Maharjan (Migration)

[2020] AATA 594

Maharjan (Migration) [2020] AATA 594 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sangam Maharjan

CASE NUMBER:  1929941

HOME AFFAIRS REFERENCE(S):          BCC2019/3388075

MEMBER:Catherine Carney-Orsborn

DATE:4 March 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

Statement made on 04 March 2020 at 10:55am

CATCHWORDS

MIGRATION – cancellation – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – criminal conviction – serious level of abuse – relationship breakdown – ADVO – employment options – family has resources – deflect and excuse behaviour – blames wife – police report indicate pattern – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Nepal born in November 1994.  He was granted a student visa on 6 March 2014, he was granted a further student visa in March 2017 and a subclass 485 (Temporary Graduate) visa in May 2018.

3. On 5 September 2019 the delegate issued the applicant with the Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act because the delegate formed the view that there were grounds for cancelling the visa held by the applicant under s. 116(1)(g). The applicant provided his response on 19 September 2019 and his visa was subsequently cancelled. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa under s.116(1)(g) on the basis that there is a conviction and the grounds for cancelling the visa outweigh the reasons not to cancel the visa. 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 February 2020 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

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.

10. The evidence as set out in the delegate’s decision is that the applicant was convicted of a criminal offence on 22 August 2019 at Burwood Local Court. 

    ·The applicant was convicted of One count of Assault occasioning actual bodily harm

    ·Two counts of Common Assault (Domestic Violence)

    ·Three counts of Stalk intimidate intend fear physical etc.harm (Domestic  violence)

    ·One count of Destroy or damage property (Domestic Violence)

11. The applicant was sentenced to nine months imprisonment which was served by way of intensive correction in the community.  The applicant was ordered to perform 200 hours of community service as part of this community corrections order.

12. It is not in dispute that the applicant has these convictions.

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.

14. The applicant provided submissions from his representative.  The Tribunal has before it the Department’s file, the Tribunal file and documents provided by the applicant to the Department and Tribunal.

15. The applicant provided oral evidence, and a summary of that evidence is as follows.

16. The applicant provided some background.  He was born in Nepal and he has family in Nepal including his parents.  His student visa was funded by his parents.  He has previously worked as a cleaner.  He is presently not working as his visa does not allow him to work.

17. He is living with friends from Nepal who are assisting with his living expenses.

18. He claims that the incident which resulted in him being charged and convicted was because he was stressed and misguided.  He confirmed he was represented at the hearing in relation to the criminal charges.

19. He asks the Tribunal the exercise its discretion to allow him to continue to stay in Australia as he wants to work and live in Australia and to do his Master’s degree.

20. He has completed an anger management course and completed his professional year for IT.

21. He wants to stay in Australia and send money to his father.  He claims that if he returns to Nepal he will be unable to get a good job as he has a conviction in Australia.  The Tribunal pointed out that sometimes it is difficult to get a job in Australia with a conviction.  He said he was now used to the culture in Australia and he wants to stay.

22. He states he has had no contact with his wife.  He states they are separated but not divorced.  There is an AVO in place for two years from 22 August 2019.  He claims that he included her on his student visa as his dependent and she was to help him cover all his debts.  He claims that she had an ex-boyfriend in Australia and she was in contact with that ex-boyfriend.  He claims he did everything to help his wife and he was paying the rent and was having a lot of stress.  He claims there was only the one incident.

23. He claims her ex-boyfriend called her and she was going to see her ex-boyfriend and this caused him the stress.

24. He claims he is very remorseful and has previously had no criminal record in Nepal.

25. He pointed out that the sentencing report stated that he was at low risk of re-offending. 

26. The Tribunal put to him pursuant to s359AA that it appeared from the police record and statement that there was more than one incident of violence.

27. The Tribunal explained that this indicated that there was a serious level of abuse and not just one incident.  The Tribunal explained that this would be adverse and he could seek an adjournment.  The applicant indicated he would like an adjournment to discuss the issue with his representative before he responded.

28. The Tribunal allowed the adjournment.

29. The applicant responded that he saw the video of the police interview and he claims that the victim (his wife) was just repeating the one incident and that the interpreter was not interpreting properly.  He claims there was just the one incident.

30. He claims that on the first occasion he was before the court he represented himself.

31. He claims there was only the one incident; he is seeing a psychologist to improve himself.  He claims that the violence for which he was convicted was his first and last mistake he has made.

32. The representative requested time to provide further evidence and submissions to the Tribunal.

33. The Tribunal allowed further time.

34. A Statutory Declaration dated 21 February 2020 was provided from the applicant.

35. In the Statutory Declaration dated 21 February 2020 the applicant outlined the relationship with his wife, his studies, the stress he was under and the breakdown of his relationship with his wife.  He claims that his wife insulted him and was at moral fault.  He claims that some of the charges were affected by the misinterpretation of the Nepali translator and their miscommunication to the police officials.  He claims he did not object at the time due to fear.  He reiterated his evidence that he is doing charity work and he is remorseful.  He states that he has undertaken an anger management course and is at low risk of reoffending.

36. In the applicant’s response to the NOICC dated 18 September 2019 he stated he brought his “girl” to Sydney in May 2019.  He claims that all was going well until he discovered she was having an affair with her ex-boyfriend.  He stated he was working full-time and his wife refused to attend job interviews and was totally dependent on him.  He claimed he was bullied and insulted by his wife and “out of nowhere she provoked him to insult her and he was taken to Campsie police station and charged.”

37. He provided documents from the court, an anger management course, an assessment from Burwood community correction and other documents indicating he has been a volunteer and made donations to charities.

38. Submissions from the applicant’s representative to the Tribunal asked the Tribunal to consider the object and purpose of the Act in general and s 116. The submissions pointed out that the applicant lacked orientation and guidance which resulted in him being convicted for domestic violence offences for which he is extremely remorseful. He claims he is abiding by all the conditions imposed on him by the Court and paid a Victims support levy. He is in the lower risk of reoffending and is learning ways to integrate in society. The applicant has no criminal conviction in Nepal. The applicant is not a potential threat to Australia and his visa should not be cancelled. He submits that to cancel his visa is excessive and hard.

39. The Tribunal considers the applicant’s arguments unpersuasive. The applicant claims in his response to the NOICC and at hearing that he was the subject of bullying and insulting behaviour perpetrated on him by his wife, he further claims that she would not work and was seeing an ex-boyfriend.  This indicates that he has not taken responsibility for his actions.  There was no evidence that his wife bullied and insulted him or was having an affair with an ex-boyfriend other than the applicant’s own assertions seeking to excuse his behaviour and place the blame on the victim.  In the representative’s submissions he claims that the applicant is remorseful.  The applicant at hearing indicated he had only made one mistake and it was related to only one incident.  The evidence in the police statement clearly states that there was a history of abuse and the charges related to several incidents over a period of two months.  The Tribunal accepts that the applicant has complied with the sentencing requirements and has attended an anger management course. The Sentencing assessment report states that the applicant “reported to have completed a one hour online anger management program”.  The report states that “the applicant challenged the seriousness of his behaviour and attributed blame on the victim”.  The applicant repeatedly points to the report stating he was assessed as at low risk of reoffending.  The Tribunal considers that he is at low risk of reoffending as he has separated from his wife and has had no contact since the charges.  The applicant has been convicted of serious charges in relation to his partner.

40. The applicant is also the subject of an Apprehended Domestic Violence Order (ADVO) which was made for two years.   He claims he was unrepresented when he first appeared before the court.  At hearing he agreed he had legal representation at the hearing. The Tribunal acknowledges that the applicant did not have a prior criminal record and has participated in counselling. The Tribunal also acknowledges that when sentencing the applicant, it was considered that he was at low risk of reoffending.

41. The Tribunal has considered the applicant’s claims and acknowledges his evidence to the Tribunal that the violence was a one off incident and that he was provoked by his wife’s bullying and insulting behaviour and her seeing an ex-boyfriend. The Tribunal finds that this is not supported by independent and probative evidence. In the Tribunal’s view, such evidence – particularly the issuance of the final ADVO for a period of two years and the conviction for assault – indicate that despite the applicant’s denials, there was a pattern of violence perpetrated against the wife and that the applicant’s wife was assessed as being in need of protection. Whether the wife provoked the applicant, as he claims, does not detract from this fact.

42. The Tribunal acknowledges the applicant’s representatives written submissions that the applicant was remorseful however is not satisfied that this remorse relates to his violence perpetrated against his wife and is rather remorse for himself that he “made one mistake” and put his work visa at risk in Australia.

43. The applicant’s representative submits that invoking the operation of s. 116(1) is excessive, harsh and against the true purpose of the Act and abuse of the discretionary power. The Tribunal does not accept this view of the section. A conviction for several offences involving violence – even which the applicant considers was a one off and provoked by the victim – and the issuance of an ADVO – are serious. That the applicant was assessed low risk of reoffending does not detract from the fact that the conviction has been made in response to the applicant’s conduct and the applicant penalised by a Court.

    Consideration of discretion

44. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

45. The applicant arrived in Australia on a student visa.  He was subsequently granted a Temporary Graduate visa subclass 485 which allows him to live, work and study temporarily in Australia. His evidence is that he wants to complete a Masters and live and work in Australia.  There is nothing to indicate that this is not his intention.    

    The extent of compliance with visa conditions

46. There is no evidence before the Tribunal to indicate that the applicant failed to comply with visa conditions.

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

47. The applicant claims that he will suffer if he is not able to work in Australia.  He claims that he wants to send money to his family in Nepal.  He states that he would not be able to find employment in Nepal due to his criminal conviction in Australia.  There is nothing before the Tribunal other than the applicant’s own assertions that it will be difficult to find work in Nepal due to a conviction for domestic violence offences in Australia.  The Tribunal further notes that it can be difficult to find employment in Australia due to a conviction for violent offences in an Australian Court.  The subclass 485 visa is a temporary visa only.  The applicant would, unless he secured permanent residency, at some stage have to return to Nepal. The Tribunal is of the view that his family have some resources in Nepal as they have funded his studies in Australia and could use those resources to support him.

48. The Tribunal accepts that it may cause him and his family some financial hardship if he is not allowed to work temporarily in Australia and return money to Nepal.

49. The applicant claims that his circumstances will impact upon his emotional and mental health.  Despite the applicant’s claims that he suffers from a mental health condition and could be a risk of suicide the only reports before the Tribunal is one from a Clinical Social Worker dated 28 October 2014 which states he suffers from depression, stress and anxiety and requesting he be transferred interstate by his education provider, a short report provided to the Magistrate dated 21 August 2019 which states it is not a comprehensive psychiatric report and does not constitute a recommended treatment plan.  At hearing the applicant stated he was seeing a psychologist however no report was provided.

50. On the evidence before the Tribunal the Tribunal is not satisfied he suffers from a serious mental health condition.  The Tribunal accepts he may be anxious and stressed over the serious criminal charges he has against him and that his visa has been cancelled.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

51. The applicant claims that his relationship has broken down, that he is separated from his wife and will seek a divorce. The ground for cancellation arises not because of the relationship breakdown but because the applicant had been convicted of several violent offences against his wife and an ADVO to protect his wife remains active.

52. Past and present conduct of the visa holder towards the department

53. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

54. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. He may be subjected to an exclusion period in relation to some, but not all, future applications.

    Whether there would be consequential cancellations under s.140

55. The information before the Tribunal indicates that the applicant’s wife holds a secondary visa associate with the applicant’s Temporary Graduate (subclass 485) visa.  A cancellation of the applicant’s visa will result in an automatic consequential cancellation of the secondary Temporary Graduate (subclass 485) visa held by the applicant’s wife.

56. The evidence before the Tribunal is that the relationship between the applicant and his wife who is the secondary visa holder has broken down.  As she would no longer be a dependent or family member of the applicant the purpose of her dependant visa does no longer exist.

57. The secondary dependent (the applicant’s wife) would not incur an exclusion period and she will be able to pursue other visas if she wishes.

58. whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

59. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant suggested that he would find it difficult to get a job but for the reasons stated elsewhere, the Tribunal does not accept that he would not be able to secure any employment; the Tribunal found that he would have some options as his family have resources. In any case, the Tribunal notes that if the applicant does believe Australia has protection obligations, he is entitled to seek a protection visa (see COT15 v MIBP (No.1) [2015] FCAFC 190 and MIBP v Le [2016] FCFAC 120).

1. There are no children affected by the cancellation of the applicant’s visa.

   Any other relevant matters.

2. The Tribunal has considered all the evidence before it and the submissions provided by the applicant.  The Tribunal accepts that if the visa is cancelled the applicant may suffer some financial hardship and stress associated with that hardship. 

3. However the Tribunal has considered the serious nature of the conviction.  The police report indicated a pattern of spousal abuse over some period of time.  The applicant has been found guilty of six charges of a violent and dangerous nature against his wife.  The Tribunal has considered the applicant’s evidence that he was assessed as low risk of re-offending.  He may be at a low risk of re-offending as he is separated from his wife and due to a continuing ADVO is not able to contact her.  However he has sought in his evidence to deflect and excuse his behaviour by placing blame on his wife.  He further claimed to the Tribunal that there was only the one incident.  This was contradicted by the police reports and statements.   Despite his submissions that he has attended anger management courses and sought counselling the Tribunal is satisfied that he has only completed those courses to facilitate the preferred visa outcome that his visa not be cancelled.

4. In the Tribunal’s view, the nature and the circumstances of the offences outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.

   Catherine Carney-Orsborn
   Member