Jaswal (Migration)

[2019] AATA 865

Jaswal (Migration) [2019] AATA 865 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ajay Jaswal

CASE NUMBER:  1732036

HOME AFFAIRS REFERENCE(S):           BCC2017/3722465

MEMBER:Mr S Norman

DATE:7 February 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 572 Vocational Education and Training Sector visa.

Statement made on 07 February 2019 at 3:05pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – risk to safety of Australian community or individual – charged with criminal offences – victim expressed desire to withdraw the charges – case dismissed by prosecution – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

LEGISLATION
Gong v MIBP [2016] FCCA 561
Tien 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 15 December 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act). The Department decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(e)(ii) of the Act, on the basis the applicant was charged with criminal offences and that his presence in Australia may present a risk to the safety of an individual in the Australian community. 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 5 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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) of the Act. 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?

6. 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].

7. 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.

8. The applicant was granted a TU 572 Vocational Education and Training Sector visa on 31 August 2015. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 21 November 2017, the applicant was advised that the NSW Police had advised he had been charged with the following offences on 22 September 2017:

   ·Sexual Intercourse without consent x 6

9. The NOICC also noted the victim was a female with whom the applicant had been in an intimate relationship with for several months. The Police had advised that during a visit to the victim’s home the applicant had “engaged in inappropriate, forceful and unwanted sexual intercourse on six occasions, despite the victim requesting that he not engage in sexual conduct with her”. It was claimed the applicant’s actions had caused the victim physical pain and as a result of these events she had reported the incidents to the NSW Police. The Police then laid charges against the applicant and he had been subsequently released with “strict bail conditions”. The applicant was then advised this information may indicate his presence in Australia may present a risk to the safety of an individual in the Australian community, and that his visa may therefore be cancelled under s.116(1)(e)(ii) of the Act.

10. The strict bail conditions included that:

    ·the applicant must not assault or threaten; stalk, harass or intimidate; or intentionally or recklessly destroy or damage the property of the victim

    ·the applicant must not approach the victim unless the contact is through a lawyer

    ·the applicant must not go within 100 m of any place where the victim resides; any place where the victim was; any place as listed.

11. By letter of 7 December 2017,[1] the applicant’s migration agent said they were instructed the victim was the applicant’s girlfriend; and the applicant said all sexual relations were consensual and he proposed to plead not guilty to the charges. The applicant’s agent also said the relationship commenced in March 2017; that the applicant and the victim had engaged in day to day contact, including sexual relations, before the applicant was reported to the police in July 2017. It was then claimed the applicant was saying he was the “victim of a revenge attack on him by his girlfriend” (the victim). It was also claimed the girlfriend only “became agitated after the applicant did not show immediacy when his girlfriend initiated a discussion to get married”.

    [1] Department – folio 24.

12. It was also claimed that in 2017 the applicant told his “girlfriend that he wants to get married in the presence of his parents and therefore marriage has to be postponed till their arrival”. The applicant had only met the victim in or around March-May 2017, but she was attempting to marry him prior to his parents travelling to Australia (which they did for two or three months in 2018). The now 23 year old applicant said that may have been because his 40 year old girlfriend had two children and had been previously married, and he thought she may have believed his parents would advise him against marrying her.

13. The applicant also said that all sexual relations with the victim were consensual and he proposed to plead not guilty to all charges. However, the victim had claimed to have suffered physical injuries which were sustained during the applicant’s conduct which was then reported to the police. An AVO has since been enforced and charges were to be heard in court.

14. By migration agent submission of 4 December 2018, was attached a Statement of a Witness (Statement) dated 4 January 2018. That was sworn by the applicant’s now ex-girlfriend (the victim). In that Statement, she expressed her ‘desire for police to no longer proceed with this matter… [and to] withdraw the charges’.

15. When discussed at hearing, the Tribunal noted the Statement did not indicate the sexual assault did not occur, just that the charges were withdrawn. The agent believed the charges were false, but that the victim did not concede to this as it would have resulted in her being charged (and the Tribunal accepts this is possible). The applicant said he commenced the relationship in May 2017 (not March 2017), and that sexual contact had been ongoing. He said that he had travelled to Queanbeyan (where the victim resided), from Sydney (where he resided). He had remained at the victim’s address for several days prior to returning to Sydney. The applicant said that all sexual contact with the victim was consensual. He also said that in the one or two week period after he had returned to Sydney and prior to the victim reporting to the police (and during which time he had no physical contact with the victim), he had ongoing verbal contact with her. When asked on more than one occasion what was discussed in this period, he said (words to the effect) to the best of his recollection, ‘just normal things’ were discussed.

16. The Tribunal referred the Indian applicant to the following country information:

    5.2.1 The report of the UN Special Rapporteur, dated April 2014, noted:
    5.2 Domestic abuse

    ‘According to numerous interlocutors, the physical, sexual and psychological abuse of women in the private sphere is widely tolerated by the State and the community. The perpetrators include husbands, in-laws and other family members. Many victims live in family settings that are rooted in deeply entrenched patriarchal and customary practices that are sometimes harmful to women…  ’[2]

    [2] UK Home Office, Country Policy and Information Note - India: Women fearing gender-based violence, Version 2.0, July 2018.

17. The Tribunal understands that domestic violence is problematic in many countries, however, I put to the applicant that based on the above country information, it may be that he misunderstood what might be considered improper behaviour in Australia. For instance, he apparently misunderstood that the strict bail conditions to which he was subject, prevented him from contacting the victim – including by text message (even if that text was to tell her to stop harassing him by phone – as the applicant claimed had occurred). As a result of the reporting requirements to which the applicant was subject (when granted bail), his phone was checked at the police station and the above message was discovered. He was then detained for two days (which the Tribunal understands is possible but may not be likely); and his phone was taken from him (which the Tribunal understands is probable).

18. Be that as it may, the mere fact the victim expressed her desire to withdraw the charges against the applicant, would not necessarily prevent the case from being prosecuted. Such matters as the ‘likelihood’ of conviction and the public interest in pursuing the case would also be considered. After then considering same, the Director of Public Prosecutions withdrew the charges against the applicant and the case was dismissed.

19. Once the case was withdrawn, the applicant’s phone was returned to him by the police, and he re-kindled a relationship with the victim for several months from early 2018 (after discussing same the Tribunal accepts this is plausible). However, approximately four or five months prior to the Tribunal hearing, he broke off the relationship. His agent said he had advised the applicant to contact his former partner and ask her to appear at the Tribunal on his behalf, however, the applicant did not wish to do so as he wished to avoid further pressure to marry his former partner (again after discussing same, the Tribunal accepts this is plausible).  Therefore, the Tribunal accepts that at least in part (if not entirely), the victim could have been motivated to report the claimed sexual assault to the police, as she wished to pressure the applicant to marry her (as had been claimed by the applicant).

20. As noted above, 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].

21. However in the present case, and given the claimed victim expressed her desire that the charges be withdrawn; and given the charges against the applicant have been withdrawn and the case dismissed; and given the Tribunal accepts the claimed victim had harassed the applicant after he was subject to the AVO (suggesting a lack of any ongoing fear by her); and given the applicant and the claimed victim then re-engaged in a relationship after the case was dismissed, the Tribunal is not satisfied there is sufficient evidence in this case to substantiate the finding that the presence of the applicant 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.

22. The Tribunal also accepts the applicant has not otherwise come to the adverse attention of the Australian authorities since arriving here after being granted his Student visa on 31 August 2015. The Tribunal also accepts the applicant completed his course of study (a Diploma of Accounting) for which his Student visa was granted (expiry date 10 August 2018). The Tribunal also accepts the applicant’s (documentary and oral) evidence that he had commenced to study a Bachelor of Accounting at Group Colleges Australia P/L on or around 7 May 2018. After considering same, the Tribunal believes his ongoing focus on his studies supports the finding the applicant is not a risk to the Australian community.

23. For these reasons, the Tribunal is not satisfied the ground for cancellation in s.116(1)(e) of the Act, exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Mr S Norman
    Member