Harijan (Migration) - [2021] AATA 2201

Harijan (Migration) [2021] AATA 2201 (21 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bharat Harijan
CASE NUMBER:  2003360
HOME AFFAIRS REFERENCE(S):          BCC2019/4640723
MEMBER:Michael Ison
DATE:21 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 21 May 2021 at 4:44pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – risk to the health or safety of an individual – applicant convicted of criminal offences and imprisoned – criminal appeal delayed – mutual communication with spouse during interim intervention order – applicant claims wrongful conviction – financial hardship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8564
CASES
Gong v MIBP [2016] FCCA 561
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 5 February 2020 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).
Background
The applicant in this review is Mr Bharat Harijan, who is a 27-year-old Nepalese national. Mr Harijan is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.
The applicant arrived in Australia as the holder of a Student (Subclass 500) visa on 25 March 2017.
On 5 February 2020 the applicant’s Student visa was cancelled by a delegate of the Minister for Home Affairs.
On 19 March 2020 the applicant was granted a Bridging E (Subclass 050) visa. The applicant’s Bridging E visa has conditions 8101 (no work), 8207 (no study), 8401 (report as directed), 8506 (notify change of address) and 8564 (not engage in criminal conduct) from Schedule 8 to the Migration Regulations 1994 (the Regulations) attached.
The applicant was granted a second Bridging E visa on 17 March 2020 with the same conditions attached. The applicant continues to hold that Bridging E visa at the time of this decision.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant was charged with aggravated assault (no weapon) against a child or spouse by the South Australian police on 20 January 2019. The delegate formed the view that this meant the applicant’s presence in Australia is or may be a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Applicant’s representative
The applicant was represented in relation to the review by Ms Ursula Matson of Scammell & Co. Barristers and Solicitors, a practising lawyer. Ms Matson represented the applicant both before the Tribunal and in his criminal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2201
Decision Date: 21 May 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel Mr Bharat Harijan's Subclass 500 (Student) visa. The cancellation was based on the ground that Mr Harijan's presence in Australia posed a risk to the health or safety of an individual, specifically his wife, following his conviction for aggravated assault. The applicant sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(e)(ii) of the Migration Act 1958 was established, and if so, whether the visa should be cancelled in the exercise of discretion. The Tribunal was required to consider the applicant's conviction for assaulting his wife, the potential risk to her safety, and all relevant circumstances, including the applicant's personal situation, his intentions for future study and work, and his claim of financial hardship.

The Tribunal reasoned that the applicant's conviction for aggravated assault, involving placing his hands around his wife's neck, established a risk to her health or safety under section 116(1)(e)(ii) of the Act. The Tribunal noted that this ground did not mandate cancellation. In exercising its discretion, the Tribunal considered the applicant's stated intentions to study business and pursue a career in the IT or digital economy sectors in Nepal, his claims of financial hardship, and his intention to appeal his conviction. However, the Tribunal concluded that its role was to apply migration law to the applicant's circumstances, not to punish him for his criminal offending.

The Tribunal affirmed the delegate's decision to cancel the applicant's visa. The applicant continued to hold a Bridging E visa at the time of the decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision dated 5 February 2020 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).Background The applicant in this review is Mr Bharat Harijan, who is a 27-year-old Nepalese national. Mr Harijan is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows. The applicant arrived in Australia as the holder of a Student (Subclass 500) visa on 25 March 2017. On 5 February 2020 the applicant’s Student visa was cancelled by a delegate of the Minister for Home Affairs. On 19 March 2020 the applicant was granted a Bridging E (Subclass 050) visa. The applicant’s Bridging E visa has conditions 8101 (no work), 8207 (no study), 8401 (report as directed), 8506 (notify change of address) and 8564 (not engage in criminal conduct) from Schedule 8 to the Migration Regulations 1994 (the Regulations) attached. The applicant was granted a second Bridging E visa on 17 March 2020 with the same conditions attached. The applicant continues to hold that Bridging E visa at the time of this decision.The primary decision The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant was charged with aggravated assault (no weapon) against a child or spouse by the South Australian police on 20 January 2019. The delegate formed the view that this meant the applicant’s presence in Australia is or may be a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.Applicant’s representative The applicant was represented in relation to the review by Ms Ursula Matson of Scammell & Co. Barristers and Solicitors, a practising lawyer. Ms Matson represented the applicant both before the Tribunal and in his criminal law proceedings. Ms Matson was acting in part pro bono for the applicant and it was of great assistance to the Tribunal in the conduct of this review to have Ms Matson’s assistance, particularly given Ms Matson’s knowledge and understanding of the applicant’s criminal law proceedings. Ms Matson is referred to in these reasons as the applicant’s representative or the representative. Tribunal hearings The applicant appeared before the Tribunal by telephone on 22 October 2020, 11 January 2021, 12 March 2021, 9 April 2021 and 29 April 2021 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Nepali and English languages who also participated in the hearings by telephone. The Tribunal conducted multiple hearings because:·At the first hearing the applicant had pleaded not guilty, his criminal trial was part heard and was expected to conclude in November 2020, but ultimately did not conclude until December 2020, so the Tribunal hearing was adjourned to January 2021;·At the second hearing in January 2021 the applicant’s criminal trial had concluded but the presiding Magistrate had not reached a verdict, which was expected to be delivered on 15 February 2021 and the Tribunal hearing was adjourned to March 2021;·The delivery of the verdict was delayed until 25 February 2021 when the applicant was found guilty of assaulting his wife but the Magistrate reserved his decision on sentence and the applicant provided the Tribunal with a copy of the Magistrate’s ruling;·At the third hearing on 12 March 2021 the applicant’s representative advised the Tribunal the applicant had been sentenced earlier that day in the Magistrates’ Court of South Australia to 12 months imprisonment with a seven month non-parole period suspended upon the applicant entering into a bond of AUD200 to be of good behaviour for 12 months. The applicant was also ordered to pay costs of AUD930 and a full non-contact intervention was issued. The Tribunal hearing was adjourned to April 2021;·At the fourth hearing on 9 April 2021 the applicant advised he intended to appeal against his conviction and potentially sentence, but had not yet obtained the Magistrate’s sentencing remarks. The Tribunal discussed the applicant’s potential appeal against his conviction and sentence and decided, with the consent of the applicant and his representative, to set the applicant’s review down for a substantive hearing later in April 2021; and·At the fifth hearing on 29 April 2021 the Tribunal conducted a substantive hearing of the applicant’s application for review.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if the Minister is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds set out in s.116(1)(e) which states:(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:(i) the health, safety or good order of the Australian community or a segment of the Australian community; or(ii) the health or safety of an individual or individuals; If satisfied that a 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?s.116(1)(e)(ii) - risk to the health or safety of an individual A visa may be cancelled under s.116(1)(e)(ii) if the Minister is satisfied that the presence of the visa holder in Australia is or may be a risk to the health or safety of an individual, in this case the applicant’s wife. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41]. The Tribunal asked the applicant whether he agreed that there was a ground for the cancellation of his Student visa. The applicant told the Tribunal he does not agree. The applicant was found guilty of assaulting his wife on 20 January 2019. The Magistrate who found the applicant guilty and convicted him of aggravated assault made the following sentencing remarks:Following a trial I found you guilty of assaulting your wife, [name deleted]. The assault occurred in circumstances where there was an arrangement whereby you would hand over your car to her, to enable her to sell that vehicle and pay some debts. When she refused to get into the car, you got out, followed her and the assault occurred. My finding was that you put both your hands around her neck in a choking fashion, and proceeded to apply some force. The force was sufficient to cause redness and other marks observed by a doctor and a police witness not all that long after the event. I was not able to make a find though that the pressure was such as to cause [name deleted] to become unconscious, however it was still a serious assault. The law provides for a four-year maximum sentence of imprisonment. You have no prior convictions. You are now 26 years-of-age. You and [name deleted] were married in Nepal and came to Australia in 2017. Not long after that clear difficulties arose in the relationship. [Name deleted]’s view, clearly expressed over a period of time, was that you were not providing her with adequate emotional or financial support. Your view by inference, in the various messages, was that you were providing as much support, both financially and emotionally as you could. In any event by the time the offending had occurred you were separated. I am advised that a sentence of imprisonment over a certain period – I think 12 months - is likely to affect your visa but I accept the prosecution’s submission that that is not a factor that should weigh on the way I deal with the offending today. I am told that following the breakdown of the relationship your mental health has not been good, particularly with this case and one in relation to your visa being dealt with. Turning back to the offending itself, I regard it as serious, even though I was not able to be satisfied that your conduct caused [name deleted] to fall unconscious, it was sufficiently serious to make a number of marks to her neck which were observable the following day. Any form of strangulation – which is the word I will use – by using both hands around her neck is a very serious example of an assault because of the potential consequences for the victim. I regard a sentence of 12 months imprisonment as the appropriate sentence. I will fix a non-parole period of seven months. Although there was no plea of guilty, I am satisfied your personal circumstances are such as to warrant suspension of that term of imprisonment on you entering a 12 month bond to be of good behaviour. What that means is you will not have to serve the sentence of imprisonment but if you breach the good behaviour bond, you may well have to serve it. Do not leave the court without signing the good behaviour bond. I will waive the court costs. As part of the sentencing process I will issue an intervention order pursuant to s 28 of the Sentencing Act 2017 in accordance with the document that the prosecutor will provide which is a full non-contact order. (sic)

Decision

Reasons for decision

The applicant was granted a second Bridging E visa on 17 March 2020 with the same conditions attached. The applicant continues to hold that Bridging E visa at the time of this decision.The primary decision The applicant provided the Tribunal with a copy of the primary decision. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant was charged with aggravated assault (no weapon) against a child or spouse by the South Australian police on 20 January 2019. The delegate formed the view that this meant the applicant’s presence in Australia is or may be a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.Applicant’s representative The applicant was represented in relation to the review by Ms Ursula Matson of Scammell & Co. Barristers and Solicitors, a practising lawyer. Ms Matson represented the applicant both before the Tribunal and in his criminal law proceedings. Ms Matson was acting in part pro bono for the applicant and it was of great assistance to the Tribunal in the conduct of this review to have Ms Matson’s assistance, particularly given Ms Matson’s knowledge and understanding of the applicant’s criminal law proceedings. Ms Matson is referred to in these reasons as the applicant’s representative or the representative. Tribunal hearings The applicant appeared before the Tribunal by telephone on 22 October 2020, 11 January 2021, 12 March 2021, 9 April 2021 and 29 April 2021 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Nepali and English languages who also participated in the hearings by telephone. The Tribunal conducted multiple hearings because:·At the first hearing the applicant had pleaded not guilty, his criminal trial was part heard and was expected to conclude in November 2020, but ultimately did not conclude until December 2020, so the Tribunal hearing was adjourned to January 2021;·At the second hearing in January 2021 the applicant’s criminal trial had concluded but the presiding Magistrate had not reached a verdict, which was expected to be delivered on 15 February 2021 and the Tribunal hearing was adjourned to March 2021;·The delivery of the verdict was delayed until 25 February 2021 when the applicant was found guilty of assaulting his wife but the Magistrate reserved his decision on sentence and the applicant provided the Tribunal with a copy of the Magistrate’s ruling;·At the third hearing on 12 March 2021 the applicant’s representative advised the Tribunal the applicant had been sentenced earlier that day in the Magistrates’ Court of South Australia to 12 months imprisonment with a seven month non-parole period suspended upon the applicant entering into a bond of AUD200 to be of good behaviour for 12 months. The applicant was also ordered to pay costs of AUD930 and a full non-contact intervention was issued. The Tribunal hearing was adjourned to April 2021;·At the fourth hearing on 9 April 2021 the applicant advised he intended to appeal against his conviction and potentially sentence, but had not yet obtained the Magistrate’s sentencing remarks. The Tribunal discussed the applicant’s potential appeal against his conviction and sentence and decided, with the consent of the applicant and his representative, to set the applicant’s review down for a substantive hearing later in April 2021; and·At the fifth hearing on 29 April 2021 the Tribunal conducted a substantive hearing of the applicant’s application for review.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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 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 Instruction, formerly part of the Department’s Procedures Advice Manual, titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only. In the Tribunal’s introduction for the hearing held on 29 April 2021, the Tribunal explained to the applicant that it is not the Tribunal’s role to punish the applicant for his criminal offending. The Tribunal noted to the applicant that he intends appealing his conviction and if he does the matter he has been convicted of remains before the courts. The Tribunal explained that even if the applicant was not appealing his conviction punishment of the applicant (by the Tribunal) is not a relevant consideration for the Tribunal in this review. The Tribunal’s role is to apply the migration law to the applicant’s circumstances, not the criminal law of South Australia.The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia The applicant arrived in Australia in March 2017 as the holder of a secondary Student visa as the dependent of his wife but told the Tribunal that relationship ended in June 2019, although the applicant and his wife have not divorced yet. The applicant told the Tribunal he came to Australia to support his wife in her studies to become a nurse and then he planned to study to be able to do something big back in Nepal. The applicant told the Tribunal he has not been able to implement his vision to be financially stable, establish a family and settle down in society so his family is not affected by the discrimination the applicant says exists in Nepal. The applicant told the Tribunal his financial position is “really bad” so he would like to improve his financial situation before returning to Nepal. The Tribunal asked the applicant if he intended to resume the teaching studies he was undertaking in Nepal prior to coming to Australia. The applicant responded he is a writer, would like to send good messages to both Australian and Nepalese societies, would like to improve his English and after recovering from his depression he had received an offer to enrol in a Diploma of Business, just before his visa was cancelled. The Tribunal enquired of the applicant why he was seeking enrolment in a business course if he is a writer and what career options that study would provide for the applicant in Nepal. The applicant responded such study would mean he could do anything in the business sector in Nepal and could help him realise his dream of having his own busines in the information technology or digital economy sectors.