Luchtemberg Neves (Migration)

Luchtemberg Neves (Migration) [2019] AATA 866 (7 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Marcio Luchtemberg Neves
CASE NUMBER:  1807022
HOME AFFAIRS REFERENCE(S):           BCC2018/726080
MEMBER:Mr S Norman
DATE:7 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
Statement made on 07 February 2019 at 2:05pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – circumstances giving rise to ground for cancellation – nature of offence – ongoing risk to Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.
The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that the applicant had been convicted of an offence against a law of the State. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. That stated:
(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa), a Subclass 051 (Bridging (Protection visa applicant)) visa or a Subclass 444 (Special Category) visa) - that 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))…
The applicant was granted a Subclass 572 Vocational Education and Training Sector visa on 14 July 2015 (the Student visa). That Student visa was set to expire on 30 May 2018. In their decision record, the delegate noted that a first Notice of Intention to Consider Cancellation had been issued on 21 December 2017, relying on s.116(1)(e)(ii), as at that time convictions had not been incurred by the applicant. The delegate had also noted they had taken into account the applicant’s responses to both NOICC.
By second Notice of Intention to Consider Cancellation (NOICC) of the Student visa dated 13 February 2018, the applicant was advised that it appeared there may be grounds to cancel his visa as information before the Department indicated the applicant had been convicted of the following offences in the Sutherland Local Court on 9 February 2018:
·one count of Contravene Prohibition/Restriction in AVO (Domestic) – convicted and sentenced to $800 fine
·one count of Assault occasioning actual bodily harm (Domestic) – convicted and placed on a s.9 good behaviour bond for two years
·one count of Stalk/Intimidate intend physical harm (Domestic) – convicted and placed on s.9 good behaviour bond for two years.
The applicant was advised that based on this information it appeared there may be grounds to cancel his visa under s.116(1)(g) of the Act, relying on the prescribed ground in r.2.43(1)(oa) of the Regulations.
On 19 February 2018, the applicant replied to the second NOICC. He lodged:
·his statements dated 19 February 2018 and 28 December 2017
·character reference and declaration from Stateline Asphalt P/L indicating the applicant was of “significant value” to the business
·a court outcome indicating a good behaviour bond
·a Certificate IV in Fitness – course completion document
·a Certificate III in Fitness – course completion document
·a Certificate indicating the applicant was chosen as student of the month in February 2015
·a Certificate of completion of civilian lifeguard training
·a Diploma in Physical Education – course completion document
·a Post graduate certificate in Biomechanics and advanced physiology of physical exercise
That being said, at hearing the applicant did not dispute there were grounds for cancelling the visa.
For the above reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act, exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Regarding the purpose of the applicant’s travel to and stay in Australia, based on the evidence before it the Tribunal accepts the applicant travelled to and stayed in Australia for the purposes of study. After also considering all the accepted evidence herein, I am not satisfied there is any compelling need for the applicant to travel to or remain in Australia.
Regarding the extent of compliance with visa conditions, there is no evidence before the Tribunal that the applicant breached any other condition attached to his Student visa.
Regarding the circumstances in which the ground of cancellation arose, in his response to the NOICC, the applicant said:
·the Australian justice system had sentenced him to a good behaviour bond and this indicated he had been given a second chance to prove himself
·he considers the conviction relating to the contravention of the AVO was unfair as he said the victim contacted him and he was not aware he was not permitted to communicate with the victim
·his actions that led to his conviction were in self-defence to calm down the victim; though he also said he is remorseful for his actions
·he now resides separately to the victim and similar behaviour will not occur again
At hearing, the Tribunal advised the applicant that subject to his comments, the following information would be the reason or part of the reason, for affirming the decision under review. The Tribunal also advised the applicant he could request an opportunity to provide further information about this after the hearing (though no request was made). That information included:
The NSW Police Fact Sheet:
… The victim left the bedroom door [at the applicant’s residence] via the balcony door in hope she could leave the unit by accessing the roommates bedroom which also adjoins the balcony … the accused then took the victim back into his bedroom. He put his hands around her neck again and forced her onto the bed. The accused then said ‘if you move at all from this bed I will smash in your face’. The victim was too frightened to leave the bed as she believed the accused would assault her further … The victim stayed in bed until 5.30am when the accused left for work. The victim then left the accused house and attended Kogarah Police Station and told the police what happened … At 2.30 pm the police located the accused [and he was arrested].
At hearing, the Tribunal then explained this information may be relevant as it may be the reason or part of the reason for affirming the decision under review, because whether an applicant may be an ongoing risk to the Australian community is relevant to the Tribunal’s consideration of the discretion to cancel the visa.
When then discussed, the Tribunal did not believe the applicant was disputing the facts of the case (as noted in the NSW Police Fact Sheet), just that they suggested events that were more serious than what had actually taken place. The applicant explained that he was attempting to break up from his (now) ex-girlfriend. However, he would sometimes meet up with her (given she would come to his home to stay with him). At the time of the above incident, the applicant said he had been out with his ex-girlfriend (the victim), and then had returned to his home. After then discussing their relationship, she had been crying and had attempted to depart his home (around 4.00am). He did not believe it was safe so he had made her remain in his bedroom while he slept on his couch. In their decision, the delegate recorded the applicant as claiming his actions were in self-defence. At hearing, the applicant also said the judge at his criminal hearing did not believe the evidence of marks on his ex-girlfriend’s arms and neck, were as serious as suggested by the prosecution. However, the applicant was none-the-less convicted.
At hearing, the Tribunal put to the applicant his version of events appeared to be different from that evidence which was accepted by the criminal court. Further, and after considering same, even if the Tribunal were to accept the applicant was attempting to ensure his ex-girlfriend was not harmed after leaving his home at 4.00am, preventing her from ‘fleeing’, grabbing her by the neck and threatening to ‘smash in her face’, were disproportionate to that which the applicant was attempting to achieve.
The Tribunal also noted at hearing the fact the victim had departed his home shortly after his departure for work, and fairly immediately then reported the incident at the Kogarah Police Station, suggested she was frightened and intimidated by that incident. The applicant believed his ex-girlfriend could have left the apartment while he was asleep on his couch if she had wished to. However, as noted above, the Tribunal understood the victim was too frightened to leave as she believed the accused would assault her further.
At hearing, the applicant also said (words to the effect) he was not guilty of the crimes for which he was convicted. After confirming he had pled guilty to same, and he had the assistance of a defence lawyer, when asked, the applicant said this was because his lawyer had advised him to plead guilty. However, later in the Tribunal hearing the applicant also said (words to the effect) he understood he was convicted under law but he believes the incident was less serious than the evidence indicated. The Tribunal was not certain whether this indicated a lack of remorse by the applicant, or a misunderstanding of what may be acceptable behaviour in Australia (where domestic violence is also a serious issue[1]). However, given his concession that he was convicted under law, the Tribunal has decided to accept the latter (that his actions arose from a misunderstanding of what may be acceptable behaviour in Australia).
[1] See US Department of State, Country Reports on Human Rights Practices for 2017, Australia, ‘Section 6. Discrimination, Societal Abuses, and Trafficking in Persons’, Women’.
The Tribunal eventually said it may find (and now does find) the applicant’s version of events did not accurately reflect the circumstances of the incident/s giving rise to his conviction and the subsequent cancellation of his Student visa. This was because the evidence, upon which the convictions were based, and which evidence is accepted by the Tribunal, indicated more serious behaviour than the applicant was admitting to. Further, and even if the Tribunal was to accept the applicant was intending to protect the victim (from leaving his residence while crying at 4.00am), his actions were disproportionate to that which he was trying to achieve. After having then considered all the accepted facts of this case, the Tribunal is satisfied this supports a decision to exercise the discretion to cancel the visa.
Next, and regarding the degree of hardship the applicant or his family would suffer if his visa is cancelled, in his response to the NOICC/s, he said:
·he is a genuine student and has complied with all his Student visa obligations and has completed his enrolled courses
·he had now enrolled in an Advanced Diploma in Leadership and Management course and wished to be able to continue his studies
·his current employer had provided a reference indicating he was an asset to their business
·he wished to establish a gymnasium in Brazil upon his return
·life in Brazil was difficult and this is the reason he came to Australia to study
·the cancellation could impact his ability to travel to other countries with his passport
·his actions that led to his conviction were in self-defence to calm down the victim; though he also said he is remorseful for his actions
·he now resides separately to the victim and similar behaviour will not occur again
At hearing, the now 29 year old applicant (who had departed Brazil when he was 24 years of age), said he travelled to Australia to study and had successfully completed courses at the Certificate level (though he had previously completed a degree and Masters in Physiology course in Brazil). He also said he was one or two months from completing his Advanced Diploma course in Australia when his visa was cancelled (on 8 March 2018). He said he was then forced to remain in Australia; though when discussed, he meant that he was granted a Bridging visa which prevented him from returning to Australia if he departed. He said that if he was allowed to complete his course he would now have returned to Brazil.
The applicant also explained that his mother was residing in Brazil (near her extended family). His biological father had left the family when the applicant was 11 years old, and he has had little to do with his biological father since that time. His mother had remarried a British citizen who lived in Brazil with the mother, the applicant and his brother for around eight years (though the brother now lives in, and is married to, a Panama citizen). The applicant’s step-father had subsequently passed away and the applicant’s mother receives a pension from Great Britain.
When then asked what he would do if he returned to Brazil, the applicant said he would pursue his ‘normal routine’. He said he would continue to be engaged as a personal trainer in Brazil. He also said that nothing would prevent him from being able to manage a gym in Brazil (though he wished to complete his Advanced Diploma prior to returning to Brazil). He also said (words to the effect) that there would be few persons in Brazil with the same qualifications/experience as he had in physical conditioning and fitness. In the circumstances, the Tribunal is satisfied the applicant could seek work commensurate with his skills in Brazil.
The Tribunal does accept that if the applicant’s visa is cancelled he may not be able to complete his Advanced Diploma in Australia (though at hearing he conceded he had a Master’s degree from a university in Brazil). The Tribunal accepts that if the applicant’s visa is cancelled, this may have some impact on his capacity to return to Australia or to engage in some international travel. The Tribunal also accepts that if the applicant’s visa is cancelled, he or his family may suffer some financial or other hardship.
Next, the Tribunal has no evidence the applicant has been uncooperative with the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.
Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal, I am not satisfied the applicant would be subject to indefinite detention. I also accept the applicant would be able to temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.
The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and he would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.
As did the delegate, the Tribunal accepts the applicant may be subject to a range of hardships should his Student visa be cancelled. However, given the Tribunal is not satisfied the applicant’s version of the events giving rise to the cancellation of his visa are reliable, and given he was convicted of three offences in Australia and that his misunderstanding of what may be acceptable behaviour in Australia could give rise to an ongoing risk to the Australian community, I am satisfied this outweighs any hardship to which the applicant or his family may be subject if his visa is cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.
Mr S Norman
Member

[2019] AATA 866

7 February 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Remedies