellation arose because the circumstances were beyond the applicant’s control.

    Past and present conduct of the visa holder towards the department

26. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The applicant told the Tribunal that he has been cooperative with Immigration and the police.

    Whether there are mandatory legal consequences

27. The consequence of the cancellation is that the applicant does not hold a valid visa. Unless he applies for, and is granted another visa, the applicant will be an unlawful non-citizen and may be subject to detention. There is no suggestion that he will be indefinitely detained and the present cancellation does not prevent the applicant from making a valid visa application without the Minister’s intervention, at least for some kind of visas.

    Whether there would be consequential cancellations under s.140

28. There are no other persons whose visas may be subject to consequential cancellation under s. 140.

    Whether any international obligations would be breached as a result of the cancellation

29. There are no children who would be affected by the cancellation. There is no evidence to indicate, and the applicant does not claim, that he would be subjected to any form of harm or persecution upon return to Nepal. The Tribunal is not satisfied that Australia has an obligation to protect the applicant or that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The Tribunal finds that no international obligations would be breached as a result of the cancellation.

    Any other relevant matters

30. The applicant spoke in oral evidence about contribution to the community. He referred to the organisations he had been involved in and the community service he performed. He said he helps people in detention. The applicant spoke about other activities such as writing, debating and other activities he has organised and been involved in. The applicant provided to the Tribunal a number of supporting statements from friends, as well as a copy of his diary and of his letter of apology to his employer. The Tribunal has had regard to that evidence.

31. The Tribunal has considered the entirety of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the Tribunal has formed the view that the presence of the applicant in Australia may be, or would be, or might be, a risk to the safety or good order of the Australian community or a segment of the community. The Tribunal acknowledges that considerable hardship may be caused to the applicant by the cancellation of the visa, primarily because he may be unable to complete his studies in Australia and he feels he would have wasted three years that he has already spent doing the course. He also wants to ‘clear his name’ and contribute to the community and the cancellation of the visa may result in the applicant having to leave Australia unless he is granted another visa. The Tribunal accepts that the applicant has been cooperative with the Department and the police and appears to have complied with visa conditions in the past.

32. Against these considerations, the Tribunal has formed the view that the conduct in which the applicant engaged was reprehensible and that the applicant was well aware of that when he engaged in that conduct over a period of time. He did so deliberately and willingly. The conduct involved predatory behaviour and serious breaches of trust. The Tribunal is not convinced by the applicant’s suggestion that he engaged in such conduct because he was suffering from depression or because he was not advised and did not know that it was wrong.

33. The Tribunal finds that the cancellation of the visa would not breach Australia’s international obligations, there are no consequential cancellations and the applicant will not be subjected to indefinite detention.

34. The Tribunal has formed the view that the nature of the conduct, and the circumstances in which the ground for cancellation arose, outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Kira Raif
    Senior Member