Hassan (Migration) - [2021] AATA 4859

Hassan (Migration) [2021] AATA 4859 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ibtihaj Hassan
CASE NUMBER:  2012994
HOME AFFAIRS REFERENCE(S):          BCC2020/1917822
MEMBER:Antoinette Younes
DATE:16 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 September 2021 at 9:33 AM
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – Destroy or damage property – Stalk/intimidate, intend fear, physical etc harm – Contravene prohibition/restriction in AVO (Domestic) – Community Corrections Order (CCO) – serious offending conduct – no prior convictions – repeated offending towards vulnerable persons – remorse and apology – consideration of discretion – compelling reason to stay – completion of studies – convicted of offences involving vulnerable persons, including a minor – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Amendment (Character and General Visa Cancellation) Act 2014
Migration Regulations 1994 (Cth), r 2.43
CASES
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Nusipepa (Migration) [2018] AATA 5875
Tien v MIMA (1998) 89 FCR 80
Zhuo (Migration) [2019] AATA 4106

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 18 August 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant has been charged with several offences in New South Wales. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 7 September 2021 to give evidence and present arguments.
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.
SECTION 375A CERTIFICATE
The Tribunal discussed with the applicant that the Departmental file contains a s 375A Certificate in relation to various documents on the basis that it would be contrary to the public interest because “the disclosure of the information may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods and disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.”
The Tribunal advised the applicant that the documents subject to the Certificate essentially relate to communications between the NSW Police Force and the Department about the charges. The Tribunal advised that it has formed an initial view that the Certificate is valid and invited submissions. The Tribunal explained to…

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.

Continue reading Hassan (Migration)

Details

AGLC: Hassan (Migration) [2021] AATA 4859
Case: [2021] AATA 4859
Decision Date: 16 September 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Minister to cancel the applicant's Subclass 500 (Student) visa. The applicant, Mr Hassan, had been convicted of serious offences involving his former partner and her young son, including property damage, stalking, intimidation, and contravening apprehended domestic violence orders. The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out, and if so, whether the applicant's visa should be cancelled.

The primary legal issue was whether the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community or individuals, as contemplated by section 116(1)(e). The Tribunal considered the meaning of "good order" in this context, referencing previous case law that indicated it encompassed activities impacting public order, the proper administration of law, or creating disruption to Australian society. The Tribunal also had to consider whether there were compelling reasons for the applicant to remain in Australia, despite the cancellation ground being established, and whether to exercise its discretion to cancel the visa.

The Tribunal found that the applicant's convictions for serious offending conduct, particularly towards vulnerable persons, established the ground for cancellation under section 116(1)(e). While acknowledging the applicant's stated intention to complete his studies and the challenges he faced due to his convictions, the Tribunal found these were not sufficiently compelling reasons to override the risk posed by his presence. The Tribunal gave little weight to submissions regarding the COVID-19 situation in Pakistan as a compelling reason to remain in Australia.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal advised the applicant that the documents subject to the Certificate essentially relate to communications between the NSW Police Force and the Department about the charges. The Tribunal advised that it has formed an initial view that the Certificate is valid and invited submissions. The Tribunal explained to the applicant that in the case of potentially adverse information contained in the documents, the Tribunal would discuss that material to give the applicant an opportunity to comment on or respond to that material.CONSIDERATION OF CLAIMS AND EVIDENCE 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.Does the ground for cancellation exist?Section 116(1)(e) - risk to Australian community or individual A visa may be cancelled under s 116(1)(e) if the Minister 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. 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 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. In support of the application for review, the applicant provided to the Tribunal a copy of the delegate’s decision record, which indicates the following: On 29 July 2020, the Department sent to the applicant a NOICC to which he did not respond.Subsequent events In written submissions to the Tribunal, the representative advised that the applicant was convicted in September and December 2020 of the following offences, all of which relate to the applicant’s former partner (Ms X) and her son (under 5 years of age):·Destroy or damage property.·Stalk/intimidate, intend fear, physical etc harm (domestic).·4x Contravene prohibition/restriction in AVO (domestic).

Decision

Reasons for decision

The Tribunal has decided that the ground for cancellation exists, and having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

For those reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelledConsideration of discretion There are no matters specified in the Act or Migration Regulations 1994 (Cth) 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 The Tribunal discussed with the applicant the information about his educational background contained in the delegate’s decision record. The applicant arrived in Australia as the holder of a Student (Subclass 573) visa on 23 April 2014. In July 2014, he completed an English for Academic Purposes course. He enrolled in a Bachelor of Business, but this was changed to a Bachelor of Accounting, which he did not continue. The applicant changed to an Advanced Diploma in Management, which he completed on 21 February 2016. In July 2018, he also completed a Bachelor of Business (Accounting). In March 2019, he was due to commence a Master of Professional Accounting (MPA) but he ceased studying on 4 July 2019 due to non-payment of fees. He enrolled in a Master of Business Administration (MBA) due to start in January 2020, but he ceased studying on 1 May 2020. On 5 August 2020, the applicant enrolled in an MBA to commence on 31 August 2020. The applicant told the Tribunal that he intends to complete the MBA and MPA. He explained to the Tribunal that he has completed 4 units in total for both courses and that there are 8 more units to complete the MBA and 12 units for the MPA. The applicant has also undertaken training for a private pilot licence, and he advised that he would like to complete the course and obtain registration. The applicant acknowledges that he has on occasions breached his visa conditions, such as not paying fees and periods of not studying whilst holding a student visa, the Tribunal accepts that the applicant’s purpose for travel to and stay in Australia has been to study. The Tribunal accepts that the applicant would like to complete the MBA and MPA courses. The Tribunal further accepts that the applicant’s relationship with his parents has faced challenges due to the convictions and that further time could overcome those challenges. Although he has completed 4 units in both courses, the Tribunal accepts that he has a compelling need to remain and complete those courses. In relation to the submissions about the COVID-19 situation in Pakistan, given the unpredictability of the pandemic and as this impacts on all concerned, the Tribunal does not give those submissions much weight in being a compelling reason to remain in Australia. In fact, around the time of the Tribunal’s decision, NSW, where the applicant resides, faced COVID-19 outbreaks[3] and lockdowns.[3] - accessed 8/9/21.