Kabir Mojib (Migration)

Kabir Mojib (Migration) [2022] AATA 255 (12 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Md Arafat Kabir Mojib
CASE NUMBER:  2102216
HOME AFFAIRS REFERENCE(S):          BCC2020/625578
MEMBER:David McCulloch
DATE:12 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 January 2022 at 8:26am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal convictions and intensive correction order – discretion to cancel visa – circumstances of offending – mental health diagnosis and some counselling – practitioners’ reports and character references – remorse – hardship if visa remains cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 359AA
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 22 February 2021 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 applicant is a citizen of Bangladesh born on 14 August 1999. The visa that was cancelled was granted on 17 October 2018, expiring on 31 March 2023.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 4 March 2020. The applicant provided responses to the NOICC on 19 March 2020, 23 March 2020 and 17 April 2020. A second NOICC was sent to the applicant on 9 February 2021 which superseded the previous NOICC. The applicant did not provide a response.
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
According to the Provider Registration and International Student Management System (PRISMS) database, the applicant was enrolled and studying a Bachelor of Digital Media at Macleay College which will end on 8 May 2023.
The applicant appeared before the Tribunal on 6 January 2022 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. However, mostly the applicant elected to speak in English. The applicant was represented in relation to the review by his legal representative, who attended the hearing.
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
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)(g). 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?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).
The delegate’s decision record and documents on the Department file indicate that, according to a report provided by the NSW Police, the applicant has been convicted of the following criminal offences on 5 February 2021 at the Sydney Downing Centre District Court: one count of threatening to distribute intimate image without consent (domestic violence), one count of aggravated breaking and entering and committing serious indictable offence, and one count of using (etc) offensive weapon with intent to commit indictable offence, with a sentence of imprisonment for 2 years and 3 months to be served by way of Intensive Correction Order for the same period commencing on 5 February 2021.
In the hearing, the applicant agreed that he had been the subject of these convictions and sentence.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) 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
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’. 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.
The updated NSW Police Facts Sheet outlines the allegations against the applicant relating to the charges summarised as follows.
The victim in this matter is Miss C. The applicant and C first met at Western Sydney University and became acquainted in around August or September 2019. On 8 November 2019, the applicant attempted to call C while she was on the phone. The applicant became extremely upset when he found out that C was on the phone with someone else. The applicant was under the impression that he and C were in a domestic relationship despite C having expressed to the applicant that she wanted them to stay as friends.
In early January 2020, C told the applicant to cease contact with her. The applicant said, ‘I have a video clip of you. I can show it to your parents or I can upload it and ruin your life.’ The applicant referred to a video clip of he and C being intimate. C kept in contact out of fear the video would get sent to her parents. The applicant refused to believe that C wanted to stop all contact with him. The applicant would cry, become overly emotional or verbally abusive towards her stating, ‘Why don’t you go kill yourself?’. The applicant would bring up the video if C did not go to his house.
On 29 January 2020, C told her cousin what was happening between her and the applicant. She received a message of apology from the applicant. C blocked the applicant from all social media platforms but did not block his phone number. C told the applicant that she did not want any further contact from him. At 2:46 pm on 3 February 2020, C received a lengthy message of apology from the applicant. At 6:20 pm on 4 February 2020, C received a message from the applicant asking her to call him. She did not call him and received several calls from the applicant which she did not answer. At 12:24 am on 7 February 2020, C received a message from the applicant stating, ‘I will call three more times and if you don’t pick up I’m coming to your place’.
C was home by herself and was scared. She called her housemate and told her what had happened, before locking the house and going into the bathroom.
At 12:48 am, C heard banging on the door and windows around the house. She became very scared and heard her bedroom window opening. She closed the bathroom door and locked it.
The applicant forced himself into the bathroom. C heard another male voice inside the house but did not know who it was. The applicant started hugging her and apologised for what had happened. She pushed him away. The applicant hugged her legs and begged her. C stated that she did not want to be friends and told him to go away.
The applicant walked out of the bathroom and sent the other male person away in a ride-sharing service. He returned to the bathroom and began touching C again.
The applicant went to the kitchen to grab a knife. He started cutting his left arm with the knife, making a deep cut. He cut his arm several times while C observed. The applicant said, ‘If you care about me you will come with me,’ and ‘If you don’t come with me at my place I am going to cut my throat.’ The applicant was making cutting motions at each side of his throat with the knife and a stabbing motion towards his stomach. C was extremely concerned that the applicant would harm her with the knife. C telephoned her cousin, K, to come to her aid.
After some time, the applicant put the knife in his pants and said, ‘Let’s go, I have to keep that with me.’ They walked outside together. At this time, N and K arrived at the premises and saw the applicant holding C’s arm. N and K pulled C away and contacted the police.
The applicant was arrested on 7 February 2020 at his home.
Provided to the Department by the applicant or on his behalf in response to the NOICCs were the following:
·A written submission on the applicant’s behalf dated ‘14 October 2021’ [sic]. Details of this submission are referred to further in this decision.
·An email dated 4 March 2020 stating that the applicant had been following the conditions of his ADVO and had submitted his passport to Bankstown Police Station. It also states that the cancellation of his visa would destroy his career and his dreams of becoming an IT specialist. The applicant further states that he committed his offences ‘unknowingly’ and regretted his actions.
·A statutory declaration by the applicant, dated 17 March 2020, which declares that he is ashamed and regretful of his actions. The applicant notes that while he threatened self-harm, he did not intend violence against C.
·A psychosocial report dated 6 March 2020 which states that the applicant’s loss of his mother who died during his birth and childhood neglect by his father caused undiagnosed low self-esteem, increased anxiety and depression for the applicant. The loss of relationship with C, among other things, led to self-harming behaviour and behaviour that was uncharacteristic of the applicant under normal stressors. The report indicates that the applicant was remorseful and took full responsibility for the impact of his behaviour on C. The applicant had agreed to undertake a treatment plan to manage future health risks, relapses and compliance with maintaining lawful behaviour.
·A statutory declaration by Abul Kalam Azad, dated 18 March 2020, which declares that the author believes that the applicant is a person of very good character and has a very kind soul. It also declares that the applicant is hardworking, reliable and passionate. The author does not believe that the applicant will commit another offence.
·A statutory declaration by Al Hasib Tamim, dated 17 March 2020, which declares that the applicant is a person of very good character. It also declares that the applicant is reliable, helpful, passionate, moral, intelligent and hardworking.
·A statutory declaration by Ebrahim Ali Hasan Ebrahim, dated 17 March 2020, which declares that the applicant is a person of good character. It also declares that the applicant is friendly, introverted, respectful, hardworking, reliable and honest. The applicant is remorseful and would not repeat his offences.
·The applicant’s academic records from Western Sydney University for the three semesters in 2018 and 2019 in the University Foundation Studies Extended – three Terms. The results show the applicant passing 15 out of 15 units.
·Overseas Student Confirmation-of-Enrolment (CoE) for a Bachelor of Information and Communications Technology at Western Sydney University from 10 July 2020 to 14 July 2022.
·CoE for a Diploma in Information and Communications Technology at Western Sydney University from 25 October 2019 to 6 June 2020.
·CoE for a Bachelor of Digital Media at Macleay College from 25 May 2020 to 8 May 2023.
Provided to the Tribunal was a report from Tim Watson-Munro, consultant psychologist, dated 17 November 2021. The report states that the applicant has ‘substantial abandonment issues’ because of his father’s emotional absence. It explains that due to the applicant’s flatmates returning to Bangladesh, he experienced anxiety about being on his own, which in turn escalated his attachment to C. The report outlines the background history of the applicant’s life from birth to the time of incident which led to his arrest. Alcohol consumption is referred to as an explaining factor in the offences. The Tribunal notes that this version of events is consistent with the version in the NSW Police Facts Sheet, although with added asserted facts to provide context. The applicant was assessed to suffer from a ‘Depressive Disorder (severe & recurring) (296:33) according to DSM-5 criteria’. The author concurs with the opinions expressed by Ms Prasad (dated 6 March 2020). The author further opines that in the applicant’s current circumstances, the risk of him reoffending is low.
A further submission on behalf of the applicant was provided to the Tribunal on 27 December 2011 which provided as follows:
Background
Mr Mojib is a 22 year old Bangladeshi citizen who came to Australia to study in October 2018. He completed University Foundation Studies at the University of Western Sydney and is currently enrolled in a Bachelor of Digital Media course at Macleay College.
On 5 February 2021 Mr Mojib was convicted of a number offences at Sydney District Court and was sentenced to an aggregate term of imprisonment of 2 years and 3 months to be served by way of an Intensive Correction Order.
Issues
The issue before the Tribunal is whether to affirm or set aside the decision of the delegate dated 22 February 2021. The sole ground relied on by the delegate was that reg 2.43(1)(oa) applied to Mr Mojib because he had been convicted of an offence against a law of the Commonwealth, a State or a Territory. It is not disputed that this ground applies. However, cancellation under this provision is not mandatory and the decision maker’s discretion is unfettered by either the legislation or any binding direction under s 499.
The mere fact that a person’s visa may be cancelled does not give rise to a presumption that it should be cancelled. The Tribunal must consider the facts of the case before it and weigh the reasons that favour cancellation against those that do not.
The offences for which Mr Mojib was convicted are set out in the delegate’s decision. They all relate to a single incident at the home of a Ms Chowdhury with whom he had been engaged in a consensual intimate relationship that had broken down.
The first of the offences, using an offensive weapon with intent to commit an indictable offence, is of course on its face very serious. On the facts as presented by the police, however, it is clear that Mr Mojib did not go to the premises with a weapon, that he took hold of the knife opportunistically, and that the only person he wounded with it was himself.
The second offence should also be seen in context. Mr Mojib has no history of burglary or breaking and entering for any reason whatsoever.
The third offence is relatively minor given the small value of the property damaged.
Regarding the fourth offence, the undisputed evidence of the Mojib is that he merely made this claim on the spur of the moment but could not have carried it out because he in fact had not made and did not have any intimate image or imag’s es of Ms Chowdhury.
The context of these offences is best understood in the light of the two expert opinions that are before the Tribunal: the Psychosocial Report of Ms Mohini Prasad on the DHA file and the assessment of the consultant psychologist Mr Tim Watson-Munro. The authors of both opinions state that they had read and understood the Expert Witness Code of Conduct and agreed to be bound by it.
As noted in a previous email, Mr Watson-Munro will be on leave and unavailable to be called at the hearing on 6 January. Should the Tribunal have any questions about his written opinion we ask that they either be put in writing or that he be separately interviewed after his return from leave on 1 February.
Mr Watson-Munro’s assessment refers to Ms Prasad’s opinion and concurs with it. The Tribunal is requested to give consideration to both opinions and to take into account that they both assess the offending to have been an isolated occurrence arising from underlying emotional stresses of a historical nature and the coming together of more recent stressful events of his support group of friends returning to Bangladesh and the relationship with Ms Chowdhury coming to an end. Mr Mojib is assessed as being at low risk of reoffending and as having insight and remorse in relation to the offending. He is willing to undertake a treatment plan but has not been able to so far due to the pandemic.
Mr Mojib has no history of misconduct in relation to his immigration status and is anxious to complete the studies for which he came to Australia at such a young age and then to return to his family in Bangladesh to make a life for himself. The Tribunal is urged to give him the second chance that his youth and the particular circumstances of the case appear to warrant.
The Tribunal in the hearing put to the applicant pursuant to the procedural requirement of s 359AA of the Act that the allegations of his conduct contained in the NSW Police Facts Sheet indicates significantly adverse criminal conduct by the applicant towards his former friend/girlfriend. This includes threatening his former friend/girlfriend that he would post intimate images of them, entering the home of his former friend/girlfriend without her consent and brandishing a knife in front of his former friend/girlfriend, self-harming, and causing his former friend/girlfriend to fear that she would be harmed by the knife.
The Tribunal put to the applicant that the factual matrix set out is relevant because it indicates significantly adverse conduct by the applicant. The consequence of relying on this information could be for the Tribunal to draw adverse inferences in relation to the applicant’s conduct as a key discretionary factor to be considered by the Tribunal in exercising its discretion to cancel the visa.

The applicant was given the opportunity to respond. In doing so, the Tribunal noted that it would take into account relevant issues set out in the submissions provided and in psychological reports.
As discussed with the applicant in the hearing, the submissions provided on behalf of the applicant indicate that the applicant does not seek to downplay the seriousness of the offences he committed. He has expressed deep remorse for the actions and admitted that his behaviour was wrong and not aligned with community standards. The applicant intends conduct of this nature would never happen again as is evident from his procuring psychological treatment and attendance of counselling sessions/psychological treatment.
The latest submission seeks to put the circumstances leading to the offences in context. The offence of using an offensive weapon with intent to commit an indictable offence needs to be seen in the context that the applicant took the knife opportunistically and only harmed himself. It is indicated that the applicant has no prior history of breaking and entering. The third offence is indicated as being relatively minor given the small value of the property damaged. The offence of threatening to distribute an intimate image was not meant seriously and the applicant had no intimate images.
It is submitted that all of the offences need to be considered in the context of the psychological reports as to the applicant’s conditions.
In the hearing the applicant indicated that there was nothing further he wished to add in response to the adverse information beyond what is indicated in the written submissions.
The submissions make relevant discretionary factors as to the circumstances in which the ground of cancellation is made out and whether there are any extenuating circumstances beyond the applicant’s control explaining the basis on which the ground of cancellation is made out. Also indicated as a relevant factor is the relative seriousness of the offences put in context.
The Tribunal does take into account the fact that the prison sentence of two years and three months was to be served by way of intensive correction order rather than imprisonment and this could suggest it is the view of the Court that the factual matrix of the offences are not the most serious end of the spectrum or at least a recognition of their one-off nature.
The Tribunal acknowledges that the applicant has been diagnosed in Australia of previously undiagnosed depression and anxiety as a result of the death of the applicant’s mother during childbirth and neglect by the applicant’s father.
The Tribunal also accepts that the applicant has undertaken some counselling as a result of the offences.
Adverse to the applicant is the fact that his conduct leading to the convictions against him was significantly inappropriate in multiple ways – threatening disclosing intimate images, entering premises without consent and brandishing a weapon. The Tribunal does accept some mitigation of this conduct as a result of the applicant’s diagnosis of depression and anxiety and abandonment issues. The Tribunal also considers in the applicant’s favour that he has acknowledged the inappropriateness of his actions and accepted responsibility for them. The Tribunal also takes into account the applicant’s youth and this appears to be a one-off event. However, notwithstanding these matters, the Tribunal considers, as the applicant acknowledges himself, there is culpability on the part of the applicant. The Tribunal considers a degree of conscious inappropriate frightening and threatening criminal conduct on the part of the applicant directed towards the victim. This is considerably adverse to the applicant in the exercise of the Tribunal’s discretion.
The Tribunal acknowledges in the applicant’s favour character references that have been provided on his behalf that testify to his good character and remorse for the events in question. While these references are factors favourable to the applicant they do not, in the Tribunal’s view, fully mitigate the adverse conduct engaged in leading to the convictions.
In terms of the applicant’s purpose in travelling to Australia, it is clear that this was principally for study.
The applicant provided to the Tribunal:
·CoE for the applicant in a Bachelor of Digital Media at Macleay College which started on 25 May 2020 and will end on 8 May 2023.
·The applicant’s academic transcript from Macleay College, dated 5 January 2022, for a Bachelor of Digital Media. The transcript indicates that the applicant was enrolled and has passed 12 subjects, grading ‘Pass’ and ‘Credit’ in two subjects each, and ‘Distinction’ in eight subjects.
The Tribunal accepts the evidence that the applicant has been making good progress in terms of his study in Australia.
The Tribunal discussed with the applicant in the hearing the hardship he will suffer if the visa remains cancelled and compelling reasons he has to remain in Australia. In response the applicant agreed that the key hardship would be his inability to finish his course in which he has made good progress and the waste of significant resources that have been expended in his study in Australia. The applicant indicated that his career will be ruined.
The Tribunal accepts not insignificant hardship to the applicant if the visa remains cancelled particularly in terms of him not being able to complete his course of intended study in Australia, in which he has been making satisfactory progress.
Whilst the Tribunal does not accept that the applicant’s hardship is so extensive that his career would be ruined, as he would be able to undertake further study in Bangladesh, the Tribunal does accept that the cancellation would be a not insignificant setback to the applicant’s career intentions.
The Tribunal accepts a hardship to the applicant if the visa remains cancelled in terms of his inability to apply for many categories of other visas onshore.
Whilst the Tribunal accepts the potential if the visa remains cancelled for the applicant to be an unlawful non-citizen and subject to immigration detention, the Tribunal considers that he would remain eligible for a bridging visa to make his status lawful in the community until he makes arrangements to leave the country.
In terms of the applicant’s fearing serious or significant harm on return to Bangladesh, in the hearing the applicant indicated that other than the negative impact on his career he did not have broader concerns for his safety in Bangladesh. The Tribunal is not satisfied that Australia’s non-refoulment obligations are enlivened such that this would be a discretionary factor in favour of not cancelling the visa.
There is no evidence that there are children in Australia whose interests are affected by the cancellation or that there is anyone attached to the applicant’s visa who would be affected by the cancellation.
The Tribunal balances the relevant discretionary factors canvassed in this decision.
Significantly adverse to the applicant is the illegal, threatening and harmful conduct by the applicant leading to the convictions. The Tribunal makes allowances for the conduct as a result of his diagnosis of depression and anxiety, his youth and the fact that this appears to be a one-off event together with the applicant’s acknowledgement and remorse about the conduct. However, these factors do not fully absolve the applicant of responsibility for the events in question which were disturbing and very unsettling to the victim and other individuals.
The Tribunal accepts significant hardship to the applicant if the visa remains cancelled in terms of him not being able to continue to live in Australia as desired and to continue his, previously successful, course of study.
Weighing these and all discretionary factors both favourable and adverse towards the applicant, the Tribunal determines to exercise its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should remain cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
David McCulloch
Member

[2022] AATA 255

12 January 2022

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