Kamboj (Migration)

[2021] AATA 474

Kamboj (Migration) [2021] AATA 474 (20 January 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saurabh Kamboj

CASE NUMBER:  2002461

DIBP REFERENCE(S):  BCC2019/3953690

MEMBER:David McCulloch

DATE OF DECISION:  20 January 2021

DATE CORRIGENDUM

SIGNED:10 March 2021

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

On Page 1 of the Decision Record, it incorrectly reads that the date of decision was 20 January 2020. This was a typographical error. The date of decision should read 20 January 2021.

David McCulloch
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saurabh Kamboj

CASE NUMBER:  2002461

HOME AFFAIRS REFERENCE(S):          BCC2019/3953690

MEMBER:David McCulloch

DATE:20 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 January 2021 at 11:43am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – potential ongoing risk to minors – applicant convicted of an offence – applicant delayed return to studies – financial hardship – custodial sentence reduced – professional mental health care not pursued – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 3 February 2020 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 India born on 13 January 2000. The visa that was cancelled was granted on 27 July 2018, expiring on 8 December 2021.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 13 January 2020. The applicant did not provide a response to the NOICC.

4. 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.

5. The applicant appeared before the Tribunal on 18 January 2021 to give evidence and present arguments. The hearing occurred with the applicant appearing by video from Villawood detention centre, where the applicant is in immigration detention. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

6. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing in person.

7. 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

8. 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?

9. 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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.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)).

10. 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 31 July 2019 at the Parramatta District Court: Two counts of stalk/intimidate intend fear physical etc harm, with a 6 months community correction order commencing on 31 July 2019; possess child abuse material – T1 with a 12 months community correction order commencing 31 July 2019.

11. A submission provided on behalf of the applicant to the Tribunal indicates that the applicant was originally found guilty of the three offences and sentenced on 28 February 2019 to 18 months full-time custody, with a non-parole period of 13 months and five days. This sentence was appealed resulting in the reduced sentence on 31 July 2019.

12. In the hearing the applicant acknowledged the convictions as stated and that the ground of cancellation was made out.

13. 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

14. 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.

15. The Tribunal file in relation to the applicant’s application for review of a decision to refuse a bridging visa contains screenshots of the NSW Police Facts Sheet sent to the Tribunal by the applicant.

16. The facts sheet states that the applicant is the accused in the matter, and the named victim was 12 years old.

17. Sometime in September 2018, the victim was walking to Flemington railway station to catch a train to school when the applicant approached her from behind, tapped her on the back, and engaged her in conversation. The applicant outlined his personal information, and asked the victim’s age, to which she responded that she was 12. The applicant asked the victim about what school she attends, where she lives, and how she gets to school. The applicant took out his mobile phone and asked the victim for her number. The victim felt pressured and put her number into the applicant’s phone. The applicant and victim then parted ways.

18. The victim contacted her father Mr Lee to inform him what had happened. The applicant attempted to call the victim, and she did not answer. After school, the victim checked her phone and noticed several missed calls from the applicant. When the victim arrived home, she saw three text messages from the applicant. The victim did not reply and reported it to her father, who sent the applicant a message telling him to stop contacting the victim.

19. Five or six weeks later, the victim was walking home from school when she saw the applicant walking with five or six other people. The applicant stared at the victim until she passed him; when the victim looked back, the applicant was still watching her, and then waved at her.

20. On 30 November 2018, the victim was dropped off at Flemington railway station around 6:45am. The victim sat down at a bench to wait for a train. At 6:51am, the applicant arrived and walked in the opposite direction from the victim, and then turned and looked at the victim, before turning away again. The applicant did this several times. The applicant approached the victim and sat down next to her, asking if the victim recognised him. The victim felt fearful of her safety and confirmed that she knew the applicant. The applicant began asking what time the victim returned from school and if she wanted to be friends, noting that she returns from school around 4pm every day.

21. The victim did not answer and said that her parents did not want her to talk to the applicant. The applicant told the victim that her parents do not have to know, and said that they can still be friends. The applicant asked the victim if she would like to meet with him in a park after school, which the victim declined. The applicant asked why in a different tone which frightened the victim, and she boarded the next train and reported the incident to her parents. The victim and her father met at Flemington station that afternoon and reported the incident to the station master, who notified the police. The victim and her father attended Auburn police station and provided a statement regarding the three incidents.

22. The police obtained CCTV footage and checked the applicant’s mobile number to confirm his identity. Around 9pm on 14 December 2018, police officers attended the applicant’s address, where they arrested the applicant and questioned him about the allegation. The applicant stated that the victim’s father had texted him and told him not to speak to the victim, and he had said sorry. The applicant said that he believed the victim was 11 or 12 years old. The police searched the applicant and found a mobile phone, which they checked. The police observed pornographic material on the applicant’s phone, including several videos of child abuse material.

23. The applicant was taken to Auburn police station and interviewed. The applicant said that he had seen the victim two to three times before approaching her in September 2018, and that he knew she was around 12 years old. The applicant said that he had called the victim so that she could have his number, and called again as she did not answer. The applicant admitted that he had approached the victim on 30 November 2018 and asked her to meet in a park, and said that the child abuse material on his phone was sent by friends via Whatsapp, that he did not know why he saved it, and that the children in the video are 12 to 14 years old. The applicant stated that he was aware of the offences, that he knew it was wrong, that he knows it is not allowed in India or Australia, and that he loves Australia.

24. In the hearing, the Tribunal put to the applicant adverse information pursuant to the procedural requirements of s.359AA of the Act. The Tribunal put to the applicant that the factual underpinnings as set out in the NSW Police Facts Sheet together with the convictions themselves indicate that there were ongoing attempts by the applicant to solicit the attentions of a 12-year-old girl despite being warned by her father to stop. When police arrested the applicant child sex abuse material was found on the applicant’s phone. The information is relevant because the factual circumstances and convictions demonstrate inappropriate behaviour towards a minor which, combined with the presence of child sexual abuse material on his phone, could demonstrate a sexual interest in minors. The facts and the convictions could cause the Tribunal to conclude that the applicant is not a desirable person to remain in Australia on a student visa, or otherwise including because he is of potential ongoing risk to minors.

25. The Tribunal indicated to the applicant in the hearing that it had received, one working day prior to the hearing, a submission, a psychologist’s report and supporting statements from the applicant and other individuals which set out a range of claimed exculpating factors. This information is outlined further below. The Tribunal indicated to the applicant that it would be considering all of these statements and submissions as arguments in response to the adverse information. The Tribunal also gave the applicant an opportunity to make any oral comment in the hearing to the adverse information.

26. The written information included the following statement by the applicant, psychologist’s report as well as supporting statements from others:

    ·An undated letter from the applicant entitled ‘Sincere Apology’, stating that he had pleaded guilty to the charges leading to his situation. It is stated that the applicant is remorseful and regrets his actions, and that he has hurt the victim, her family and the applicant’s own family. Reference is made to the applicant coming to Australia to make a better life for himself and his family, and that he has struggled with forgiving himself and making peace, but he must do so to move on. The letter states that the applicant accepts what he did was wrong and was a serious offence. Mention is made of the applicant’s self-reflection, and that he is not the same person. It is stated that he understands his actions were stupid, and he has tried to better himself in every way. It is stated that the applicant is now 21, and is not the same person, and is determined not to let his past dictate his future. The letter states the applicant takes full responsibility and is going to work hard to make amends and turn his life around.

    • Psychological report for the applicant by Sam Borenstein, dated 15 May 2019. This report was provided for the purpose of the applicant’s appeal against the sentence for his convictions. The report goes through the applicant’s migration and criminal background, and outlines the discussion between Mr Borenstein and the applicant at an interview held on 13 May 2019. The applicant stated his remorse, confusion, and that he missed his family, and went through symptoms of depression. At various points in the interview it is indicated that the applicant does not have a sexual interest in minors. It is stated that the applicant showed a Personality Assessment Screener (PAS) score of 23, indicating moderate potential for emotional and/or behavioural problems. The applicant scored 21 on a Depression Anxiety Stress Scale, indicating extremely severe symptoms of depression, anxiety, and moderate symptoms of stress. The report states that it is Mr Borenstein’s opinion that the applicant was functioning in a regressed emotional psychological state at the time of the offence, and was seeking to connect with younger persons in keeping with his lack of emotional maturity, and the applicant is estimated to have been functioning no better than a 12–14-year-old. It is stated that the applicant appeared psychologically immature and lacking emotional resilience. Further research is referenced, stating that the applicant has time to develop more positively. The report notes the applicant has a high level of guilt, shame and remorse. Mr Borenstein states that, in his opinion, the likelihood of the applicant reoffending is minimal, given the applicant’s guilt, shame and remorse, coupled with available psychological treatment.
    • An undated support letter for the applicant from Arun Kamboj, stating that the applicant is a person of good moral character despite the circumstances, and that Arun has known the applicant for almost all of his life. It is stated that, despite the applicant’s bad decisions and actions, he is a good person who needs to work on himself, and that the applicant is currently doing that. It is stated that the applicant is remorseful and willing to do anything to get his life back on track, that he deserves a second chance, and that returning him to India will ruin any chance he has to turn his life around.
    • A support letter for the applicant by Vishesh Kumar, dated 14 January 2021, stating that he and the applicant have been good friends since they were children, and shared a house in Australia. It is stated that the applicant is a good, law-abiding person. Reference is made to the seriousness of the applicant’s charges. The letter mentions the applicant being kind and helpful, and going out of his way to do what is right and help others. It is stated that the applicant is genuinely remorseful and has accepted responsibility for his actions, and that he will be a better person after this.
    • An affidavit from the applicant’s father and mother dated 13 January 2021, stating that they are aware of the charges against the applicant, and that they were shocked and depressed when they learnt of his charges. It is stated that they have spoken to the applicant many times and reminded him of his responsibilities and bright future. Reference is made to the applicant’s remorse and shame. It is requested that the applicant be permitted to finish his studies, and the letter states that the applicant’s parents commit to support him financially during his studies.

27. In the applicant’s oral response in the hearing he indicated that he accepts that he has made the biggest mistake. He was only 18 and stupid but that is not an excuse. He takes full responsibility for what happened. It will not happen again and his intention is to complete his studies and return to India.

28. The Tribunal deals with relevant discretionary factors including outlining relevant submissions, oral statements by the applicant, and written statements made by the applicant and others in relation to those factors.

29. The Tribunal considers the circumstances in which the ground for cancellation arose and whether there are any extenuating factors beyond the applicant’s control.

30. The submission provided on behalf of the applicant refers to the psychologist’s report in terms of mitigating factors as a result of the applicant’s psychological conditions explaining the circumstances in which the ground for cancellation is made out. It is submitted that since the assessment was conducted in May 2019 the applicant has matured significantly. The written statement by the applicant indicates that he has insight into his offending behaviour. The applicant has disclosed the offence to his parents and therefore has engaged in appropriate help-seeking behaviour for the purpose of getting support and managing his responsibilities.

31. The applicant indicated in the hearing that he does not have a sexual interest in minors. His intention in approaching the girl was because he missed his contact with young relatives in India. He had no desire to hurt this girl, he wanted to talk to her as a friend. He knows now that it was a mistake to do this.

32. The Tribunal asked the applicant if he had received ongoing psychological support which had been recommended. In response, the applicant indicated that he had not.

33. The applicant’s representative made oral submissions at the hearing that the applicant’s immaturity on arrival in Australia was a product of his mother having done everything for him in India. In Australia, he has been on a steep learning curve and is now better able to stand on his own. He has not undertaken continuing psychological support as recommended because culturally this is better achieved through advice from family members. In this respect, subsequent to the initial psychological consultation, the applicant has revealed the offences to his family.

1. The Tribunal accepts diagnosis of mental health conditions as explaining to some degree the circumstances leading to the convictions.

2. The Tribunal considers the purpose of the applicant’s travel to and stay in Australia and breaches of conditions of his visa. The applicant was enrolled in a Diploma of Business due to commence on 22 October 2018 leading to a Bachelor of Business due to commence on 21 October 2019. The submission provided on behalf of the applicant indicates that he sat his exams for the diploma course in March 2019 but failed the exams. The applicant was unable to concentrate on his studies due to his recent sentencing to a full-time custodial sentence. The applicant did not return to these studies.

3. The submission provided on behalf of the applicant indicates various exculpating factors in explaining his failure to be enrolled in a registered course for a period.

4. The Tribunal accepts the difficulty for the applicant in continuing with his studies in light of the custodial sentence which had been imposed and the appeal process. The failure by the applicant to be enrolled in a registered course from 4 April 2019 is not considered as adverse to the applicant. This is also relevant to a discretionary factor as to non-compliance with visa conditions, namely his failure to be enrolled in a registered course as a breach of condition 8202.

5. It is submitted, and confirmed by government records, that the applicant on 2 October 2019 re-enrolled in the Diploma of Business. This demonstrates in the applicant’s favour an intent to continue with his studies at the point after the appeal process had concluded reducing his sentence to a non-custodial sentence.

6. However, government records indicate that this enrolment was cancelled on 14 February 2020 for non-payment of fees. This was discussed with the applicant in the hearing. In response the applicant indicated that he did not continue with this course after his student visa was cancelled, when his migration agent advised him he could not study.

7. The Tribunal does not draw an adverse inference in the ceasing of this study.

8. It was also noted by the delegate that the applicant appeared to breach condition 8202(2) of his visa which requires him to maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. The applicant was granted the visa at a Bachelor level and he ceased to be enrolled in his Bachelor of Business on 4 April 2019.

9. The same submissions are made on behalf of the applicant as to the breach of this visa as in relation to his failure to be enrolled in a registered course.

10. The Tribunal does not draw any adverse inference from this failure.

11. The Tribunal considers the hardship to the applicant if the visa is cancelled. Statements by the applicant and submissions indicate that cancellation would cause significant financial hardship for the applicant and his family given the investment that has been made in the applicant’s study in Australia. The fact of the applicant returning to India without completing his education will result in the inability of the family to recover the money that has been invested.

12. In the hearing the applicant indicated that the key hardship to him if the visa remains cancelled will be it will be very hard for him to live in India without a qualification.

13. The Tribunal is not persuaded that the applicant would not be able to make a life for himself without tertiary qualifications in India. Nevertheless, the Tribunal is satisfied that there would be not insignificant hardship to the applicant in terms of achieving in Australia his education goals, hampering opportunities on return together with funds wasted as a result of the investment in studying in Australia. The Tribunal accepts hardship to the applicant if the visa is cancelled.

14. The Tribunal considers that a relevant discretionary factor in this matter is the ongoing risk of the applicant to the Australian community, particularly underage girls. The Tribunal put to the applicant that the fact that the psychologist had determined in May 2019 that the applicant had the mental age of a 14-year-old in the context of the offences could create concerns of an ongoing risk for the applicant in the Australian community notwithstanding that two years have passed. In response to this issue in the hearing the applicant indicated remorse for what he has done. He cannot prove that he will not do it again but his intention is to focus on studies and that he is now more mature.

15. The psychologist’s report indicates the opinion that ongoing psychological treatment for the applicant together with his level of guilt, shame and remorse will mean that the likelihood of reoffending will be minimal, in the psychologist’s opinion. As indicated, the applicant indicated in the hearing that he has not sought ongoing psychological support as recommended. It is submitted that this is substituted by advice obtained from family and friends.

16. The Tribunal is not satisfied that this is an appropriate substitute for professional mental health care. It is adverse to the applicant including in terms of him being an ongoing risk that he did not take up the psychologist’s recommendation that he seek ongoing psychological help to mitigate that risk.

17. It is submitted on behalf of the applicant that the fact that his custodial sentence was reduced to a community correction order demonstrates that he is not a risk to the community.

18. It is further submitted on the applicant’s behalf that, as made clear by supporting individuals in Australia, the applicant has a support network in Australia meaning the applicant is better placed to mitigate the risks that led to the ground for the cancellation of the visa.

19. The Tribunal accepts there are individuals in Australia who are in a position to provide support to the applicant and have attested to his character.

20. Considering all of the evidence relating to an ongoing risk from the applicant to minors, the Tribunal accepts contrition on behalf of the applicant and that he has indicated that he is not a future risk. The Tribunal is concerned at the fact at the time of the offences the applicant was determined as having a mental age of only 14 years old which could suggest ongoing immaturity on the part of the applicant notwithstanding that a period of time has now passed. The Tribunal is concerned that the applicant did not take up the psychologist’s suggestion to seek ongoing counselling support, which was a key recommendation made in terms of mitigating the risk.

21. While the Tribunal does not consider that the risk of the applicant reoffending is a high risk, the Tribunal nevertheless considers that there is some risk of reoffending, in light of all of the circumstances. The fact of there remaining at least some risk of the applicant reoffending is not insignificantly adverse in terms of discretionary factors.

22. It is submitted on behalf of the applicant that the applicant’s conviction does not amount to a substantial criminal record as defined in the Act and therefore the applicant’s conduct falls significantly below the standard set by the legislation that mandates cancellation. It is submitted on behalf of the applicant that it would be appropriate for the Tribunal to use its discretionary authority not to cancel the visa and that a formal warning would be the appropriate course of action for the Tribunal.

23. The Tribunal asked the applicant in the hearing if he fears persecution or significant harm on return to India. In response the applicant referred to potentially being teased in India as a result of what has occurred in Australia but indicated that his intention is to return to India and he has no intention of applying for a protection visa. This therefore is not a relevant discretionary factor, in the Tribunal’s view.

24. The Tribunal weighs discretionary factors. Key factors follow.

25. The circumstances leading to the ground of cancellation being made out, the underpinning facts leading to the convictions demonstrate, in the Tribunal’s view, conduct which undermine to a degree the applicant’s entitlement to remain in Australia on a student visa, notwithstanding diagnosed mental health conditions. Notwithstanding that some time has passed to facilitate increased maturity for the applicant, and acknowledging remorse and contrition on behalf of the applicant, the Tribunal nevertheless considers that there is some ongoing risk to the community in Australia posed by the applicant. These matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

26. The Tribunal accepts a degree of remorse and contrition on behalf of the applicant, and that mental health conditions were at least some of the causes of the circumstances leading to the offences. The Tribunal accepts not insignificant hardship to the applicant if the visa remains cancelled. The Tribunal accepts that the applicant has individuals who have attested to his character and are in a position to provide support in Australia. The Tribunal accepts that the applicant has disclosed the offences to his family in India and that they are providing support. The Tribunal accepts that the offence does not amount to a substantial criminal record and that the conviction did not result in a custodial sentence. These matters weigh against exercising the discretion to cancel the visa.

27. The Tribunal does not draw any adverse inference from the applicant’s study history in Australia, or the breach of visa conditions.

28. However, balancing these and other enumerated discretionary factors, the Tribunal determines that matters in favour of exercising the discretion to cancel the visa outweigh matters against exercising the discretion.

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

    decision

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

    David McCulloch
    Member