Lamsal (Migration)

[2024] AATA 3102

Lamsal (Migration) [2024] AATA 3102 (30 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rammani Lamsal

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2410440

HOME AFFAIRS REFERENCE:               BCC2023/3711716

MEMBER:David McCulloch

DATE:30 July 2024

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 30 July 2024 at 3:10pm

CATCHWORDS 
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant has been convicted of an offence – a compelling need for the applicant to remain in Australia – applicant is a member of the wife’s family unit – support his wife while she completes her studies – significant hardship to the applicant’s wife – abstinence from alcohol – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 April 2024 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 10 January 1995. The visa was granted on 21 December 2022 for a stay period until 15 March 2025.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 21 August 2023. No response to the NOICC appears to have been provided in the timeframe requested. After the refusal decision, the representative provided to the Department documents that are claimed to have been sent in response to the NOICC. These documents and relevant submissions are indicated below.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against the law of the Commonwealth or 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 11 July 2024 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms Reena Adhikari. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

6. While there were other individuals who have provided statements who were proposed by the applicant as witnesses in the hearing, the Tribunal did not have questions for those witnesses and accepted their written statements at face value.

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

8. 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

9. 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?

10. 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). In the present case, reg 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)).

11. The NOICC indicated that the Department had received a copy of a Court Order Notice made on 21 June 2023 by the Local Court of NSW at Blacktown stating that the applicant was convicted of the following offences in Australia and sentenced as follows:

    ·2023/00194274-001 / Seq 1 - Actual offence - Common assault (DV)-T2. The applicant was convicted and sentenced to a Community Correction Order for a period of 12 months to commence on 21 June 2023.

    ·2023/00194274-002 / Seq 2 - Actual offence - Stalk/intimidate intend fear physical etc harm (domestic)-T2 . The applicant was convicted and sentenced to a Community Correction Order for a period of 12 months to commence on 21 June 2023.

    ·2023/00194274-003 / Seq 3 - Actual offence - Assault occasioning actual bodily harm (DV)-T2. The applicant was convicted and sentenced to a Community Correction Order for a period of 12 months to commence on 21 June 2023.

    ·2023/00194274-004 / Seq 4 – Actual offence - Common assault (DV)-T2. The applicant was convicted and sentenced to a Community Correction Order for a period of 12 months to commence on 21 June 2023.

12. The submission on behalf of the applicant to the Tribunal concedes these convictions with explanatory circumstances outlined.

13. In the hearing the applicant acknowledged the convictions and sentences.

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 3 (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 (that is, 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 Departmental file contains a NSW Police Facts Sheet in relation to the allegations against the applicant leading to the convictions. This is relevant to the circumstances in which the grounds of cancellation are made out.

17. Relevantly the Facts Sheet includes the following. It indicates that the applicant has a heavy dependence on alcohol and consumes copious amounts on a daily basis. He has no previous charges but the victim has reported an assault of a more serious nature based on the fact that a broomstick was used. The applicant and his wife have been married for the past seven years. The wife is on a student visa and the applicant is listed as a dependent on the visa.

18. The applicant has been dependent on alcohol for the entirety of the relationship. He becomes intoxicated to the point where he regularly passes out on the living room floor. When he becomes intoxicated he becomes extremely aggressive towards the victim and has on many occasions assaulted her physically. The applicant’s wife indicates that she has lost count of the number of attacks.

19. Sequence one of the charges relates to an incident that occurred on 21 April 2023 where both parties were at home with a two-year-old child. The applicant was drinking heavily and became extremely intoxicated and argumentative. A disagreement broke out. During the argument the applicant circled behind the victim and took hold of a broomstick constructed from hard aluminium. He struck the victim on her back with the broomstick using significant force in making contact with the upper portion of her back in between the shoulder blades. The victim felt pain. She did not fight back or complain for fear of further assaults. The victim was left with a large bruise in the area but did not report to police out of fear and the fact that they were flying to Nepal the next morning.

20. Sequence two relates to events that took place on 17 June 2023. Both parties were at home. The applicant had been drinking heavily the previous night. At 10:30 am the victim confronted the applicant about his deteriorating behaviour. She said she was going to take action in relation to the behaviour and said she had had enough. In response, the applicant threatened to kill his wife with a knife before the applicant would be deported. He then stormed out of the apartment and left for work.

21. On 18 June 2023 the victim attended Blacktown Police Station to report the above incidents. She indicated that she feared for the safety of her child and herself. She provided a Domestic Violence Evidence in Chief statement as well as a supplementary written statement.

22. On the same day police attended the applicant’s workplace and placed him under arrest for the above offences. Police attended the parties’ home and gathered various pieces of evidence. When in custody, the applicant was served with a copy of an apprehended violence order as well as a mini brief containing all available evidence.

23. As indicated, following the refusal decision the applicant’s representative sent various documents which are claimed to have been sent in response to the NOICC, but not received. These documents as set out by the representative are:

    ·Community Correction Order

    ·Stat Dec by Reena Adhikari (Applicant's spouse)

    ·Stat Dec by Rammani Lamsal (Applicant)

    ·956 form

    ·Child Protection letter from Communities &Justice.

    ·Final Apprehended Domestic Violence order

    ·Form 31 summary of Part 9 of Act for Detained Person (NSW Police Force )

    ·Reason for bail decision by police officer

    ·Provisional order.

24. The following documents were provided to the Tribunal:

    ·Submission on behalf of the applicant dated 10 July 2024

    ·Statement by applicant dated 7 July 2024

    ·Witness statement of Reena Adhikari dated 7 July 2024

    ·Witness statement of Bhaveshkumar Patel, employer, dated 7 July 2024

    ·Witness statement of Ketankumar Patel, employer, dated 6 July 2024

    ·Witness statement of Mohammed Sarwar Uddin, friend, dated 7 July 2024

    ·Witness statement of Sandip Kumar Patel, neighbour and friend, dated 7 July 2024

    ·Witness statement of Kazi Faruque, employer, dated 6 July 2024

    ·Psychemedics receipt for 6 month hair follicle test

    ·A report from Mr Chafic Awit, registered psychologist, dated 9 July 2024

    ·Australian Federal Police National Police Certificate for applicant dated 24 June 2024

    ·Letter from Communities and Justice NSW dated 15 August 2023

    ·Copy of a New South Wales birth certificate for Reeyansh Lamsal born on 23 January 2021

    ·Confirmation of enrolment for Ms Reena Adhikari for a Bachelor of Community Services.

25. The above submissions, statements and documents contain information relevant to the exercise of the Tribunal’s discretion. These, together with the applicant and his wife’s evidence in the hearing, are discussed below under the respective headings of relevant discretionary matters.

    The purpose of the applicant’s travel to and stay in Australia – assessment whether the applicant has a compelling need to travel to and remain in Australia

26. It is clear that the applicant was granted a visa on the basis of being a member of the same family unit as his wife, Ms Reena Adhikari, who held the primary student visa. The applicant first came to Australia in September 2017 as a dependent on his wife’s student visa. Further Subclass 500 Student visas were granted again with the applicant as a dependent. The period of stay on the latest visa is 15 March 2025. It is submitted that the purpose of the visas were for the applicant to accompany, and remain in Australia with, his spouse.

27. It is submitted that the applicant and his wife remain in a spousal relationship and both care for the young child born on 23 January 2021. The applicant’s wife indicates that she is studying a Bachelor of Community Services and that the consequences of the cancellation have been deeply challenging. The applicant indicates that the relationship has grown stronger as a result of the difficulties they have gone through. The applicant looks after his son.

28. It is submitted that if the visa remains cancelled, there will be prohibitions on the ability of the applicant to apply for suitable visas to remain in Australia. Then, either the applicant would return to Nepal and be separated from his wife and child or the applicant’s wife would have to give up her study in Australia. This is submitted to be unreasonable.

29. In the hearing, the applicant’s wife indicated that on arrival in Australia in 2017 she studied an English course before studying a Bachelor of Nursing, which she completed, although she did not progress to obtain her nursing registration. She indicated that she then started studying a Bachelor of Nutrition but did not complete this because of stress created by the actions of her husband. The applicant indicates that the Bachelor of Community Services she is currently studying was originally due to be completed in December 2024 but she has not passed some of the units because of the difficulties encountered, but expects to complete this degree in December 2025.

30. She then indicates she would like to work in Australia on a graduate work visa as well as consider undertaking a Master of Nursing and obtaining her nursing registration. The applicant’s wife indicates that there is a desire to proceed on a pathway to permanent residence in Australia.

31. It is implicit from this that a compelling need for the applicant to remain in Australia is to remain together and support his wife while she completes her studies, progresses with a work undergraduate visa and then explores pathways for both of them for permanent residence.

    The extent of compliance with visa conditions

32. It is submitted that the applicant has complied with the conditions on the visas that he has been granted and this should weigh against cancellation visa.

    Hardship caused to the applicant and family members including consideration of financial, psychological, emotional or other hardship

33. It is submitted that there would be significant hardship if the visa remains cancelled to the applicant, his wife and their son. The applicant’s wife needs the applicant to be with her to support her and care for their son while she studies. The applicant indicates that his presence is crucial for emotional and financial support. The hardship will be immense if the applicant cannot remain in Australia. The applicant indicates he cannot live without his son.

34. The applicant’s wife emphasises in her written claims the support she now has from her husband and that he has stopping drinking. She refers to a happy marriage before his drinking. She refers to her studies and the significant difficulty she would face if she remained in Australia studying without her husband who looks after their son. She indicates that cancellation of her husband’s visa will have a detrimental impact on her study, career and future life of their son.

35. In the hearing, the applicant’s wife went through her study history in Australia as detailed above indicating a desire to work in Australia and progress on a pathway to permanent residence.

36. Clearly, this is a desire that would be significantly curtailed or removed by the cancellation of the applicant’s visa and thus relevantly a very significant hardship to her, as well as to the applicant.

    Circumstances in which the ground of cancellation arose – extenuating circumstances beyond the applicant’s control

37. It is conceded that the circumstances from which the ground of cancellation arose were not beyond the applicant’s control given that it was due to his abuse of alcohol. However, it is submitted that the weight of this is tempered by a range of factors. These factors include his now abstinence from alcohol and the addressing of the causes of what occurred, namely his alcohol abuse. He complied with his 12-month Community Correction Order. He has not reoffended and is genuinely remorseful for what occurred. He understands the abhorrent nature of family violence.

38. Written statements by the applicant’s wife confirmed the applicant’s claimed reform. In the hearing, the applicant’s wife confirmed the reform of her husband and that he has not drunk alcohol since the events of June 2023. The Tribunal put to both the applicant and his wife that for an individual dependent on alcohol giving up can be a difficult undertaking. However, both the applicant and his wife indicated that this has not been overly difficult. The applicant reiterated his determination to do the right thing for the sake of his family.

39. It is indicated that the statements of various supporting witnesses confirm the applicant’s reform and abstinence from alcohol. The various witness statements do make claims in this respect as well as attesting to the applicant’s good character when not drinking.

40. After the hearing, the applicant provided evidence of a hair follicle test establishing, given the length tested, that he has not had alcohol in his system for at least the last three months. This is at least in part corroborative of the applicant’s claim of abstinence from alcohol since the events of April 2023.

    The visa holder’s past and present behaviour towards the Department

41. It is indicated that the applicant has been truthful and cooperative with the Department, which weighs moderately against cancellation of the visa.

    Consequential cancellations

42. The submission on behalf of the applicant indicates that there are no consequential cancellations.

    Mandatory legal consequences of a cancellation decision

43. Reference on behalf the applicant is made to restrictions that would be placed on eligibility for visas for the applicant to remain in Australia if the visa is cancelled. It is submitted that this factor weighs against cancellation of the visa.

    Application of international agreements – children in Australia’s interests are affected – non-refoulment obligations

44. It is submitted that the applicant’s child needs both parents to support and care for him, which will not be the case if the applicant has to leave Australia, with his wife and child remaining here while his wife continues studying.

45. It is noted that the letter dated 15 August 2023 from the NSW Department of Communities and Justice indicates that the Department has determined that the child of the applicant is not at risk of significant harm in his care.

46. It is submitted that it is in the best interests of the child that the applicant remain in Australia to provide care and support and to avoid a scenario where the wife has to consider giving up study. It is submitted that this weighs against cancellation visa.

    Other relevant matters

47. It is noted that the applicant’s psychologist reports that the applicant indicates minor symptoms of anxiety, which the psychologist puts down to the immigration process the applicant is currently subject to. The psychologist concludes that the applicant now does not suffer from alcohol use disorder and is of the professional opinion that the applicant has put behind him his ineffective maladaptive coping mechanisms. The psychologist concludes that the applicant is unlikely to reoffend.

1. It is submitted that the applicant has reformed. It is noted that he has sought a hair follicle test to show this is the case. Additionally, the applicant’s commitment to his family and lack of reoffending shows that this is the case and is consistent with the statements of the applicant, his wife and supporting witnesses.

2. The applicant’s wife in oral evidence at the hearing indicated that there has been no threatening or violent behaviour towards her by the applicant since the events of June 2023. She indicates confidence in the applicant remaining abstinent from alcohol and not being a threat to her.

   Tribunal’s assessment of discretionary factors and balancing of those factors

3. Intimidation and violence perpetrated by the applicant towards his wife as set out in the Police Facts Sheet is significantly adverse to the applicant. The Tribunal accepts, based on evidence of the applicant and corroborated by his wife, and multiple third parties, that the applicant has been abstinent from alcohol since the events of June 2023. The Tribunal accepts the evidence of the applicant’s wife that she no longer feels threatened by the applicant. The Tribunal accepts, based on a test of a hair follicle of the applicant, that he does not have alcohol in his system evidencing not having drunk for at least the last three months. This corroborates claims of the applicant’s abstinence from alcohol, at least for that period.

4. The Tribunal accepts that there would be a very considerable hardship to the applicant’s wife if the visa remains cancelled of either separation from her husband for a period and therefore not having support for the child while she studies, or the applicant’s wife having to cut short her desired study in Australia and progression on a work pathway to permanent residence. This is a significant hardship to the applicant’s wife in the context where she has been the victim of the conduct of the applicant leading to the ground of cancellation being made out.

5. This hardship to the applicant’s wife is a very significant factor that weighs against exercising the discretion to cancel the visa. There is also a similar hardship to the applicant in terms of not progressing with his wife as a dependent on a pathway to permanent residence but as this is the product of the applicant’s own violent and criminal actions, it is only given limited weight in terms of not exercising the discretion to cancel the visa.

6. Weighing discretionary factors, particularly given the accepted reform of the applicant and his accepted abstinence from alcohol for more than a year and the very significant hardship, particularly that would be suffered by the victim of the events, the applicant’s wife, the Tribunal determines that these factors override the violent and criminal conduct by the applicant.

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

   DECISION

8. 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