Kaluthotage (Migration)

[2022] AATA 3553

Kaluthotage (Migration) [2022] AATA 3553 (5 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dilina Sandaruwan Perera Kaluthotage

REPRESENTATIVE:  Mrs D Chandrani Buddhipala (MARN: 9581168)

CASE NUMBER:  2202651

HOME AFFAIRS REFERENCE(S):          BCC2022/18706

MEMBER:Wendy Banfield

DATE:5 October 2022

PLACE OF DECISION:  Canberra

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

Statement made on 05 October 2022 at 3:19pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of the family unit – genuine and continuing relationship – parties separated by AVO – wife’s new relationship in Sri Lanka – applicant convicted of an offence – family violence – plans to complete studies – emotional and financial hardship – business investment in Australia – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 24 February 2022 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). 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 8 April 2022 and 5 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Moneesha Alahakoonge. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   Hearing – 8 April 2022

5. The Tribunal discussed with the applicant the Department’s reasons for refusing his visa and in particular, the current nature of his relationship with his wife. The applicant stated he and his wife were not living together due to an AVO being in place. However, it was submitted the parties consider themselves to be in a continuing relationship and the applicant has continued to support his wife. The applicant did not agree there were grounds to cancel the visa because he claimed the relationship is continuing. This was despite the applicant’s wife having another relationship in Sri Lanka, and the couple being required to live apart in Australia because of his criminal offending against her.

6. The applicant’s wife, Ms Alahakoonge gave evidence that they are not formally separated, and the marriage is ongoing. She agreed they are unable to see each other at present but stated she wants to have the AVO withdrawn. Ms Alahakoonge said the applicant has helped her find accommodation and they have continued to communicate. It was claimed she was afraid for her safety at the time of the violent incident between her and the applicant but claimed the applicant’s behaviour was out of character and she wants to live with him again.

7. The Tribunal considered the evidence of the applicant and his wife that they continue to be in a spousal relationship but found that due to the applicant’s criminal history, there remained grounds to cancel his visa. 

8. Therefore, after the first hearing, on 21 July 2022 the Tribunal invited the applicant to attend a second hearing on 5 August 2022 and advised:

   The Tribunal has considered the material before it but is assessing whether your visa should be cancelled under s 116(1)(g) of the Act.

   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. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations).

   Regulation 2.43(1)(oa) states a visa may be cancelled if the Minister is satisfied that the holder 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)).

   Hearing – 5 August 2022

9. The Tribunal explained to the applicant that the Department had cancelled his visa on the grounds that he was no longer a member of the family unit of the primary visa holder. The applicant was informed that there were also grounds under s.116(1)(g) of the Act and reg 2.43 of the Regulations to cancel his visa. The Tribunal informed the applicant that under the Regulations, a visa may be cancelled if the holder has been convicted of an offence against a law of the Commonwealth or a state or territory, whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed.

10. The applicant asked if it meant his visa could be cancelled, depending on the offence. The Tribunal advised his visa could be cancelled if he had been convicted of an offence. The applicant said he understood. The Tribunal then explained that in his case, the visa may be cancelled and that the Tribunal would consider whether the visa should in fact be cancelled. The applicant was referred to the previous hearing where the Tribunal had discussed its discretion. The Tribunal explained that the reason for the second hearing was to determine whether the applicant accepted there were grounds to cancel his visa due to his criminal convictions and invite him to make any further submissions about why he believes his visa should not be cancelled.

11. The applicant confirmed he had been convicted of offences related to family violence. He was asked about the status of the AVO since he and Ms Alahakoonge had claimed they were seeking to have it removed. The applicant said he was advised an application to withdraw the AVO would be rejected but claimed there was to be a hearing on 16 August. He advised he and his wife are receiving counselling and are helping each other. The applicant said they have rented a house and when the AVO is revoked, he plans to move there as well.

12. The Tribunal referred the applicant to the final orders evidence he submitted regarding his criminal convictions and explained that even if it was accepted that he and his wife were continuing their relationship, there were still grounds to cancel his visa. The applicant said he accepted there were grounds to cancel his visa due to his convictions in Australia. He submitted that he had no other criminal history in Sri Lanka or otherwise other than those that resulted from a domestic violence incident with his wife. The applicant said he has been living in Australia for five years and he has nothing to do in Sri Lanka. He said they will go back once they finish studying but they have both not finished yet.

13. The Tribunal invited the applicant to make any further comments relating to reasons why his visa should not be cancelled. The applicant said his wife needs to complete her studies in early childhood education and he plans to finish his final year as a software engineer. The applicant said he wants to do so after he finishes a course he is currently taking in leadership and management. It was claimed that they will return to Sri Lanka where Ms Alahakoonge wants to lecture, and the applicant hopes to work as a software engineer. The applicant has a franchise business in Australia that he wants to continue operating and also study. 

14. The applicant stated he has complied with all other visa conditions. The Tribunal asked the applicant if he was aware of the legal consequences of cancellation, and he said he was. He was asked if there are any civil or political issues that would prevent him from retuning to Sri Lanka. The applicant referred to there being criminals in Sri Lanka and said his wife’s boyfriend has political connections which scared him. He said the person threatened him via phone messages and due to the general situation in Sri Lanka, he is afraid for his life. The applicant confirmed his parents and a brother continue to live in Sri Lanka but they have not experienced any problems so far.

15. The applicant advised he only requires a short time to complete his software engineering studies to secure his future. He also advised his relationship with Ms Alahakoonge is continuing and they do not intend to separate. According to the applicant, if they have to return to Sri Lanka, both their futures will be in jeopardy. He said he knows he did something wrong and is just asking for a chance.

16. Ms Alahakoonge submitted that the applicant had issues with anger management but his behaviour that led to criminal charges was not his character. She said he had never been like that before but their two-year separation while she was in Sri Lanka was an issue. Ms Alahakoonge said they want to continue the marriage and the applicant is helpful to her in that he pays her fees and support her financially. She said she has two years of her studies to go. The Tribunal asked Ms Alahakoonge if the applicant could return to Sri Lanka while she finishes her studies, but she claimed she spoke to a counsellor because she was depressed, and she wants him by her side for support and to help with rent. The witness said it was hard for her when they were separated. Ms Alahakoonge said she they could not afford to both study and that when she completes her course, the applicant will continue his.

17. Ms Alahakoonge advised that in the last six months she has been stressed and could not attend all her classes. She said previously while with her husband she studied well but has since had to reduce her workload and could not face her exams. It was submitted both parties want to rectify the situation and move forward.

18. The representative advised the Tribunal that it was the applicant who called the police during the domestic dispute between the parties. She said he had wanted someone to help and that in Sri Lanka, the police would settle the matter between the couple and go away. It was claimed the police exaggerated and the applicant had not wanted to hurt his wife or end the marriage. The representative stated there is an application to remove the AVO on 16 August with the assistance of a lawyer. It was submitted the applicant and Ms Alahakoonge want a chance to stay in Australia and finish their studies.

19. 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

20. 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?

    s 116(1)(g) - prescribed ground

21. 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 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.

22. Regulation 2.43(1)(oa) states that in the case of a the holder of a temporary visa, the visa may be cancelled if the visa holder has been convicted of an offence against a law of the Commonwealth, a State or a Territory. The Subclass 500 Student Visa the held by the applicant is a temporary visa. On 5 April 2022 the applicant was convicted of the offences of: Intentionally choke etc. person without consent; Stalk/intimidate intend fear physical harm; Armed w/i commit indictable offence; Assault occasioning actual bodily harm.

23. 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

24. 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’.

    ·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

25. The applicant came to Australia as a student in 2017. He and the primary visa holder were married in Sri Lanka in 2018. Ms Alahakoonge was granted her own student visa on 19 January 2018 and joined the applicant in Australia. The applicant then applied for, and was granted, a subsequent entrant visa on 2 November 2018. The Tribunal is satisfied the applicant travelled to Australia as a student and was a genuine dependent applicant. According to his statutory declaration of 1 April 2022, the purpose of his stay in Australia as a dependent applicant was to support his wife so she could concentrate on her studies. However, the applicant engaged in acts against his wife that led to convictions for criminal offences and an apprehended domestic violence order being imposed. The applicant stated that while they were apart, he helped Ms Alahakoonge secure accommodation and paid her rent but was then unable to assist her because his visa had been cancelled and he was not permitted to work. The Tribunal finds the applicant’s purpose for staying in Australia was adversely affected and then ceased due to his own actions.

26. The Tribunal considered whether the applicant has a compelling need to remain in Australia. The applicant claimed that if his visa is cancelled it will damage the relationship. The Tribunal considers the relationship between the applicant and his wife has been damaged already by infidelity and family violence even though the parties claim it is continuing. In the circumstances, and based on the evidence of the parties themselves, the Tribunal considers the applicant has caused significant disruption to Ms Alahakoonge rather than providing support. The applicant submitted he previously studied software engineering and wants to complete further studies in Australia. He also said he hopes to start a business in that field. Ms Alahakoonge said the couple have been unable to study at the same time and the applicant has but his education on hold but no satisfactory reason was given and the Tribunal does not accept that is the case.

27. At the first Tribunal hearing the applicant claimed that without him, his wife will have no one to support her. He advised he had purchased a steam cleaning business with a customer base in Australia. The Tribunal finds that most students in Australia support themselves without a partner accompanying them and there would be nothing preventing the applicant from working in Sri Lanka and continuing to support Ms Alahakoonge from there. For the above reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.   

    ·     the extent of compliance with visa conditions

28. There is no evidence the applicant failed to comply with any mandatory conditions attached to his visa. However, despite the applicant being informed about the character requirements for remaining in Australia when his visa was granted, he did not obey the law and engaged in criminal activity. The applicant was then convicted and sentenced for criminal offences against his spouse. This weighs against the applicant in assessing whether his visa should be cancelled.

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

29. Regarding the degree of hardship that may be caused by the applicant’s visa being cancelled, it was submitted the applicant would be unable to continue his cleaning franchise business in Australia that he has spent a lot of money on. He submitted is wife needs the support and his current situation is the result of “one mistake.” The applicant stated he cannot leave Australia under these circumstances, his parents in Sri Lanka have no money and his whole life will be affected.  Ms Alahakoonge told the Tribunal she wants the applicant to stay in Australia because if they are separated, it will be very hard for her. She said they want to continue their marriage and the applicant has been paying her fees as well as supporting her financially.

30. The Tribunal has assessed the evidence and submissions made regarding the degree of hardship that will be caused if the applicant’s visa is cancelled. Ms Alahakoonge will be able to continue her studies in Australia while she holds a student visa, and the applicant may continue supporting her financially from his home country if he chooses to. Nevertheless, the Tribunal accepts there will be a degree of hardship for the couple resulting from the applicant’s visa being cancelled and has given some weight has been given 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

31. In this case, the circumstances in which the ground for cancellation arose were due to family violence in the context of a relationship breakdown, but where the parties have since claimed the marriage is continuing. The evidence was that the applicant’s wife Ms Alahakoonge visited her parents in Sri Lanka and was unable to return for nearly two years due to border closures. During that time, she became involved in another relationship that the applicant discovered when his wife had returned to Australia. The applicant’s discovery, and Ms Alahakoonge’s admission led to a violent confrontation that involved the police being called and the applicant charged with criminal offences. The applicant was later convicted and sentenced for those offences. An AVO was also issued that prevented the applicant from seeing or contacting Ms Alahakoonge.

32. In their evidence, the parties insist the applicant’s behaviour was not his usual character and they have since received counselling and been reconciled. While this may be the case, the Tribunal is concerned that the applicant was provided with information attached to his student visa related to Australia’s laws concerning domestic and family violence specifically, and information about strict character requirements but he did not comply with Australia’s laws. There is nothing to indicate the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. In addition, the charges against him involved physical violence and were serious.

33. The applicant did not explain how and why he and Ms Alahakoonge reconciled despite an AVO preventing contact being in place at the time of both Tribunal hearings, and Ms Alahakoonge’s involvement in another relationship while she was in Sri Lanka. It appeared to the Tribunal that the applicant’s objection to his visa being cancelled was primarily related to his desire to continue his studies in future, and to be able to operate his franchise business, both of which would require him to being Australia, rather than for reasons of wanting to support his wife. Having considered the evidence in this case, the circumstances in which the grounds for cancellation arose weigh against the applicant in the Tribunal’s assessment of whether his visa should be cancelled.

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

34. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department

    ·     whether there would be consequential cancellations under s 140

1. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

   ·     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

2. The cancellation of the visa means the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not a sufficient reason for the applicant’s visa not to be cancelled.

   ·     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.

3. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. During the second Tribunal hearing the applicant claimed he was “scared” to return to Sri Lanka because of unrest in the country generally. He also claimed that the person his wife was involved with in their home country has political connections and has made threats to the applicant by phone. The Tribunal considered the applicant’s claims but notes his evidence that his parents and brother continue to reside in the country without issue, and he and Ms Alahakoonge intend to return after completing courses of study in Australia.

   ·     if it is a permanent visa, whether the former visa holder has formed strong family, business or other ties

4. The Subclass 500 Student Visa is not a permanent visa.

   ·     any other relevant matters

5. There are no other relevant matters to be considered.

   Conclusion

6. The Tribunal has assessed the applicant’s circumstances individually and cumulatively. Although there ware some aspects of the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied the majority of considerations weigh against the applicant. In particular, the offences for which the applicant was convicted were serious, they were perpetrated against his spouse and included actual physical harm. For the reasons outlined in this decision, the Tribunal considers it appropriate in this case to exercise the discretion to cancel the applicant’s 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.

   Wendy Banfield
   Member