Islam (Migration)

[2019] AATA 1358

Islam (Migration) [2019] AATA 1358 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Tarikul Islam

CASE NUMBER:  1710164

HOME AFFAIRS REFERENCE(S):           BCC2017/1079144

MEMBER:Justin Owen

DATE:17 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 17 January 2019 at 3:38pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector visa – applicant represented a risk to the safety of an individual – criminal charges withdrawn– applicant continued to attempt to complete his studies– genuine desire to continue and complete his studies – decision under review set aside

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 189, 198, 375A

CASES
Gong v MIBP [2016] FCCA 561
Tien & Ors 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 8 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate considered that the applicant represented a risk to the safety of an individual. 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 16 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Andre Valenuela Marin. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.  The applicant’s representative attended the hearing.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he 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?

7. 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, at [41].

8. 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.

9. According to the delegate’s decision record that the applicant supplied to the Tribunal, on 17 March 2017 the applicant was charged by the NSW Police with common assault. It was alleged that on that day the applicant was involved in an altercation with his partner, where he hit her on several occasions causing her to become concerned for her safety. The applicant’s partner then telephoned the NSW Police for assistance. The applicant was charged with an offence which the delegate considered serious and relates to physical violence against another person. Given the nature of the charge the delegate considered that the applicant may represent a risk to the safety an individual. On 6 April 2017 the applicant was notified of the Department’s intention to consider cancellation of his Student visa under s116(1)(e)(ii). He responded on 28 April 2017 through his then representative. The applicant rejected the allegation against him and stated the allegations had little or no chance of standing in Court. The delegate considered that there were grounds for cancellation of the applicant’s visa under s116(1)(e)(ii).

10. The applicant provided an Advice of Court Result from the NSW Local Court (T1, Folio. 32).  It stated that on 20 October 2017 the charges against the applicant were withdrawn and dismissed. 

11. The applicant in oral evidence at the Tribunal hearing and in a statutory declaration to the Tribunal (T1, Folio.33) explained the background to the withdrawal and dismissal of the charges against him.  He said the charge was withdrawn in return for his consent to a six-month Apprehended Domestic Violence Order (ADVO) that was offered by the NSW Police at the hearing.  There was no admission of any guilt in relation to the charge.   He stated that his then lawyer advised him that accepting the ADVO would end his case quickly and he would have no criminal record.  He said his lawyer had also advised him the NSW Police prosecutor had conceded that they had lost confidence in the matter due to the inconsistent testimony of the applicant’s partner. 

12. In his written submission to the Tribunal and in oral evidence the applicant said he was unaware at the time – and it was not raised by his then legal representative – that the ADVO could potentially have further implications concerning the cancellation of his Student visa.  

13. The applicant has submitted in written evidence to the Tribunal (T1, Folio.37-38) that the initial grounds for cancellation no longer exists as the charges against the applicant were withdrawn on 20 October 2017.  The applicant notes that the ADVO expired on 19 April 2018 with no incidents or breaches. 

14. In his written submission the applicant concedes that whilst the charges were withdrawn and dismissed; the ADVO imposed against the applicant could form a reason for affirming the cancellation. 

15. The Tribunal accepts that the criminal charges he was facing were withdrawn and dismissed.  The applicant’s visa however was cancelled by the delegate on the basis the applicant may have represented a risk to the safety of an individual, namely the applicant’s then partner.   On the evidence before the Tribunal, the applicant had a Final Order ADVO made against him by the Local Court – albeit on the agreement of the NSW Police and the applicant’s lawyer rather than initiated by the Magistrate - on 20 October 2017 (T1, Folio.46).  The ADVO ultimately was put in place in the interests of the health or safety of an individual.   Accordingly, the Tribunal considers that the grounds to cancel the applicant’s Student visa exist. 

16. For these 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

17. 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’.

18. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal asked the applicant if there were any other reasons for his travel and stay in Australia.  He said his purpose was to study and to return to Bangladesh with first world qualifications.  He pointed out that his siblings and much of his family held tertiary qualifications and held professional occupations such as lawyers. At the hearing he professed a desire to work in the medical and health field, motivated by some of the circumstances surrounding some close family members.   

19. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that since the applicant’s arrival in Australia on 19 June 2015 he had completed one registered course of study and had cancelled two courses until commencing a Bachelor of Nursing at the then University of Western Sydney on 22 February 2017.

20. The applicant provided the Tribunal with all his academic transcripts from the now Western Sydney University (T1, Folio.41-43).  It indicates he was an excellent student throughout 2016 into early 2017 passing all courses and subjects with a high course GPA of 7.375.  In 2017 his marks fell away and he failed his course of study.  In 2018 he failed some courses whilst passing a number of subjects.  The applicant conceded to the Tribunal that his enrolment due to his progress had been cancelled by Western Sydney University in December 2018.

21. The Tribunal noted the dramatic shift from an excellent academic performance to a mediocre one in 2017.  The applicant in oral evidence at the hearing said the pressure of the criminal charges in March 2017 – right at the start of the academic year – had brought him considerable stress and anxiety.  He stated that he had continued to complete all his assignments but had attended very few classes.  The reason for this, he submitted, was that his now former partner was also studying at the University.  He said she and he had many mutual friends and he was extremely uncomfortable to see these friends given the circumstances that led to the criminal charges.  He said it was hard to go to University in such circumstances. After October 2017 furthermore, the Tribunal notes that an ADVO was in place that could potentially have concerned the applicant to avoid any possibility of seeing his former partner.   The Tribunal understands the predicament of the applicant in such circumstances and notes that the applicant did not, as illustrated by his academic record, simply give up on studying.  Clearly he continued to attempt to complete his studies by submitting assignments throughout 2017 and 2018.  He continued to pay all his tuition fees and remained enrolled.  The applicant stated that he had seen a counsellor a number of times in 2017 due to his state of mind after the criminal charges.

22. The applicant provided the Tribunal with a letter of offer and acceptance agreement from the Australian Health and Management Institute.  (T1, Folio.48-51).  The applicant has enrolled in a Diploma of Nursing and Certificate IV in Ageing Support.  The Tribunal noted at the hearing that neither this educational institution nor course would meet the criteria for a Higher Education Student visa.  The applicant through his representative accepted this fact and stated that the applicant’s Higher Education Student visa had already expired on 30 August 2018.  The applicant’s intention was to apply for a visa that would allow him to study at the diploma level.  The applicant in his submissions stated that due to his exclusion from WSU no other university would currently offer him direct enrolment into a Bachelor of Nursing.  His plan was to enrol in a Diploma of Nursing and, upon completion of the Diploma, he could enrol directly as a second-year in a Bachelor of Nursing.                    

23. The Tribunal, on the evidence before it, accepts that the applicant has a genuine desire to fulfil his stated desire to continue and complete his studies in Australia.  The Tribunal accepts that the applicant was a good student whose academic performance dropped away considerably after being charged with common assault.  Whilst the charges were eventually dropped, the Tribunal accepts the stigma associated with them – given his partner was at the same university and they had the same set of friends and colleagues – impacted upon his ability to successfully complete his studies.   The Tribunal weighs this factor in favour of not cancelling the visa. 

24. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.

25. The applicant in his written submission has submitted that he wholly complied with the conditions attached to his 573 Student visa.  The Tribunal notes that the applicant maintained enrolment in a Higher Education course across the entirety of his time in Australia apart from the brief period after December 2018 and his exclusion from Western Sydney University.  There is no evidence or suggestion he has not maintained an adequate level of health insurance or failed to comply with the restrictions upon employment. 

26. The Tribunal notes that the applicant was however charged with common assault.  The Tribunal nevertheless notes the charges were withdrawn and dismissed – albeit with an agreement to accept a six-month ADVO.  The Tribunal notes the applicant there was no acceptance of any guilt pertaining to the charges by the applicant when agreeing to accept the ADVO.  The ADVO expired almost a year ago with no issues reported and there has been no application made to extend it.  

27. The Tribunal weighs this factor slightly in favour of not cancelling the visa. 

28. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled.

29. The applicant submitted that a significant degree of hardship would be caused to both himself and his family should his visa be cancelled.

30. The applicant has submitted that due to the cancellation of his visa, he is currently subject to a three-year exclusion period for any temporary visa to Australia under Public Interest Criteria 4013 (‘PIC 4013’).  In written submissions he has stated that this exclusion period must be disclosed in visa applications to other countries, and may result in refusal for further visa applications.  The applicant has submitted that this potential restriction on the applicant’s international travel movements as well as an actual restriction on any temporary visa applications to Australia will cause him a significant degree of hardship. 

31. In oral evidence to the Tribunal he stated that personally it would also cause him considerable difficulties with his family.  He said his parents had invested heavily in him and had great faith in him and his studies.  He said his mother in particular had been appalled and ashamed of him after she learnt of the common assault charge and refused to speak to him for two months.  He said that he wished to build for himself a genuine and long-term career in the medical science area and Australia as a first world nation was a superior place to do so than Bangladesh. 

32. In relation to his family, the applicant in his written submissions stated it would cause them considerable hardship given they had financially invested so much in his education already.  Such an investment would have been for little or nothing if he was unable to continue his studies in Australia.  At the hearing the Tribunal asked the applicant about his family and the cancellation.  The applicant said his mother and father were his world.  He said they had paid not only his tuition fees but all the legal costs associated with the criminal charge and the visa cancellation.  He said they had suffered mentally and physically due to his situation. 

33. The Tribunal accepts that there will be a significant degree of hardship for the applicant and his family should he be compelled to return to Bangladesh.  The Tribunal accepts the applicant will be subject to a three year exclusion period of his visa remains cancelled under PIC 4013 except in certain circumstances.  It accepts that his parents, after investing so significantly in their son the applicant’s education, will feel strong disappointment by the cancellation.  The Tribunal does not however consider these in their own rights are reasons as to why the visa should not be cancelled.

34. The Tribunal was however particularly impressed by the oral evidence of the applicant at the hearing.  The Tribunal considered his testimony to be spontaneous, honest and genuine in articulating his desire to return to his studies and get back to achieving good marks so he could return to Bangladesh and work in the medical science area.  The Tribunal is prepared to accept the applicant has a genuine desire to succeed in his studies, in his future career and to bring pride to his family who have supported him.  In such circumstances the Tribunal considers there will be a significant degree of hardship imposed on both the applicant and his family should his visa remain cancelled.  On the evidence before it, the Tribunal weighs this factor in favour of not cancelling the applicant’s visa. 

35. The Tribunal has considered the circumstances in which the ground for cancellation arose.

36. As has been discussed previously in this decision record, the cancellation of the applicant’s Student visa arose due to the filing of charges for common assault against the applicant on 17 March 2017.  The delegate considered the offence to be serious.  The delegate considered that, given the nature of the charge, it appeared the applicant may represent a risk to the safety of an individual – namely the applicant’s former partner. 

37. The Tribunal agrees that the charge of common assault is serious.  The Tribunal takes a particularly dim view of physical violence in all forms.   The Tribunal nevertheless notes that on 20 October 2017 the charges were withdrawn and dismissed.  There was no admission of guilt by the applicant.  There was no conviction. 

38. The Tribunal notes the written submissions and oral testimony of the applicant concerning the circumstances in which the grounds for the cancellation arose.  The applicant has stated that the charge was withdrawn in return for his consent to a six-month Apprehended Domestic Violence Order (ADVO) that was offered by the NSW Police at the hearing.  He stated that his then lawyer advised him that accepting the ADVO would end his case quickly and he would have no criminal record.  The applicant has stated that he had no idea at the time that accepting the ADVO would potentially impact upon his visa status, particularly after he had not conceded any guilt and the charges themselves had been withdrawn and dismissed.  The Tribunal notes the applicant has no history of any past criminal behaviour.  The Tribunal is prepared on the evidence before it to accept that this was the applicant’s state of mind when agreeing to the ADVO.         

39. The ADVO was imposed for six months from 20 October 2017, expiring on 19 April 2018.  The applicant has provided the Tribunal with a copy of the ADVO (T1, Folio.45-46).  

40. The Tribunal notes from the decision record that the delegate cancelled the applicant’s visa at the time on the basis that the applicant had been charged with a serious offence – namely common assault – and – given the nature of the charge it appeared the applicant may represent a risk to the safety of an individual, namely the applicant’s former partner.  The Tribunal notes that with the effluxion of time it is able to see that the applicant was never in fact ultimately convicted of this charge and made no admissions of guilt.  Furthermore, whilst an ADVO was agreed upon as a settlement agreement for dismissing the charges, it was imposed upon the applicant by consent rather than a decision by the Local Court Magistrate that the applicant should have been restrained for the protection of his former partner.  This ADVO expired on 19 April 2018 without incident.  There is no evidence before the Tribunal that the applicant’s former partner has attempted to have the ADVO extended or a new ADVO imposed.  The applicant has stated in both oral evidence and in his written submission that he has had no contact with his former partner since the ADVO was imposed and is unaware as to her current address.  He stated he has no wish to see his ex-partner again.        

1. The Tribunal entirely accepts why in the circumstances at the time, the delegate made the decision to cancel the applicant’s Student visa.  The delegate understandably considered the applicant may have represented a threat to an individual, namely his ex-partner. Since that time however the pending criminal charge of common assault has been withdrawn and dismissed   The ADVO – which was established by consent rather than imposed by the Court and has passed without any incident and no applications have been made to either extend the Order or impose a new Order.  On the evidence before it, the Tribunal weighs the circumstances in which the ground for cancellation arose in favour of not cancelling the applicant’s visa.    

2. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The decision record the applicant provided states the applicant responded to the notice sent to him on 6 April 2017 and there is no evidence the applicant has been uncooperative with the Department in any of his previous dealings.  The applicant has not had any dealings with the Department since the cancellation.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

3. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. There is no information before the Tribunal which indicates that any other person currently holds a visa because the applicant held his Student visa. The applicant agreed in oral evidence to the Tribunal that no one holds a visa because of his 573 student visa. There is no evidence or claim made of dependents. Therefore any cancellation of the applicant’s Student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa

4. The Tribunal has considered whether there are any mandatory legal consequences to a decision to cancel the applicant’s Student visa, such as detention and removal from Australia. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant may be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning any mandatory legal consequences from a decision to cancel his Student visa, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

5. The Tribunal has considered whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations. The applicant in his written submission concedes there will be no legal consequences such as breaching Australia’s international obligations should the cancellation decision be upheld.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

7. The Tribunal noted at the conclusion of the hearing that an s375A certificate had been placed on the Department’s file. The Tribunal considered the certificate to be invalid. The Tribunal released the relevant folios to the applicant with all personal identifiers redacted.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Justin Owen
   Senior Member