Khanal (Migration)

[2022] AATA 508

Khanal (Migration) [2022] AATA 508 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Uddeshya Khanal

CASE NUMBER:  2108763

HOME AFFAIRS REFERENCE(S):          BCC2020/2926238

MEMBER:David McCulloch

DATE:2 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 March 2022 at 11:49am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant has been convicted of an offence – claimed low level offences – family investment in studies – limited academic progress – genuine intention to progress studies – decision under review set aside          

LEGISLATION

Migration Act 1958, ss 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 28 June 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).

2. The applicant is a citizen of Nepal born on 19 September 1998. The visa that was cancelled was granted on 23 October 2017, expiring on 15 September 2022.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 24 May 2021. The applicant provided a response to the NOICC on 28 May 2021.

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. Information before the Tribunal indicates that the applicant is holding a Bridging visa E Subclass 050 with the following conditions: 8401 (report as directed), 8506 (notify new address), 8564 (must not engage in criminal conduct) and 8104 (work limitation).

6. The applicant appeared before the Tribunal on 28 February 2022 at 9.30am 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.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

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

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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?

11. 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)).

12. The delegate’s decision record and documents on the Department file indicates that, according to a report provided by the NSW Police, the applicant has been convicted of the following criminal offences on 27 January 2021 at the Downing Centre Local Court: one count of common assault with a 9 months’ Community Correction Order commencing on 27 January 2021.

13. In the hearing, he acknowledged this conviction and sentence.

14. 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

15. 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.

16. The NSW Police Facts Sheet outlines the allegations against the applicant relating to the charges.

17. The victims in the matter were AG and FS. On 29 December 2020, AG and FS were working at a McDonald’s in Sydney. At around 4:20am, AG noticed an argument taking place outside his store and walked up to them to try to break up the argument. The applicant recognised AG as Nepalese and started swearing at him. AG walked back to the store where the applicant followed. The applicant yelled at him and made a closed fist with his right hand and drew his arm back like he was ready to punch him. AG feared for his safety and pushed the applicant to create distance. The applicant pushed back and started to punch and kick him.

18. FS heard and came out to the front counter. He tried to hold the applicant back and stop him from punching AG. The applicant continued to wrestle FS, trying to kick and punch him. AG punched the applicant in self-defence.

19. The applicant punched FS in his head. AG moved away and the applicant attempted to follow. He threw a cup of soft drink towards a staff member behind the counter. The applicant punched the electronic order board near the front counter before leaving the store.

20. Police were called and they arrived at the scene as the applicant was running. The applicant was arrested in relation to the common assault and he admitted to being in a fight. Upon being searched, police located seven small clear resealable bags containing cannabis, weighing 11.4 grams. He was arrested for possession of an illegal drug. He admitted that he bought the cannabis for his own personal use.

21. The applicant submitted the following materials to the Department:

    • Notice of penalty issued by the NSW Local Courts dated 27 January 2021 in the total amount of $510.

    ·A statutory declaration by the applicant dated 27 May 2021 in which the applicant declares the following:

    oHe was under the influence of alcohol.

    oHe was outside the McDonald’s store and was asked to leave by an employee.

    oHe entered the McDonald’s store to purchase a beverage. The employee who had asked him to leave was the same person who served him.

    oThe employee questioned his presence inside the store and they started a verbal argument which escalated into a ‘minor’ physical altercation involving the applicant, the said employee and another staff member.

    oPolice attended and he was taken to a local police station.

    oHe was ordered by the Downing Centre Local Court to pay a penalty in the amount of $510.

    oHe apologises to the ‘victim’, police and the court.

    oThis was his only criminal offence.

    oThe offence was not indicative of his general character or temperament.

    oHe was deeply regretful and ashamed.

    oHe feared the cancellation of his visa was prejudicial, particularly if he was not permitted to complete his studies in Australia upon which his parents had made significant financial investment.

    oThe incident was an aberration to his general demeanour and was precipitated by alcohol abuse earlier that same morning.

    ·A statutory declaration by Georgia Bardis dated 26 May 2021, which declares that the applicant was respectful, patient, caring, courteous, kind and considerate. The author believes that the offence that the applicant had committed was a one-off event.

    ·A character reference letter from Prajwal Rai dated 26 May 2021, which states that the applicant was respectful, ‘kindhearted’, and always there to help his friend in need. The author believes the applicant’s offence(s) was a one-off event.

    ·A character reference letter from Parshow Thapa dated 26 May 2021, which states that the applicant was a decent, hardworking and trustworthy person who would not hurt anyone intentionally. The letter further states that the applicant was under stress since the COVID-19 pandemic due to being apart from his family for more than three years. The author believes that the applicant was behaving under the influence of stress and other issues.

    ·A character reference letter from Ajesh Rajbhandari dated 27 May 2021, which states that the applicant was the kindest, extremely loveable, giving and ‘kindhearted’ person. The author was ‘one hundred percent sure’ that the applicant was not an aggressive person and what had happened was ‘an accident under extreme stress and other factors’.

    ·A character reference from Chris Gunn, a store manager of Supamart Tramsheds where the applicant worked, which states that the applicant had a positive attitude and was good with customers. The letter further states that the applicant was not violent and his offences were out of character.

    ·A Confirmation of Enrolment (CoE) for a Bachelor of Business at Canterbury Institute of Management starting from 28 April 2021 to 30 September 2023.

    ·A CoE for a Bachelor of Business at Canterbury Institute of Management starting from 10 August 2020 to 30 April 2023.

    ·A CoE for a Graduate Diploma of Management (Learning) at Kingsford International Institute starting from 10 April 2023 to 7 April 2024.

22. A submission was provided on the applicant’s behalf by his migration agent dated 28 May 2021. The submission indicates that the magistrate imposed a nil fine which indicates that the offence is largely minor in nature. It is noted that Departmental policy deems offences serious if a visa holder has been convicted of one count of assault occasioning actual bodily harm and one count of affray and sentenced to a 12 month good behaviour bond.

23. It is noted that no actual bodily harm was occasioned to one of the victims and the Community Correction Order was well short of a 12 month period. It is indicated that this was the case of an assault but not one occasioning actual bodily harm. It is submitted that the offence is clearly lesser than an offence stipulated in the policy and that it would be manifestly unreasonable to cancel the applicant’s visa.

24. The submission indicates that the applicant is enrolled in a Bachelor of Business from April 2021 until September 2023. Once the applicant graduates he seeks to utilise this degree in Nepal. Total tuition fees are $36,750 which is a significant investment of the applicant’s family. Cancellation would waste these resources but impact negatively on the applicant’s otherwise bright future.

25. It is submitted that the magnitude of the effect of the cancellation would be grossly disproportional to the severity of the applicant’s offences.

26. It is submitted that the applicant has no prior history of misconduct other than the offence. He currently contributes to the community through casual employment at an IGA supermarket. He is a highly regarded employee who has performed his work in a diligent manner. Other references are referred to which support the applicant’s good character.

27. The applicant assumes full responsibility for his misconduct and remains deeply remorseful for the manner in which he conducted himself during the incident. At the (criminal) hearing the applicant extended his sincerest apologies to all parties. He acknowledges his mistakes and is hopeful of continuing his studies as a law-abiding temporary visa holder.

28. A later submission to the Tribunal was provided explaining issues relating to the applicant’s study history in Australia, as follows:

    The purpose of this submission is to assist AAT in understanding the circumstances of my client and his stay in Australia as an international student. I am confident that AAT will make a justified decision to his Merits Review application of his cancelled subclass 500 visa under section 116 of the Department of Immigration’s decision.

    I have been advised that Mr. Khanal first arrived in Australia in 2017 to study Engineering at Western Sydney University. However, he did not have enough marks in his HSC results to enrol and study Bachelor of Engineering (Honours) directly therefore, he was suggested to take the alternate pathway of completing a Foundation Studies of 2 terms followed by a Diploma of Engineering for (Fast Track) and then study his intended course Bachelor of Engineering (Honours).

    Mr. Khanal completed his Non AQF Foundation Studies of 2 terms from 13 Oct 2017 to 28 June 2018. He paid AU $ 12,700 including Non-Tuition fees out of the total AU$ 17,800. Mr. Khanal also paid AU$ 14,700 as a deposit for his Diploma of Engineering (Fast Track) and AU$ 5,294 deposit for his Bachelor of Engineering (Honours).

    Confirmation of Enrolments (CoEs) are attached as evidence.

    After completing his Foundation course Mr. Khanal completed his first semester of Diploma of Engineering from February 2020 to July 2020. Mr. Khanal found the Engineering course daunting and very difficult than he had anticipated therefore with the consultation and advice of his education agent, Mr. Khanal changed his course and enrolled into Bachelor of Business Information Systems at Canterbury Institute of Management (CIM) from August 2020. On the night of 28 December Mr. Khanal got into trouble where he had an altercation with two individuals in a MacDonald’s’ premises at 863 George Street Sydney. NSW Police came and took Mr. Khanal into custody and charged him with common assault and possession of cannabis.

    Mr. Khanal was always clean and had no criminal records all his life and this incident came as a big blow in Mr. Khanal’s life. He could not concentrate in his studies and he got so worried he lost interest in everything. He started missing his classes and could not perform well in his studies. After counselling with his education consultant, Mr. Khanal decided that he could not study Engineering any more.

    DHA issued Mr. Khanal with a Notice of Intention to Consider Cancellation on 24 May 2021, this NOICC got Mr. Khanal more worried however, he came to Australia with an intention to study and return to Nepal to his family with a qualification therefore,

    Mr. Khanal enrolled in a Bachelor of Business at Canterbury Institute of Management from April 2021 and since then he has continued his studies. Attached please find a confirmation letter written by the institution.

    Mr. Khanal has been going through a very stressful time at the moment and would like to appeal for a second chance.

    I respectfully submit that the Visa cancellation of Mr. Khanal was an extremely harsh decision of DHA. Mr. Khanal has no other criminal records, and the Court of Law did not charge Mr. Khanal and only imposed penalty of $510 which was only comprised of court cost and a victim support levy.

    Upon completion of his studies, Mr. Khanal plans to utilize this degree in his home country, Nepal, where Australian education degrees are highly regarded. The total tuition fee of $36,750 for the course is a significant amount of investment and a choice that his family had made after serious deliberations. Cancellation of Mr. Khanal’s visa does not only have the effect of wasting the family’s saving that had been expended for his education, but also impacting Mr. Khanal’s otherwise bright future.

    The magnitude of the effect of the cancellation was tremendous and grossly disproportional to the severity of Mr. Khanal’s offences.

    Therefore, I respectfully submit the Member to kindly consider the application of my client and give him a second chance.

    While representing my client as a Registered Migration Agent I can assure you that I be happy to assist you with further information as required.

    Attached please find relevant documents.

29. Provided on behalf of the applicant in relation to study was:

    ·A letter dated 23 November 2021 from the Canterbury Institute of Management indicating that the applicant has been enrolled in a Bachelor of Business – Information Systems which commenced on 10 August 2020 which is scheduled to complete on 30 September 2023. The letter indicates that the applicant has been paying fees and trying his best to attend classes given the circumstances that he is going through.

    ·Evidence of $14,800 being paid in relation to the above course.

    ·A letter dated 22 February 2022 from the Student Support Manager, Canterbury Institute of Management indicating that the applicant has been enrolled in a Bachelor of Business – Information Systems which commenced on 10 August 2020 which is scheduled to complete on 30 September 2023.  The letter indicates that the applicant has been attending classes regularly and has shown great progress compared to previous semesters.

30. The applicant submitted to the Tribunal a psychological report dated 25 February 2022 from Gordon Lee Chun Yin of New Vision Psychology. The report stated that the applicant underwent a ‘semi-structured clinical interview for psychological assessment’ on 21 February 2022 at New Vision Psychology. The report was prepared based on the information established from the interview with the applicant. The report acknowledges that there can be risks of bias regarding the clinical judgement presented in this report. The applicant relayed his version of events surrounding his criminal charge and conviction. The report stated that the applicant has been experiencing financial strain and persistent worries about getting infected with COVID-19. The applicant was particularly distressed about the possibility of him returning to Nepal. The report indicated a reasonable likelihood of the applicant feeling regretful about his behaviours. The applicant moved out of his partner’s place of residence and is renting a place, due to his concern that his stress would affect his partner’s well-being.

1. The applicant undertook the Depression, Anxiety and Stress Scale 21 (DASS 21), which is a ‘standard self-report quantitative assessment tool designed to indicate a level of symptoms of the three related emotional states of depression, anxiety, and stress compared to the general population’. The applicant scored ‘Extremely Severe’ on the Depression scale, ‘Extremely Severe’ on the Anxiety scale and ‘Moderate’ on the Stress scale for the past one week prior to the date of the report. The report indicated that the apparent primary stressor was the applicant’s concern of his possible return to Nepal and his parents’ financial stress. The applicant was recommended ongoing counselling.

2. The Tribunal put to the applicant in the hearing that the information alleged in the NSW Police Facts Sheet indicated not insignificantly inappropriate aggressive, intimidating and physically harmful conduct towards two individuals leading to a recorded criminal conviction and a nine month Community Correction Order. Whilst the offences may not be of an overly serious nature it was not insignificantly inappropriate behaviour for an individual in Australia on a temporary basis. This could cause the Tribunal to conclude that the applicant has forfeited his right to hold a Student visa.

3. In the hearing, the applicant acknowledged that he had done the wrong thing in relation to the circumstances leading to the conviction. However, he indicated that the NSW Police Facts Sheet is not entirely accurate and that the applicant did not chase the employees back into the store where he assaulted them. The applicant indicated that the Nepalese employee who he spoke to outside the store would not engage with him and he happened to be the person who served him when he was ordering and at this point conflict occurred. The applicant acknowledged that he punched one of the individuals in the head. The applicant indicates that he was intoxicated and that his conduct was out of character and that he has never engaged in similar activity.

4. The Tribunal discussed with the applicant his study history in Australia. The applicant referred to successfully completing his foundation studies, and then progressing with a Diploma in Engineering. The applicant indicated that he was studying this course because of the wishes of his family, not out of his own desire for this course. Eventually, the applicant withdrew from this course and made the decision to progress with a Bachelor of Business. The applicant has been studying this course since August 2020 and has completed three semesters.  The applicant has paid approximately $18,000 towards his tuition costs for his Bachelor’s degree.

5. The applicant referred to financial hurdles currently given that COVID-19 has affected his father’s business in Nepal and his capacity to fund his tuition fees. While the applicant has paid for the first three semesters of his Bachelor course, he has not paid for the current semester. Negotiations with his education provider are allowing the applicant to pay for this course on an ongoing basis, with the applicant making instalments from his own funds based on his current work of 40 per week, increased as a result of COVID-19.  It is because the applicant owes money that his education provider will not release his transcripts.

6. The Tribunal accepts the applicant’s claims as to his negotiation with his education provider to pay fees owing and to make payments on an incremental basis from his work income.

7. In the hearing, the applicant initially indicated that he thinks that in the first two semesters he passed seven out of eight units. Later in the hearing, the applicant indicated a degree of uncertainty as to this.  He is still waiting for the results of his last semester of 2021 which he indicated that he struggled with. Nevertheless, the applicant maintained a commitment to progress with his studies and was confident of eventually being able to obtain his degree.

8. The applicant indicated that there would be considerable hardship to him if the visa remained cancelled as a result of him not finishing his studies and having to return prematurely to Nepal, creating an adverse reaction from his family. The applicant pleaded that his one temporary transgression in the circumstances leading to the conviction should not be applied so harshly to deny his ability to continue to study in Australia.

9. The applicant referred to being in a relationship in Australia with a person from Nepal, who had just finished her studies.

10. Considering all of the evidence, the Tribunal determines that the applicant has had a patchy study history in Australia. The Tribunal is prepared to accept that the applicant completed his foundation studies, but otherwise the applicant has completed no other course during his time in Australia.

11. The applicant has shifted from a focus on studying engineering to studying business. The Tribunal accepts the applicant’s explanation that his engineering studies were mainly to please his parents, and he determined at a point that a more appropriate course of study was in business resulting in him commencing the Bachelor of Business.

12. Including given testimonials from his education provider, the Tribunal is persuaded that the applicant is making some degree of progress in his current studies, although with hurdles along the way in the applicant not passing some units.

13. The Tribunal was persuaded that the applicant is making his best efforts to pay for his studies from his own employment and that there is a reasonable potential of his father to begin again to contribute to the applicant’s study in Australia once his financial difficulties as a result of COVID-19 dissipate.

14. Given that the Tribunal considers that the applicant has an earnest intention to study and complete his Bachelor of Business, the fact that the applicant has not passed all courses and achieved perfect results is not considered an overly adverse matter for the applicant in the exercise of the Tribunal’s discretion. The fact that the Tribunal considers that the applicant has an earnest intention to study and pay for and complete his current course is weighed in the applicant’s favour.

15. The Tribunal accepts not insignificant hardship to the applicant if the visa remained cancelled and he has to return to Nepal without completing the studies. This includes the waste of the $18,000 that the Tribunal accepts that the applicant has already paid towards his Bachelor degree.

16. The Tribunal accepts an additional hardship to the applicant if the visa remains cancelled in terms of it likely ending his relationship with his current girlfriend.

17. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of him not being able to apply for many other categories of visas onshore. The Tribunal accepts that if the visa remains cancelled the applicant could be an unlawful noncitizen and subject to immigration detention. However, the Tribunal considers that the applicant would retain eligibility to hold a Bridging visa to make his status lawful as he makes arrangements to leave the country.

18. The Tribunal notes references provided attesting to the applicant’s good character. These matters are considered in support of the Tribunal not exercising its discretion to cancel the visa.

19. The applicant indicated in the hearing that no children in Australia’s interests are affected by the cancellation. The applicant indicated that he does not have a fear of returning to Nepal of facing persecution or significant harm. Thus, Australia’s non-refoulement obligations are enlivened.

20. The Tribunal weighs discretionary factors. Albeit that the conviction relates to a relatively minor transgression given the circumstances of it and the penalty imposed, the applicant is in Australia as a result of the privilege of holding a Student visa and his entitlement ought to be seriously jeopardised by committing a criminal act, albeit not of an overly serious nature.

21. However, the Tribunal is satisfied, notwithstanding the change by the applicant in his study direction, and not a perfect record of study or payment of his studies currently, that the applicant has had a genuine intention to progress with his studies since arriving in Australia and is particularly committed to continuing with and making best attempts in relation to his current Bachelor of Business. The Tribunal accepts not insignificant hardship to the applicant if the visa remains cancelled in terms of preventing his continuing with his Bachelor of Business, including the waste of resources already spent on his studies in Australia.

22. On balance, the Tribunal considers that matters adverse to the applicant, namely the conviction and the circumstances surrounding it, are outweighed by matters favourable to the applicant, most particularly his current commitment to his study and the not insignificant hardship he will face if the visa remains cancelled. At its heart the Tribunal considers that it would be harsh and unfair to the applicant for his study and other intentions in Australia to be thwarted by what the Tribunal is prepared to accept was an impulsive act generally out of character.

23. The Tribunal does not consider that the circumstances warrant the Tribunal exercising its discretion to cancel the visa.

24. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

25. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member