Gurung (Migration)

[2022] AATA 1842

Gurung (Migration) [2022] AATA 1842 (16 March 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Rohit Gurung

REPRESENTATIVE:  Mr Deepak Kumar Chettri (MARN: 1570187)

CASE NUMBER:  2118212

HOME AFFAIRS REFERENCE(S):           BCC2021/467492

MEMBER:  Kira Raif

DATE:  16 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 16 March 2022 at 2:51pm

CATCHWORDS
MIGRATION – cancellation – Subclass 485 (Temporary Graduate) visa – applicant’s presence in Australia is or may be a risk to others – applicant had been convicted of an offence against the law of NSW –  applicant is not fulfilling the purpose of his stay in Australia – no compelling need to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 30 November 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) (“Skilled”) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

1. The applicant is a national of Nepal, born in June 1997. He was granted the Skilled visa in September 2020. In March 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant’s presence in Australia is or may be a risk to others and that there are grounds for cancelling his visa under s. 116(1)(e) of the Act. The applicant seeks review of the delegate’s decision.

1. The applicant appeared before the Tribunal on 16 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Relevant law

1. 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. 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.

1. The delegate found that the applicant’s presence in Australia is or may be a risk to others and that there are grounds for cancelling the applicant’s visa under s. 116(1)(e) of the Act. However, the primary decision record indicates that when the NOICC was issued, the applicant was charged with an offence and subsequent to that, the applicant has been convicted of an offence. In these circumstances, the Tribunal has decided that the more appropriate ground in this case is s. 116(1)(g) and r. 2.43(1)(oa). The Tribunal wrote to the applicant prior to the hearing to inform him that it intended to consider that ground for cancellation.

1. 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). Section 116(1)(g) and reg. 2.43(1)(oa) relevantly provide that a visa may be cancelled if

   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)).

Does the ground for cancellation exist?

1. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted the Skilled visa in September 2020 and the visa was due to be in effect until September 2022. It is stated that the Department received advice from the NSW Police which indicates that in January 2021 the applicant is alleged to have committed the

following offence: film person’s private parts without consent to obtain sexual arousal (aggravated). It is alleged that the applicant had filmed, without consent, another person’s private parts for sexual gratification and that person was under the age of 16.

1. The NSW Police statement of facts alleges that while at the escalator of a train station, the applicant positioned himself behind the victim and filmed her private parts. When confronted by the girl’s parents, the applicant allowed them to review the footage on the phone and agreed to delete the recording. The matter was reported to the police and the applicant was charged and granted bail.

1. On 19 March 2021 the applicant was issued with the NOICC and he provided his response on 24 March 2021. It is noted that since the NOICC was issued, the applicant appeared before the Local Court on 5 October 2021 and was found guilty of the charge. He was convicted and sentenced to a three year Community Correction Order, commencing in October 2021 and due to expire in October 2024. The applicant is to be registered on the Child Protection Register. The applicant acknowledges in his evidence to the Tribunal that he has been convicted of an offence.

1. Having regard to the information in the primary decision record, and the applicant’s evidence, the Tribunal finds that the applicant was a holder of a temporary visa other than a Subclass 050, 051 and 444 visas. The Tribunal finds that the applicant had been convicted of an offence against the law of NSW. The Tribunal thus finds that the ground for cancellation set out in s. 116(1)(g) and r. 2.43(1)(oa) exists.

Consideration of discretion

1. 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 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

1. The purpose of the Skilled visa is to enable the visa holders, who completed study in Australia, to gain work experience. The applicant’s evidence is that he had done quite limited work in his chosen field. The applicant’s written evidence is that although he completed study in IT, he has not been able to find employment in that field and had engaged in other employment (in his response to the NOICC the applicant refers to employment at Harris Farm, which appears to be entirely unrelated to the field of his study). The applicant told the Tribunal in oral evidence that he completed a Bachelor of Science and IT and was looking for work in his own field but due to Covid, it was hard for him to find work in his own field. He refers to working on some projects and states that he found a job and was due to start in an IT job but he was charged and he did want to apply for the police certificate, so he quit his job. The applicant confirmed that since completing his study, he had not worked substantially in the IT field, he had only worked in Harris Farm and has not worked at all since the cancellation of his visa.

1. As the applicant has very limited employment in an occupation that is related to his field, and in a skilled occupation, the Tribunal is not satisfied the applicant is fulfilling the purpose of his stay in Australia.

1. In his written submission to the Tribunal the applicant submits that his employment and the financial obligations constitute a compelling need for him to remain in Australia. Given that the applicant has not worked since the cancellation of his visa some months ago, the

Tribunal does not accept that past employment constitutes a compelling need for the applicant to remain in Australia but even if the applicant was to return to work, given the low- skilled nature of his employment which is unrelated to his field of study, the Tribunal is not satisfied that the applicant’s employment constitutes a compelling need for the applicant to remain in Australia.

1. The applicant also states that he is the only person in the family who is able to work and he has an obligation to support his family in Nepal. The applicant states that his sister’s education depends on his financial support. The applicant also refers to a loan which he needs to repay. The Tribunal is prepared to accept that the applicant supports his family financially and that they rely on him for that support. The Tribunal is mindful that the applicant’s visa would have expired in six months. The applicant told the Tribunal that his plan was to return to Nepal at the end of that period (his representative states that the applicant could apply for other visas in Australia). If the applicant’s evidence is accepted, then he and his family would have to find alternative means of obtaining financial support in a long term. The applicant told the Tribunal that even six months of employment could support his family for a long time, and that may be the case, but in the Tribunal’s view, the fact that the visa in question is only a temporary visa and, in this case, a short – term one, is a relevant consideration and in the particular circumstances of this case, the Tribunal does not consider that the applicant’s financial obligations to support his family, and repay the loan, constitute a compelling need for the applicant to remain in Australia.

1. The applicant told the Tribunal that he wants to complete his treatment. His evidence is that he attends about one session a month and requires five more sessions. The applicant states that he would not be able to receive the treatment in Nepal because mental health treatment is not available there. The Tribunal accepts that the applicant wants to complete the treatment and that he may not be able to do so if the cancellation of the visa was to result in the applicant having to leave Australia. There is no evidence before the Tribunal whether the applicant may be able to continue with the treatment electronically (for example using Telehealth) but even if the applicant’s treatment was to cease before its completion, the Tribunal does not consider this constitutes a compelling need for the applicant to remain in Australia, given that the applicant has already completed multiple sessions, the evidence is that these have been effective, and that he may be able to complete at least some of the remaining five sessions before he needs to leave Australia.

1. The applicant also states that gaining work experience in his field would help him in the future employment but his evidence is that he has not worked substantially in his field in the past and there is no evidence before the Tribunal that the applicant has an offer of employment, or that he would be able to get a job in his chosen field if his visa is reinstated.

1. Overall, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia.

The extent of compliance with visa conditions

1. There is no evidence of any non-compliance with visa conditions.

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

1. The applicant provided to the delegate a statement from his partner, Ms Kang, as well as his own statement, outlining their relationship and circumstances. The Tribunal accepts, for the purpose of this review, that the applicant is in a relationship with Ms Kang. The applicant told the Tribunal that their relationship has been in existence for four years and they plan to get married in the future but have not made plans for that yet. The primary decision record

indicates (and the applicant confirmed this in his oral evidence) that Ms Kang is the holder of a Student visa which is due to expire in mid-2022. When asked about their future plans, the applicant told the Tribunal that Ms Kang intends to extend her Student visa later in the year to undertake a Bachelor course and she would remain in Australia. The applicant states that his initial plan was to leave Australia once his visa would have expired around September 2022 and they plan to maintain a long distance relationship while determining how to progress the relationship further. In these circumstances, where the parties have made plans to live separately later in 2022 and maintain a long distance relationship, the Tribunal is of the view that bringing forward the same plans (if the applicant was to leave Australia as a result of his visa being cancelled) would not cause significant hardship to the couple because they have already planned, and agreed to, a long distance relationship with the applicant residing in Nepal.

1. The applicant stated in his evidence to the delegate and the Tribunal that he wants to remain in Australia to find gainful employment and support his family in Nepal, as his father cannot support the family. The applicant told the Tribunal that his sister’s education is dependent on him working in Australia and if he cannot provide financial support, it would affect his family. The applicant refers to the financial pressure of having to repay the loan and support his family financially. The Tribunal accepts that if the cancellation of the visa is to result in the applicant having to depart Australia, it is likely to result in the applicant losing his employment opportunities in this country. The Tribunal accepts this could have adverse repercussions for him and his family. In particular, the Tribunal accepts that if the applicant is to leave Australia, it may cause financial hardship to the applicant and his family who rely on him for financial support.

1. However, the Tribunal also considers it relevant that the visa in question is a temporary visa only and that it would have expired, if not cancelled, in September 2022. The visa does not permit the applicant to remain in Australia indefinitely, or even on a long term basis and thus it would be necessary for the applicant to make other arrangements to be able to support his family. The applicant told the Tribunal that due to Covid restrictions in Nepal, it would be difficult for him to find a job in Nepal and even a few months of extra work in Australia would go a long way to support his family in Nepal and the Tribunal accepts that evidence.

1. The applicant refers to his links to Australia and the primary decision record indicates that the applicant first travelled to Australia in 2016 holding a Student visa. The Tribunal accepts that the applicant has been living in Australia for more than five years and is prepared to accept that he has formed ties to this country. However, again, the Tribunal is mindful that the visa in question is a temporary visa only and the applicant would be expected to leave Australia, or seek another visa upon its expiry. Thus, the Tribunal does not consider that the ties the applicant has formed in Australia are considered to be a factor that weighs against the cancellation.

1. The applicant refers to his ongoing treatment and a statement from his treating psychologist indicates that he is committed to rehabilitation. The applicant states that he wishes to continue with his treatment and rehabilitation. The Tribunal accepts that evidence. The applicant told the Tribunal mental health treatment is not available in Nepal and the Tribunal is prepared to accept that if the applicant was to leave Australia before his treatment is completed, that may cause a degree of hardship to him.

Circumstances in which ground of cancellation arose.

1. The ground for cancellation arises because the applicant had been convicted of an offence.

1. In his initial response to the NOICC the applicant stated that the filming occurred by accident and was not of the victim’s private parts and that he was not guilty of an offence and would

plead not guilty. (The applicant told the Tribunal that he was in denial because what happened was so out of character.) However, following the conviction, the applicant’s evidence changed and in his submission to the delegate, the applicant concedes his ‘wrong- doing’ and the effect on the victim.

1. The applicant refers to the psychological treatment he has received, noting that he has been diagnosed with Adjustment Disorder with Mixed Anxiety and Depression and Mood Fluctuations at the time of offending. The applicant presented several medical reports in response to the NOICC, including the initial psychological assessment and letters from the treating psychologists. The Tribunal acknowledges the professional medical opinion which the applicant had presented. The applicant presented to the delegate a number of other documents, including his letter of apology to the victim and sentencing assessment report. The statement from the treating psychologist indicates that the risk of reoffending would reduce with treatment and the Tribunal accepts that this may be so. The Tribunal has also had regard to the two statements from the treating psychologist, including more recent statement from Mr Jones, forensic psychologist dated 8 March, who also confirms that the risk of reoffending would reduce with treatment.

1. The applicant provided to the Tribunal the sentencing assessment report by Ms Kate Dewberry, which outlines the applicant’s background and general circumstances. It states that the applicant had accepted responsibility for his actions and attributed his offending to stress and mental health concerns at the time. The report indicates that the applicant was assessed by senior psychologist and was assessed as having an ‘above average’ risk level of sexual reoffending relative to other male sex offenders. However, the report also states that the applicant has been assessed as at a low risk of reoffending but further assessment would be completed, which may affect the risk assessment.

1. After initially denying any wrong-doing in his earlier response to the NOICC, the applicant had later expressed remorse for his conduct and had reiterated his remorse in his statement submitted to the Tribunal on 9 March 2022. The applicant provided a number of character references to the Tribunal and the Tribunal accepts that those who provided statements believe the applicant to be a person of good character.

1. In oral evidence the applicant stated that at the time he was mentally disturbed and the offence was completely out of character. The applicant states that what he has done is ‘unforgivable’ but he wants to have another chance to complete his sessions. The applicant refers to his family being also disturbed.

Past and present behaviour of the visa holder towards the department

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

Whether there would be consequential cancellations under s 140

1. There are no persons whose visas 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 and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

1. If the applicant’s visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and would be subject to detention and removal from Australia. There is no suggestion that the applicant would be detained indefinitely. The

cancellation of the visa would preclude the applicant from applying for many types of visas onshore and may impose an exclusion period in relation to future offshore applications. The cancellation of the temporary visa is also likely to affect the applicant’s eligibility for certain permanent visas in the future.

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

1. The applicant has no children. The applicant states that his 14 year old sister depends on him financially and the Tribunal is prepared to accept that evidence. The Tribunal is prepared to accept that it is in the best interests of the applicant’s sister that the visa is not cancelled, and that the best interests of a child are a primary consideration.

1. The applicant does not claim, and there is no evidence before the Tribunal that Australia’s non-refoulement are engaged in this case. The applicant’s immediate family are in Nepal and he mentioned a cousin in Australia. The Tribunal does not consider that the family unity principles would be breached in this case.

If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. The visa in question is not a permanent visa.

Any other relevant matters

1. Many of the applicant’s claims are addressed under various headings above.

1. The applicant presented to the delegate and the Tribunal a number of character references and, as noted above, the Tribunal accepts that those who provided these statements believe the applicant to be a person of good character. The applicant also provided to the Tribunal evidence of undertaking community service.

1. The applicant told the Tribunal that he has many friends in Australia who have supported him throughout his conviction, sentencing and treatment. He does not have close friends in Nepal. As noted elsewhere, the Tribunal accepts that the applicant has settled in Australia and has close friendships in Australia. However, the Tribunal is mindful, as noted above, that even if the visa is reinstated, the applicant would not be permitted to remain in Australia beyond September 2022 unless he is granted another visa. Thus, he would need to find ways maintain friendships from another country irrespective of the outcome of this review. The applicant told the Tribunal that he has not thought about it but maybe he needs time to “stabilise” his friendships. The Tribunal does not accept that claim, given the applicant’s evidence that he has formed close friendships and received support from them. The applicant ultimately agreed that he would be able to maintain friendships if he lives overseas. The Tribunal is also of the view that if the applicant is to leave Australia, (whether now or upon the expiry of his visa), he would be able to maintain the friendships he has formed in Australia.

1. The applicant states that the cancellation of the visa would prevent him from completing his treatment and also cause financial hardship to his family. These matters are addressed above and the Tribunal generally accepts that evidence.

1. The applicant’s representative submits that the applicant has limited IT experience in Australia, holds a degree from a reputable institution in Australia and his family has spent a very large amount to enable his study in Australia and it would be of benefit to the applicant

if he could remain in Australia for the duration of his visa and gain more experience. The Tribunal accepts that evidence but as noted above, there is little probative evidence to satisfy the Tribunal that the applicant will be able to gain relevant work experience in the future. The representative submits that the chances of the applicant reoffending are low and it would be beneficial for the applicant if the visa is reinstated so that the applicant is not subject to the s. 48 restrictions and can seek other visas. The Tribunal questioned the representative about future visa options for the applicant because it is of the view that the remaining duration of the visa is a relevant consideration. The representative submits that if the applicant ‘s visa is not cancelled, the applicant would be able to apply for other visas, such as the Subclass 491 visa which requires residence and employment in a regional area for six months. The Tribunal finds that submission problematic. The applicant told the Tribunal that he presently lives in Paramatta, NSW which is not a regional area. There is nothing before the Tribunal that he has made any arrangements to move to a regional area or that he is capable of doing so immediately. The representative states that the applicant’s Skilled visa would have expired on 9 September 2022, which is less than six months from now. The Tribunal is of the view that the applicant has no chance of meeting the six months residence / work in a regional area requirement before the expiry of his Skilled visa. The representative notes that there is always a ‘period of grace’ and the applicant has other options such as seeking judicial review (that suggestion from a registered migration agent is considerable concern to the Tribunal if it is made before the Tribunal’s decision or the representative suggests that the applicant can become unlawful non-citizen before seeking another visa). In his post-hearing submission the applicant suggests that he could also apply for a Student visa but, again, he has not presented any evidence of having approached any education providers about the possibly of study and he made no suggestion of wanting to pursue further study in Australia. The applicant has not satisfied the Tribunal that there are realistic future visa options in his particular circumstances and in such circumstances, the applicant has not satisfied the Tribunal that significant hardship would be caused if the applicant is subject to the operation of s. 48 in the future.

1. The applicant provided his penal certificates from Nepal and Australia. The Tribunal acknowledges the evidence in these documents.

1. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling his visa as the applicant was a holder of a temporary visa and has been convicted of an offence. The Tribunal has formed the view that there are reasons why the visa should not be cancelled. Importantly, the Tribunal acknowledges that the cancellation of the visa would cause financial hardship to the applicant and his family who are relying on him and would lead to the applicant losing employment opportunities and the possibility of gaining relevant work experience in Australia and may mean that he is unable to complete his treatment. The Tribunal acknowledges that if the cancellation of the visa would result in the applicant’s departure from Australia, that would lead to his separation from his partner and friends in Australia and affect his ties in Australia. The cancellation of the visa would also limit the applicant’s future visa options. The Tribunal accepts that the applicant has expressed remorse of his conduct and acknowledges the various reports which refer to the low risk of reoffending. The Tribunal generally accepts that significant hardship would be caused by the cancellation for a variety of reasons referred to throughout this decision.

1. The Tribunal acknowledges that the cancellation of the visa may affect the best interests of the applicant’s minor sister, who relies on him financially but would not otherwise affect Australia’s international obligations. The Tribunal also acknowledges the various reports indicating there is a low chance of reoffending. All these factors weigh against the cancellation.

1. However, the Tribunal has decided to place greater weight on other considerations. Importantly, the Tribunal places weight on the circumstances in which the ground for cancellation arises (the committal of the offence and, importantly, the nature of the offence). The offending involved a minor and the Tribunal notes the applicant’s initial denial of guilt and the suggestion that the filming was accidental in his response to the NOICC.

1. The Tribunal also places weight on the fact that the applicant does not appear to be fulfilling the purpose of his stay in Australia because he has not been able to gain experience in his field of study and presented no evidence to the Tribunal that he may be able to gain such experience in the future. The Tribunal has formed the view that there is no compelling reason for the applicant to remain in Australia. The Tribunal also places some weight on the fact that the visa in question is a temporary visa only and while the applicant’s representative submits that the imposition of s. 48 restrictions would cause hardship to the applicant, the Tribunal has not been presented with persuasive evidence to satisfy the Tribunal that if the visa is reinstated, the applicant will have the option, and the means of seeking another visa in Australia. The applicant’s own evidence to the Tribunal is that he intended to work for another six months and then return to Nepal and if that evidence is true, the fact that the remaining term of the visa is relatively short and the applicant intends to leave Australia minimises to some extent (in the Tribunal’s view) the hardship that the cancellation would cause.

1. Overall, the Tribunal has decided to place greater weight on the circumstances in which the ground for cancellation arises and the nature of the offence and the purpose of the applicant’s stay in Australia. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Kira Raif Senior Member