Mohammed (Migration)

[2020] AATA 1507

Mohammed (Migration) [2020] AATA 1507 (14 February 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdul Sami Mohammed

CASE NUMBER:  1930089

DIBP REFERENCE(S):  BCC2019/3997529

MEMBER:Jason Pennell

DATE OF DECISION:  14 February 2020

DATE CORRIGENDUM

SIGNED:27 May 2020

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1. Incorrect signature and covering date of 14 February 2006 now to be correct date 14 February 2020.

   Statement made on 27 May 2020 at 9.12am

   DECISION RECORD

   DIVISION:Migration & Refugee Division

   APPLICANT:  Mr Abdul Sami Mohammed

   CASE NUMBER:  1930089

   HOME AFFAIRS REFERENCE(S):          BCC2019/3997529

   MEMBER:Jason Pennell

   DATE:14 February 2006

   PLACE OF DECISION:  Melbourne

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

   Statement made on 14 February 2006 at 1.20pm

   CATCHWORDS

   MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the safety of an individual – sexual assault charges – ability to complete studies in India – study rights retained under Bridging Visa – emotional hardship to the applicant’s family – decision under review affirmed        

   LEGISLATION

   Migration Act 1958, ss 116, 140

   CASES

   Gong v MIBP [2016] FCCA 561
   Tien v MIMA (1998) 89 FCR 80         

   STATEMENT OF DECISION AND REASONS

   application for review

   2.This is an application for review of a decision dated 17 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

   3.The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the applicant is a risk to the health, safety or good order of the Australian community or segment of the Australia community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   4.The applicant appeared before the Tribunal on 14 February 2020 at 10.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

   6.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

   7.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)(e) of the Act on the basis. 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?

   s.116(1)(e) - risk to Australian community or individual

   8.A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

   9.The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   10.The applicant was born on 2 January 2001 in Hyderabad, India. His religion is Muslim. His evidence was that his Mother, father brother and sister continue to live in Hyderabad. His father works as a RTA Agent (described as a driving license officer) and his brother and sister are students.

   11.The applicant stated that he completed year 12 in India making application to study in Australia. The applicant’s evidence was that he wanted to study in Australia as it would give more opportunities in life and enable to obtain a better job.   

   12.On 1 February 2019 the applicant lodged an application for a Student Visa having enrolled in a Bachelor of Business Information and Communications Technology at the University of the Sunshine Coast, Melbourne Campus. The applicant was granted his visa on 14 February 2019 and he entered Australia on 3 March 2019.

   13.It’s alleged that at approximately 2.45pm the applicant knocked on the door of the victims house in Melbourne. It’s alleged that the applicant told the victim that he was working for Aussie Greenmarks as part of the light bulb exchange initiative and asked to come inside to see if the light bulbs needed replacement.

   14.The victim allowed the applicant to enter her home. While the applicant was in the victim’s home she went into her bedroom to prepare to leave to collect her son from school.  When the victim opened the bedroom door the applicant was waiting outside the door in the hallway. It is alleged that the applicant stated that ‘you look my sister who died two years ago’ and then asked the victim if he could have a hug. She agreed.

   15.While giving the victim a hug it’s alleged that the applicant put both arms around the victims back and moved his right arm and touched the victim’s breast. The victim told the applicant that such behaviour was ‘not on’ to which the applicant replied that he was sorry. He continued to hug the victim when he continued to touch the victim left breast upon which the victim pushed him away.

   16.Its alleged that the victim then walked away for the applicant but he followed her asking if he could hug and if he could kiss her to which the victim said that he could not.  The applicant continued to apologies and said that he just wanted a hug to which the victim stated ‘you are creeping me out. I need to pick up my son from school.’ The victim feared that the applicant would become angry and violent and told him to leave the house. The applicant then left the premises.

   17.The victim reported the incident to the police and provided a description of his appearance in order to assist them identity him. The applicant was located by the police and placed under arrest.

   18.On 8 August 2019 the applicant was charged by the Flemington Police Station with one count of Sexual Assault. The applicant confirmed that he attended a hearing of the charges on 7 January 2020 and advised that a further hearing had been listed for early March 2020. The applicant has pleaded not guilty to the charges. He confirmed that he was the person who attended the victim’s premises but denied any wrong doing as he claims the hug was consensual. 

   19.The applicant confirmed that he was currently on bail on the basis of his own undertaking.

   20.A Notice of Intention to Consider Cancellation (NOICC) under s.116 (1)(e) of the Act was sent to the applicant dated 6 September 2019. The NOICC was sent by registered post to the address provided by the applicant to the department. The notice informed the applicant the basis upon which his visa was being considered for cancellation and invited him to comment in writing on the information provide in the notice and to give reasons why his visa should not be cancelled within 5 days for the date upon which he received the NOICC.

   21.The applicant did not respond to the NOICC. The delegate in his decision dated 17 October 2019 confirmed that the NOICC was sent to the applicant by registered post. In addition delegates states that he contacted the applicant by telephone on 1 October 2019 and confirmed to the applicant that he had sent the NOICC to the correct address and explained that it was waiting for him to be collected at his local post office. The delegate offered to send the NOICC by email in response to which the applicant provided his email address. As a result the delegate sent the applicant the verification of contact information email requesting that he respond in order for the department to communicate electronically with him regarding the cancellation process. The applicant did not respond to the delegates email. On 15 October 2019 the NOICC was returned to the department having not been collected from the applicant’s local post office.

   22.The applicant claimed that he did not respond to the delegate’s correspondence and telephone call as he did not believe they were from the department. As a result, he claims that he was advised by members of his community not to respond to the delegate’s communications.

   23.The applicant confirmed that he had been charged with the offence but claimed he was innocent of any sexual assault. 

   24.For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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

   25.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.

   26.The purpose of the applicant travelling and staying in to Australia was to study. On 1 February 2019 the applicant lodged an application for a Student Visa having enrolled in a Bachelor of Business Information and Communications Technology at the University of the Sunshine Coast, Melbourne Campus. The applicant was granted his visa on 14 February 2019 and he entered Australia on 3 March 2019.

   27.The applicant completed two semesters before his visa was cancelled. He provided his academic record during the course of the hearing which showed that he had passed the first semester but had failed three of four subjects in semester two. The applicant claimed that he had become distracted as a result of the charges and as result had not performed well in studies in the second semester.

   28.The Tribunal is satisfied that the applicant purpose of traveling to Australia was to study. As such the tribunal gives some weight in the applicant’s favour in relation to this consideration.

   The extent of compliance with visa conditions

   29.There is no evidence that the applicant has not complied with the conditions of his visa. Therefore the Tribunal places some weight on this consideration in the applicants favour.

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

   30.The applicant’s evidence was that if the visa is cancelled he will lose the opportunity of obtaining a degree in the Australia and will not be able to get a better job and life for himself. The Tribunal accepts that he would be able to obtain a degree in India but said that would mean that he would be like everyone else. Having his visa cancelled would mean that he would lose the opportunity of getting a better job.   

   31.The Tribunal accepts that in the event the visa is cancelled the applicant will suffer hardship as a result of not being able to complete a degree in Australia. However, the applicant accepts that he would be able to obtain a degree in India. While the Tribunal accepts that he may initially be able to obtain a better job by having an Australia degree, it does not accept that the applicant would not be prevented from achieving the same level of success or employment level with a degree from an Indian University or some other Indian educational institution.  

   32.Therefore, while the Tribunal accepts that the applicant will suffer hardship as a result of his visa being cancelled its does not accept that cancellation of his visa will necessarily prevent him from  achieving the same level of employment or standard of living he could achieve with an Australian degree.

   33.As such, the Tribunal places little weight in the applicants favour in relation to this consideration.  

   Circumstances in which ground of cancellation arose.

   34.The circumstances arose when the applicant as part of his employment he was alleged to have sexually assaulted the victim after entering her home for the purposes of assessing her lighting for environmentally friendly alternatives. The applicant has been charged with the offence and has pleaded not guilty. The applicant has been granted bail on his own undertaking and is due to have the matter determined in early March 2020.

   35.The offence to which the applicant has been charged is opportunistic in nature. it involves the exploitation of his position of employment to gain access to a person home  for the purposes of gaining access to a vulnerable person in their own home, an environment  in which they have every right to safe and secure. While the applicant denies the charges he does admit to hugging the victim. In the circumstances where the applicant has gained access to the victim house in the course of his employment, the fact that he has hugged the victim demonstrates his ability and willingness to exploit a vulnerable person for his own purposes. The alleged behaviour is predatory in nature and as such he presents a risk to the health safety and good order of the Australian community or segment of the Australian community. In the circumstances the Tribunal is not satisfied that the applicant will not engage in such behaviour in the future.

   36.As such the Tribunal gives this consideration no weight in the applicants favour in relation to this consideration and in fact is a matter upon which the Tribunal places considerable weight in its consideration in favour of cancelling the applicant’s visa.

   Past and present behaviour of the applicant

   37.The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

   Persons in Australia whose visa would be cancelled under s.140.

   38.The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

   39.Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

   Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

   40.The circumstances of this case are such that they would not engage Australia’s international obligations.

   41.Accordingly, the Tribunal has considered whether the cancellation would not be in the best interests of the applicant’s children.

   Mandatory legal Consequences.

   42.If the visa is cancelled the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.

   43.In addition the applicant will be subject to s.48 of the Act which means that he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion 4013 as a result of cancellation. However, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.

   44.The Tribunal gives some weight to this consideration in the applicants favour.

   Other relevant factors

   45.Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

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

   decision

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

   Jason Pennell
   Senior Member