Joshi (Migration)

[2020] AATA 6049

Joshi (Migration) [2020] AATA 6049 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nihal Joshi

CASE NUMBER:  1930814

HOME AFFAIRS REFERENCE(S):          BCC2019/4548419

MEMBER:David McCulloch

DATE:27 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 27 November 2020 at 11:14am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant’s presence in Australia may pose a risk to a segment of the Australian community– applicant had been convicted of common assault – an AVO against the applicant – a circumstance which permitted the grant of the visa no longer existed – applicant was no longer in a relationship with spouse –no compelling need to be in Australia– decision under review affirmed

LEGISLATION
Migration Act 1958, s 116

CASES

Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 October 2019 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).

2. The applicant is a citizen of Nepal. The visa was granted on 6 March 2019 for a stay period until 3 September 2021.

3. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia may pose a risk to a segment of the Australian community, that his presence might be a risk to the safety of an individual, his partner Ms [A]. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 24 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Vikash Khadka. The applicant and the witness communicated in English.

5. 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

6. 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?

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 561, 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. The Department file contains police documents relating to one charge of assault occasioning actual bodily harm (domestic) that was laid against the applicant relating to events that occurred [in] August 2019.

10. The New South Wales Police Facts Sheet outlines the allegations against the applicant relating to the charge.

11. The victim in the matter is a person with whom the applicant had been, at the time of the allegation, in a relationship for three years and had been living together intimately for three months (Ms [A]).

12. [In] August 2019, the victim was celebrating a Nepalese festival for married women with some [friends], and the applicant was at home alone. The victim texted the applicant to make sure he was okay, and later put her phone on silent and put the phone down while she spent time with her friends. When the victim returned to her phone, she had thirteen missed calls from the applicant. The victim called the applicant, and the applicant began to scream at her and demand that she come home before midnight.

13. The victim became scared as she did not want to upset the applicant, so she packed up her food and went home. The victim went straight to the bedroom where the applicant was lying down. The victim lay down next to the applicant and hugged him and asked if everything was okay. The applicant pushed the victim off him with both hands and screamed about why the victim did not answer her phone.

14. The victim became fearful and went into the bathroom to let the applicant calm down. When the victim returned to the bedroom, she lay down next to the applicant and they began to argue. The victim was telling the applicant about her night when the applicant punched her twice in the face with his right hand, bruising the victim above her right eye.

15. The victim said she was going to call the police, and the applicant grabbed her phone to prevent her, and put his right hand over her mouth to stop her screaming. The applicant called his mother and began arguing over the phone with her, and he eventually hung up and screamed at the victim. After a while, the argument calmed down and the applicant and victim went to sleep.

16. [In] September 2019, the victim went to the police station and reported the matter. The applicant was arrested [in] September 2019 and was interviewed by the police with the use of a Nepalese interpreter. The applicant denied the allegation.

17. The Tribunal sought from the New South Wales police information relating to the outcome of the charge against the applicant. The information indicates that the charge of assault occasioning actual bodily harm had been withdrawn. The information indicates that the applicant had been convicted of common assault and been given a conditional release order.

18. Photographs provided by the police show photographs of the face of a person, presumably the victim with apparent bruising to the eye. A witness statement by the victim indicates that she is not living with her former partner. The applicant left the premises the day after the incident.

19. Correspondence provided from the applicant’s lawyer to the New South Wales police and an amended Facts Sheet indicates that the applicant would be willing to enter a plea of guilty to common assault based on amended agreed facts that the applicant did not punch the victim, but merely pushed her. In addition, the amended Facts Sheet removes references to the applicant calling his mother, as this is claimed to be irrelevant. It also indicates that the applicant made admissions when interviewed by the police that he had pushed the victim.

20. The Tribunal put to the applicant in the hearing this information pursuant to the procedural requirements of s.359AA of the Act. It noted that this information was relevant because the applicant had been convicted of common assault against his partner and had admitted to physical adverse conduct towards her. The Tribunal indicated that the consequence of this information could be to find that the applicant is or may be, or would or might be, a risk to the Australian community, most particularly that of the victim. The Tribunal put to the applicant that his conviction for common assault in the circumstances alleged could indicate harmful conduct towards his partner that could be an adverse discretionary factor to the Tribunal in exercising its discretion as to whether the visa would be cancelled.

21. The Tribunal also put to the applicant that he pleaded guilty in return for amended facts indicating that he only pushed his partner, rather than that he punched her twice in the face. The Tribunal put to the applicant that it could form the view that he did indeed punch the applicant, particularly noting corroborative photographs. This could compound the risk that the applicant posed to his former partner.

22. In response, the applicant referred to the fact that his partner had been out at a festival and had failed to return many phone calls to her. The applicant indicated that upon his partner coming home, she jumped on the applicant in bed which caused the applicant to push her (without excessive force) causing her to fall. The applicant denied punching his partner. The applicant indicated that an argument developed that involved other issues in the relationship. The applicant indicated that his partner told him to leave the house, which he did the next morning.

23. In terms of photographs which show the applicant’s partner with a bruise to her eye, the applicant commented that she did not report the matter to the police for one week thus creating uncertainty as to when the photograph was taken.  The applicant also referred to the delay in terms of casting doubt as to the nature and severity of the incident. The applicant also indicated that it would seem that his partner must have agreed to the reduction in charges, and not pushing for charges based on her being punched in the face, which is claimed as undermining of the truth of the applicant having punched his partner.

24. Considering all of the evidence, the Tribunal only considers as established the facts as having been agreed by the applicant, noting that the reduction in charges was agreed to by the police, namely that the applicant only pushed his partner.

25. Nevertheless, it is clear that there was a physical altercation and fight of such a level that involved the applicant’s partner telling the applicant, her partner of three years, to leave the home, causing the relationship to be at an end. According to the applicant’s evidence in the hearing, other than court appearances, the applicant has had no physical contact or other communication with his former partner since.

26. As discussed with the applicant in the hearing, he has provided evidence of an Apprehended Violence Order (AVO) being issued against him in July 2020. The applicant indicated that this was the case. However, the applicant indicated that although this ex-partner had initiated this order, at a certain point she had not wanted it to be proceeded with, but the process of consideration and the making of the order proceeded nevertheless as a result of the wishes of police.

27. The threshold for the ground of cancellation being made out is not a high one, given that it is satisfied if there may be, or would be a risk, including in relation to a particular individual. The Tribunal considers the facts in relation to the incident agreed by the applicant leading to the conviction for common assault, combined with the fact of there being an AVO against the applicant in relation to his former partner, establish that the ground of cancellation is made out. The level of the risk is a relevant discretionary factor.

28. 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

29. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

30. A relevant discretionary factor is the level of risk that the applicant poses to his former partner. The conviction and the AVO demonstrate that there is some risk, but the Tribunal considers that the risk is limited. This includes on the basis of the fact that agreed facts would suggest that the incident was not of overly significant intensity, together with the fact of there being no evidence of any attempt by the applicant to approach or create problems for his ex-partner in the period since the incident occurred. The relatively limited nature of the risk to the applicant’s former partner is a discretionary factor against exercising the discretion to cancel the visa.

31. In terms of the circumstances in which the ground for cancellation is made out and whether there are extenuating circumstances beyond the applicant’s control, the applicant referred to his annoyance at his partner at having jumped on him on the bed and the fact of her not infrequent inebriation. As indicated, the applicant has indicated that a verbal fight developed after this incident involving other matters in the relationship.

32. The Tribunal is not inclined to accept exculpation for the applicant as to the factual circumstances leading to him pleading not guilty to a charge of common assault.

33. In terms of the purpose of the applicant’s travel and stay in Australia, he arrived as a dependent on the substantive student visa of his former partner. However, as indicated in the hearing and demonstrated by government records, the applicant was enrolled to commence a Diploma of Leadership and Management in October 2019, and thereafter to continue with an Advanced Diploma of Leadership and Management.

34. In the hearing the applicant indicated that he did not commence or continue with these courses because of the relevant events which led to the cancellation of his visa.  In any event, it was clear from the applicant’s evidence in the hearing that he did not have a significant desire to continue with such courses. The applicant indicated that his real wish is to study automobile mechanics in Australia at TAFE.

35. In terms of compelling reasons to remain in Australia and the hardship that he will face if the visa remains cancelled, the applicant initially at hearing had difficulty understanding what the Tribunal was asking. The vague and amorphous responses of the applicant did not give the impression of the applicant having a clear goal in terms of what he wished to do in Australia if the visa remained cancelled.

36. However, after some period of questioning the applicant indicated that he wished to study automotive mechanics, and it would be his inability to do this which would be the key hardship if the visa remained cancelled.

37. The Tribunal asked the applicant what steps or investigations he had taken in exploring such possible study, such as identifying particular courses or TAFE locations. The applicant had not taken steps in these respects.

38. As put to the applicant in the hearing, the Tribunal considers that if the applicant had a meaningful desire to study in Australia and was asking the Tribunal to reinstate his visa, he would have undertaken greater efforts and would have had a more concrete notion of the course he wished to study, and where.

39. The Tribunal also notes in this respect that the applicant did not provide evidence in terms of exploring the steps he would need to take to secure a student visa in his own right.

40. The relatively uninformed nature of the applicant’s goals and necessary steps in terms of what he would do in Australia if the visa is reinstated is somewhat adverse to the applicant in the exercise of the Tribunal’s discretion as to whether the visa would be cancelled.

41. The applicant referred to a hardship in having to return to Nepal being that the situation in relation to the COVID-19 pandemic is more problematic in the Nepal than in Australia. While the Tribunal accepts this, this is not an overly significant discretionary factor in favour of not cancelling the visa given that the pandemic is a situation which the whole world is having to manage and deal with. However, it is given some consideration in the applicant’s favour in terms of the Tribunal exercising its discretion not to cancel the visa.

42. An additional adverse discretionary factor as discussed with him in the hearing is the fact of his admission in the hearing that he is no longer in a relationship with his former partner. The Tribunal discussed with the applicant that this could be a ground (under s.116(1)(a)) for the visa to be cancelled on the basis that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

43. This is because the applicant was granted the visa based on being a member of his former partner’s family unit, which he has admitted is no longer the case.

44. The Tribunal put to the applicant in the hearing that this could be an adverse discretionary factor given that if the visa was reinstated, the fundamental basis for the granting of the visa no longer existed, and the Department could well cancel the visa again on this ground. The applicant did not dispute the ability in this respect or otherwise take issue that the prime basis for the grant of his visa no longer existed.

45. This fact is adverse to the applicant in the exercise of the Tribunal’s discretion.

46. Mr Khadka and the applicant both gave evidence that they are close friends and have known each other many years, including in Nepal. The applicant went to live with Mr Khadka when his partner asked him to leave. Mr Khadka indicated that the applicant has been through a lot in the last year. Mr Khadka indicates that he provides moral support as well as financial support in terms of covering the rent, and paying for additional expenses for the applicant. He also indicated that the applicant’s family in Nepal provide some financial support for the applicant.

47. There is no evidence that the applicant has been uncooperative or created difficulties in his interactions with the Department.

48. In terms of mandatory legal consequences, if the visa is not reinstated the applicant could be unlawful and liable to immigration detention. However, this is militated by the fact that the applicant would continue to have eligibility to hold a bridging visa while he makes arrangements to leave the country.

1. There is no evidence that the interests of children in Australia are affected by the continued cancellation of the visa.

2. The applicant indicated in the hearing the he does not fear persecution or significant harm on return to Nepal.

3. These are the relevant discretionary factors, in the Tribunal’s view.

4. The Tribunal weighs discretionary factors. An adverse discretionary factor is that the applicant does pose some risk to his former partner, although, as indicated, the Tribunal considers that the risk is a limited risk. This weighs to some extent against exercising the discretion to cancel the visa. Adverse to the applicant is the fact that the Tribunal does not consider that there are extenuating circumstances beyond the applicant’s control leading to the (agreed) factual matrix which has led to the conviction for common assault.

5. Adverse to the applicant is the fact of the relatively amorphous and unformed nature of his study or other goals in Australia if the visa is reinstated. Further adverse to the applicant is the fact that the underlying relationship with his former partner, which is the basis for him holding his dependent student visa no longer exists thus potentially enabling his visa to be cancelled on this ground if it were reinstated.

6. Balancing discretionary factors, the Tribunal exercises its discretion to cancel the visa.

7. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   David McCulloch
   Member