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

1. 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).

2. 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.

3. The applicant appeared before the Tribunal on 7 September 2021 to give evidence and present arguments.

4. The applicant was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   SECTION 375A CERTIFICATE

6. 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.”

7. 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

8. 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

9. 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].

10. 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.

11. 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:

Date	Charges	Court and outcome
26 February 2020	Destroy or damage property<= $2,000 (DV) –Tier 2	Burwood Local Court 8 September 2020
1 April 2020 to 11 July 2020	Detention application – arrest	Parramatta Local Court 12 July 2020 - Breach of bail established
9 April 2020	Contravene prohibition/restriction in AVO (Domestic) Detention application - arrest	Burwood Local Court 18 December 2020 Parramatta Local Court 10 April 2020 – Breach of bail established
12 April 2020 to 10 July 2020	Contravene prohibition/restriction in AVO (Domestic) Stalk/intimidate, intend fear, physical etc harm	Burwood Local Court 18 December 2020
13 April 2020	Contravene prohibition/restriction in AVO (Domestic) Detention application - arrest	Parramatta Local Court 14 April 2020 – Breach of bail established

NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC)

1. On 29 July 2020, the Department sent to the applicant a NOICC to which he did not respond.

   Subsequent events

2. 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).

3. The applicant is subject to a Community Corrections Order.  During the hearing, the Tribunal advised the applicant that it considered the convictions to be serious; the applicant agreed with this.  He apologised and expressed remorse for his conduct.  The Tribunal noted that the information suggests repeated offending and he apologised for his conduct indicating that this was a mistake on his part. 

4. The Tribunal told the applicant that the Tribunal has no role to play in the processes of the criminal justice system as that is a matter for the criminal Courts, and that the Tribunal must accept the outcome of the Courts. The Tribunal further noted that the fact that he has been convicted means that there is evidence to potentially cancel the visa on different grounds, such as s 116(1)(g).

5. The question is whether the ground for cancellation exists in this case, as specified in the NOICC.  In submissions, it was noted that the applicant is intending to move to Tasmania and that he has not had any contact with Ms X or her son.  It was noted that the applicant has a cousin and friends in Tasmania to ease his transition.  It was argued that the applicant has not offended previously and does not pose a risk to Ms X, her son, or any segment of the Australian community.  The Tribunal questioned the applicant about his intention to move to Tasmania and he indicated that he has been making inquiries and that he intends to complete his courses (MBA and MPA) in Tasmania.  The Tribunal asked him if he had made any contact with any academic institutions in Tasmania and he stated that the only university would be the University of Tasmania.  He confirmed that he had not made any contact with the University of Tasmania or any other academic institution.

6. The applicant’s visa was cancelled pursuant to s 116(1)(e), although there is now evidence, namely the convictions, of grounds for potential cancellation under s 116(1)(g). The Tribunal must focus on the provisions of s 116(1)(e). The Tribunal notes that the Act does not qualify or quantify the risk as being real, or significant, or substantial. Prior to enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014, the provision stated that the presence of the visa holder in Australia “is or would be a risk to the health, safety or good order of the Australian community”.  The legislative intent is summarised at [13] of the Schedule 2 to Explanatory Memorandum as follows:

   The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public.  Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.

7. Section 116(1)(e) has been the subject of considerable judicial examination. In Gong v Minister for Immigration and Border Protection[1], Judge Smith held that while the provision did not require there to be any solid or certain foundation before the cancellation power can arise, the decision to cancel had to be based on legally reasonable inferences: at [41]. In Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2], the Court observed that the concept of “risk” has an element of futurity to it and that reliance on past offending alone may not be sufficient to justify cancellation of the visa. 

   [1] Gong v Minister for Immigration and Border Protection [2016] FCCA 561.

   [2] Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 5 August 2020.

8. The Department’s procedural guidelines concerning visa cancellation under s 116(1)(e) reiterate that the term ‘risk’ is not defined in the Act and is by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.

9. The applicant submitted that he has not been convicted of any offence relating to causing physical injury or harm to any person, the offending behaviour is out of character, and he has many female cousins and friends.  There is no evidence before the Tribunal to suggest otherwise and the Tribunal accepts that the applicant has no prior convictions, however he was charged with (and has now been convicted of) serious offences.  The Tribunal accepts that the applicant is remorseful for his offending conduct and that there is no ongoing relationship or contact with Ms X or her child.  However, the Tribunal is concerned that there was repeated offending towards vulnerable persons, including a minor.  The applicant’s offending conduct relates to serious matters. 

10. The applicant’s remorse and apology are noted but they do not overcome the Tribunal’s concerns relating to risk. Moreover, the Tribunal did not find the applicant’s evidence about his intention to move to Tasmania to be convincing; on his own evidence, he had not made any inquiries about pursuing his intended courses in Tasmania. Undertaking study is the primary purpose for being granted the student visa and the Tribunal finds it odd that the applicant has not inquired about courses in Tasmania. However, even if the Tribunal were to accept that the applicant intends to move from NSW to Tasmania, that does not mean that there is no risk as contemplated by s 116(1)(e). The Tribunal is mindful that the Tribunal need not quantify the degree of risk and the legislature had intended “…to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm”. 

11. The Tribunal has considered the submissions very carefully and the evidence in totality. The Tribunal considers the offending conduct to be serious, involving vulnerable persons. The Tribunal is mindful that the applicant is subject to a Community Corrections Order (CCO) and if breached, he could face imprisonment. It is reasonable to suggest that the CCO provides a level of assurance; it does not mean there is no risk as contemplated by s 116(1)(e).

12. On the evidence and in consideration of the evidence as a whole, the Tribunal finds that s 116(1)(e) is enlivened and that the presence of the applicant in Australia may be or might be a risk to the safety of Ms X and/or her son.

13. 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 cancelled

    Consideration of discretion

14. 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

15. 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.

16. 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. 

17. 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.

18. The Tribunal gives this consideration weight in favour of the applicant.

    ·The extent of compliance with visa conditions

19. The Student visa was granted with condition 8202 imposed.  It is not disputed that the applicant has had gaps during the period he has held a Student visa, in breach of condition 8202, although he has made academic progress.   The Tribunal is of the view that complying with visa conditions is a legitimate expectation; the Student visa is granted to permit the holder to study.  That is its primary purpose.

20. On balance, the Tribunal has decided to give this consideration some weight in favour of cancellation.

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

21. The Tribunal accepts that the applicant has spent a significant amount of money on his studies in Australia and he has made progress.  It is in his interest to finish his studies in Australia.  The Tribunal accepts that in the case of cancellation, the applicant would face hardship including career, financial, emotional, and further relationship challenges with his parents. 

22. In relation to the submissions that the applicant has suffered financially due to the costs of the criminal charges and the visa cancellation, the Tribunal is of the view that it is important to consider the costs in the context of the fact that he has been convicted and his visa was cancelled as a delegate was satisfied that there are grounds for cancellation under s 116(1)(e). In such a case, it is hard to see how this amounts to hardship. The courts have found the applicant to be guilty and there are victims in this case.

23. The applicant has alleged that there have been pornographic images and videos of him being made public.  The Tribunal accepts this as being plausible and that as such, he could face a degree of discrimination and embarrassment in Pakistan. 

24. The Tribunal gives this consideration weight in favour of the applicant.

    ·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

25. The circumstances in which the cancellation arose were as a result of the applicant being charged with offences in NSW.  The Tribunal notes that the applicant has pleaded guilty and has been convicted.   

26. The applicant has been apologetic and remorseful.  He is claiming to be a good person who has never been in trouble previously.  The Tribunal has given some weight to the fact that the applicant has no prior convictions.  However, and as outlined above, the Tribunal takes the view that the offences are serious and, in this case, involving 2 vulnerable victims in circumstances whereby the applicant was in a relationship with Ms X.  There is nothing to suggest that the offending conduct was beyond the applicant’s control.

1. In submissions, it was contended that the applicant’s offending is not analogous to cases in which a visa holder has had a visa cancelled under s 116(1)(e)(ii) of the Act and the AAT has upheld the Minister’s decision to cancel temporary visas on the basis of family violence (Nusipepa (Migration) [2018] AATA 5875 and Zhuo (Migration) [2019] AATA 4106), where the key distinguishing acts involved physical violence towards their respective partners. Firstly, although the Tribunal gives regard to other decisions in the Tribunal, it is not bound by them and secondly, as explained during the hearing, physical violence is not necessary to enliven s 116(1)(e). In fact, the Tribunal is of the view that to adopt such a narrow interpretation or applicability would be contrary to what could or would amount to domestic violence.

2. The applicant has been convicted 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).

3. The Tribunal views those convictions to be serious and gives this consideration significant weight in favour of cancellation.

   ·Past and present behaviour of the visa holder towards the Department

4. The applicant did not respond to the NOICC.  He has now apologised.

5. The Tribunal is of the view that engaging with the Department is important, particularly in the case of cancellation, so that the applicant’s views and version can be considered.

6. The Tribunal has noted the apology but has decided to give this consideration some weight in favour of cancellation.

   ·Whether there would be consequential cancellations under s 140

7. There is no evidence of consequential cancellation under s 140.

8. The Tribunal gives this consideration weight in favour of 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

9. The cancellation of the visa may result in the applicant being detained under s 189 and removed from Australia under s 198 of the Act.The applicant may be subject to s 48 of the Act, which may prevent him from applying for further visas while in Australia.  He would also be impacted by Public Interest Criterion (PIC) 4013 limiting the grant of further temporary visas for a period of 3 years.

10. The Tribunal considers potential detention and removal as well as the s 48 bar and PIC 4013 to be intended legislative consequences which are reasonable. 

11. The Tribunal gives this aspect neutral weight.

    ·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.

12. The applicant has claimed that he would be discriminated against in Pakistan due to the circulated pornographic material. The Tribunal did not take this to be a protection claim but if wrong, it is open to the applicant to lodge an application for a protection visa where any relevant claims would be assessed.

13. The Tribunal is satisfied that on the available material, cancellation of the applicant’s visa would not result in breach of any of Australia’s international obligations.

14. The Tribunal gives this aspect weight in favour of cancellation.

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

15. The Student visa is not a permanent visa.  It is intended for a specified period with an expectation of departure.

16. The Tribunal gives weight in favour of cancellation to the fact that the Student visa is not a permanent visa.

    ·Any other relevant matters

17. The Tribunal gives weight in favour of the applicant’s contribution to the landscaping of an aged care home and to being a member of a cricket team.

18. There are no other matters requiring consideration.

    Concluding remarks

19. The Tribunal has carefully considered the material before it individually and cumulatively. 

20. There are limited aspects in the applicant’s favour, essentially relating to his own circumstances.  On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.  The applicant has been convicted of offences involving vulnerable persons, including a minor.  The Tribunal is satisfied that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.

21. 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

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

    Antoinette Younes

    
    Senior Member