Molina Camacho (Migration)

[2023] AATA 1835

Molina Camacho (Migration) [2023] AATA 1835 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fabian Andres Molina Camacho

CASE NUMBER:  2208881

HOME AFFAIRS REFERENCE(S):          BCC2022/1781975

MEMBER:David McCulloch

DATE:7 March 2023

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 07 March 2023 at 4:59pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of criminal offences – physically violent behaviour – mental health issues and treatment – solid academic progress – business plans in Colombia – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 116, 140, 359
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 16 June 2022 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 Colombia born in 1997. The visa that was cancelled was granted on 6 December 2018, expiring on 17 June 2022.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 7 June 2022. The applicant provided a response to the NOICC on 14 June 2022.

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. The applicant appeared before the Tribunal on 17 February 2023 at 9.30am to give evidence and present arguments. The Tribunal took evidence from a witness, Mr Edwin Rojas.

6. 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

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)(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?

8. 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)).

9. The delegate’s decision record and documents on the Department file indicate that, according to a report provided by the Victoria Police, the applicant was convicted of the following criminal offences on 22 April 2022 at the Melbourne Magistrates Court: recklessly cause injury, assault with weapon, make threat to kill – reckless as to fear, criminal damage (intent damage/destroy). He was sentenced to a Community Correction Order for 24 months with a conviction.

10. In the hearing the applicant acknowledged the convictions and sentence.

11. 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

12. 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.

13. The preliminary brief provided by Victoria Police outlines the allegations against the applicant relating to the charges.

14. The victim and the applicant were in an intimate relationship since February 2021. On 20 June 2021 at around 1:15am, the applicant and the victim were having an argument on an apartment balcony during a night out with a few friends. The argument continued into one of the friend’s bedrooms where the applicant hit the victim with a beer bottle causing it to smash. Three of their friends stepped in and tried to calm the applicant down.

15. The applicant then grabbed the victim by his head and bit him once on his eyelid and another time on his cheek under his eye, breaking his skin and causing bleeding, bruising and swelling. The applicant broke the victim’s necklace.

16. The fight was broken up by the friends and the applicant called the police. The victim required surgery for his eye. The applicant presented himself to police the following morning on 21 June 2021.

17. The applicant made the following statement to police during an interview. He did not remember hitting the victim with a beer bottle. He did not remember biting the victim on the eye and cheek but remembered the victim hitting him. He did not remember the victim’s injuries and how they got there, stating he was very drunk. In relation to making threats to kill, the applicant said it was a lie.

18. The response to the NOICC by the applicant indicates the following. The applicant arrived in Australia in 2017 to study English and later vocational courses. During 2020 the applicant met the victim and they became good friends. In 2021 they established a sentimental relationship followed by de facto relationship. The victim lived with the applicant. The relationship did not work and ended. There were several attempts to repair the relationship but it was not possible. One of those attempts was on the day of the event leading to the charges. A significant amount of alcohol was drunk. Both lost control and had a fight. The applicant asks for forgiveness. He apologises to the victim.

19. The applicant notes that he complied with the sentence and has attended treatment and rehabilitation every Monday and performed necessary alcohol tests. The applicant has been seeking psychological assistance since 2019 due to low self-esteem and depression. Treatment has helped him modify his behaviours. The applicant has learned from the experience. At the time the applicant was in an extensional crisis fuelled by alcohol. Therapy has positively impacted on the applicant’s mental health and well-being.

20. The applicant has taken a St John’s ambulance course to enable him to volunteer. The applicant has not consumed alcohol since the event. The applicant does not consider that he is an alcoholic because on the day of the offences alcohol became his worst enemy. The applicant’s family continue to support him. The applicant refers to references provided by friends. The applicant also provided work references. The applicant every week attends church. The applicant’s judicial record has never been affected before. The applicant attends his classes. He has completed English courses and human resources courses.

21. In conclusion the applicant indicates that he made a huge mistake and he regrets that it happened. He is a good person and sometimes good people make mistakes. There is no excuse for his behaviour even if there was provocation. The applicant is not a dangerous or criminal person.

22. The applicant provided an additional statement to the Tribunal dated 13 October 2022. The applicant refers to his motivation to study in Australia and his study history here. The applicant feels safe in Australia and there is no discrimination because of his sexual orientation. The applicant repents in relation to the issue causing the cancellation. He is not a dangerous person in respect to everyone. The applicant refers to his youth. The applicant refers to his undertaking psychological therapy every two weeks. The applicant also attends Alcoholics Anonymous and anger management appointments. The applicant attends church. The applicant wishes to return to Colombia and start his own business.

23. The applicant concludes by indicating that he is a good person and his interest is to study and to learn and be a better professional. The applicant provides evidence of courses undertaken and passed and future intended study.

24. The following are provided to the Department and Tribunal:

    ·Victoria Police Court Outcomes Report showing the applicant on 22 April 2022 being convicted of recklessly cause injury, assault with weapon, make threat to kill – reckless as to fear, and criminal damage (intent damage/destroy). He was sentenced to a Community Correction Order for 24 months. He was also charged on 20 April 2022 with intentionally cause injury and unlawful assault, and on 10 June 2021 with recklessly cause injury, intentionally destroy property, and unlawful assault. The charges on 20 April 2022 and 10 June 2021 were withdrawn.

    ·Community Correction Order made on 22 April 2022.

    ·Letter to the applicant from Melbourne Community Legal relating to the closure of the file relating to his criminal matter. In refers to the applicant pleading guilty to the charges.

    ·Undated email from Melbourne Community Corrections, Department of Justice and Community Safety indicating that the applicant commenced his Order on 22 April 2022. He has attended four appointments on a weekly basis with no unacceptable absences. The applicant is waiting to undertake an alcohol treatment program and men’s behaviour change program. The applicant has returned a result of low risk of general reoffending.

    ·Undated email from a case officer at the Department of Justice and Community Safety referring to the applicant still having to attend a men’s behaviour change program and a three-hour drug and alcohol educational program before his order of the court lapses.

    ·Statement of Attainment for a first aid-related course dated 11 April 2022.

    ·Letter titled ‘Medical Certificate’ dated 9 March 2022 from Dr Christopher Maclay. The letter states that the applicant has issues with binge drinking and mental health. The applicant is remorseful and has taken proactive steps to address his issues. The applicant is otherwise a good person with his own issues dealing with sexuality and trauma.

    ·Further certificate from Dr Maclay dated 6 February 2023 referring to more than 40 consultations since October 2017. It refers to the applicant’s anxiety, depression, low self-esteem stemming from past traumatic events in relationships and coming to terms with his sexuality. He continues to work on these topics through his psychologist. The doctor attests to the significant effort and success in the applicant reforming himself. It is considered the applicant is by nature honest and law-abiding and motivated to do good.

    ·Psychologist report from Paula Botero of Momentum Psychology and Wellbeing Services dated 17 September 2021. The applicant attended eight sessions from March 2020 through to September 2021 during which he discussed issues with a relationship breakup. His Depression, Anxiety and Stress Scale (DASS-21) was assessed on 6 July 2021 to be severe levels of stress, extremely severe levels of anxiety and extremely severe levels of depression. His DASS-21 scores on 2 September 2021 were mild levels of stress, moderate levels of anxiety and moderate levels of depression.

    ·Psychologist report from Nathaly Vargas of Momentum Psychology and Wellbeing Services dated 3 February 2023. It indicates initial referral on 5 March 2020 and refers to initial treatment. Treatment was continued with the writer for two more sessions in 2022 and he had his first session in 2023 on 3 February. He has agreed to continue attending.

    ·Report from Momentum Psychology and Wellbeing Services, unsigned, undated. The applicant attended a further four sessions until December 2021. It outlines the applicant’s history and summary of treatment, effect of mental health symptoms, contribution of the mental health symptoms to offending and adverse impact. The applicant’s history of mental health issues played a role in his criminal offending and his psychological treatment has helped him.

    ·Statutory Declaration from Edwin Ricardo Prieto Rojas dated 10 June 2022, a friend of the applicant’s. It provides a good character reference for the applicant as a passionate, optimistic and friendly person.

    ·Statutory Declaration from Isvananda Roman Sulbaran, dated 8 June 2022, a friend of the applicant’s. It provides a good character reference for the applicant as a kind, responsible and respectful person.

    ·Statutory Declaration from Nishim Ranjit, dated 9 June 2022, a colleague of the applicant’s. It provides a good character reference for the applicant as an honest and kind person.

    ·Statutory Declaration from Jesus David Gallego Vidales dated 6 February 2023.  The writer indicates he has known the applicant for five years in Australia and they studied English together. It attests to the applicant being a trustworthy person who wants welfare and happiness for everyone.

    ·Statutory Declaration from Alonso Uchima dated 7 February 2023. The writer indicates he met the applicant in Brisbane a few years ago. He attests to the good attributes of the applicant and his maturity. He has accepted his past mistakes and is working with a psychologist.

    ·Statutory Declaration from Edwin Ricardo Prieto Rojas dated 9 February 2023. The writer indicates that he met the applicant three years ago and has been very close friends with him since. It attests to the good attributes of the applicant.

    ·Letter from Jessy Zhong, payroll assistant for Consolidated Property Services (Australia), dated 8 June 2022, confirming the applicant’s employment on a part-time basis from 23 August 2017.

    ·Letter from Kerrie Vezzoso, Director of A&S Better Facility Services, dated 8 June 2022, confirming the applicant’s employment on a casual basis from 23 May 2022. It also states that the applicant is a productive team member with integrity and a cheerful personality.

    ·Letter from Gaurav Chopra, administrative manager of Sacred Heart International College, dated 7 June 2022, confirming the applicant’s enrolments in a Diploma of Human Resources Management from 6 July 2020 to 1 August 2021 and Advanced Diploma of Human Resources Management from 30 August 2021 to 21 May 2023.

    ·Diploma of Human Resources Management from Sacred Heart International College, dated 1 August 2021.

    ·Translation of statement indicating the applicant’s completion of high school in Colombia dated 30 November 2015.

    ·Certificates of Completion from 2017 for English language courses at Embassy English and Focus, with a letter from Focus confirming enrolment.

    ·Certificate of Completion in a General English course of 12 weeks ending on 8 September 2017.

    ·Certificate of Completion in a General English course of 12 weeks ending on 22 December 2017.

    ·Letter from Focus indicating that the applicant was enrolled in a General English course as a full-time student from 12 February 2018 until 11 November 2018 and letter of completion from this institution indicating completion of this 36-week course.

    ·Statement of Attainment and transcript of result from St Peter Institute showing competent marks in all but one subject in a Certificate IV in Business completed 19 May 2019.

    ·Letter of Offer from Albright Institute of Business and Language in a Diploma of Business commencing on 23 January 2023 and then an Advanced Diploma of Leadership and Management commencing on 4 November 2024.

    ·Letter from the Department of Justice and Community Safety Victoria, dated 21 June 2022, stating that the applicant is eligible to continue to have a Working with Children Clearance after it was initially suspended.

    ·Undated email being a rental reference for the applicant in Melbourne referring to him leaving the property in good condition and paying his rent on time.

25. In the hearing, the Tribunal put to the applicant pursuant to the procedural requirements of s 359AA of the Act information from the preliminary brief provided by Victoria Police which outlines the allegations of the circumstances leading to the convictions. The Tribunal indicated that information was relevant because it indicated not insignificant physically violent behaviour by the applicant towards the victim. The Tribunal notes that the attack resulted in the victim requiring surgery on his eye. The Tribunal put to the applicant that the consequence of relying on the information in the context of there being the indicated convictions could result in the Tribunal forming the view that the applicant had acted in a way to remove his entitlement to be in Australia holding a Student visa.

26. The Tribunal indicated that it would consider the claimed extenuating circumstances and mitigating factors and remedial actions undertaken as indicated in written statements to the Department and the Tribunal. The Tribunal also noted the indication by the applicant of his successful study history in Australia and future intentions and the implicit hardship that would be suffered if the visa was cancelled. The applicant was given the opportunity to provide any further comment either orally or in writing.

27. Additionally to matters and submissions already provided, the applicant indicated in the hearing that his former partner, the victim, was actually the initial aggressor having punched the applicant in the face and that he was acting in self-defence. The Tribunal noted that the applicant pleaded guilty and the applicant indicated that that was on the advice of his lawyers. The Tribunal asked the applicant if he felt responsibility for the circumstances leading to the conviction and he indicated that he did feel a degree of responsibility.

28. The applicant in the hearing indicated that he has not drunk alcohol since the offence and it is a requirement of the court order that he attends meetings of Alcoholics Anonymous once a week, which he has been doing. However, the applicant indicates that he does not believe that he is an alcoholic.

1. It is clear from evidence provided that from 2017 up until the middle of 2021 the applicant had been making good progress in his studies in Australia having completed English courses, a Certificate IV in Business and a Diploma of Human Resources Management. In the hearing, the applicant indicated that he completed one year of his Advanced Diploma of Human Resources Management until he could not study because his visa was cancelled. The applicant indicated that he passed five units in this course before the visa was cancelled. The Tribunal noted that in the extensive material the applicant had provided to the Department and the Tribunal there was no evidence of these five units being passed. The applicant indicated that he would be able to seek to obtain evidence of this from the education provider and the Tribunal asked that it be provided after the hearing.

2. In response the applicant provided a transcript of the Advanced Diploma of Human Resources Management showing one unit passed and four units not yet completed. The Tribunal sought a further explanation from the applicant in relation to his indication in the hearing that he had passed five units in the course. In response the applicant indicated that he had not been aware that he had not passed the units because he did not continue with his studies. He indicated that he had not yet completed the units because he provided late assessments. The applicant provided computer screen shots that show his late provision of the assignments.

3. While the Tribunal has some concern about the applicant claiming that he passed five units in the course when he did not in terms of his credibility, the Tribunal accepts that the applicant was undertaking the units at completion and provided final assignments, albeit late.

4. The Tribunal does not consider that this late provision of assignments seriously undermines the other evidence that the applicant has broadly been a competent and diligent student in his studies in Australia.

5. The applicant indicates that his desire is to complete the Advanced Diploma of Human Resources Management and then study a Diploma of Business followed by an Advanced Diploma of Leadership and Management. His intention is then to return to Colombia and with the help of his parents open a graphic design business.

6. The applicant indicated that it would be a significant hardship if the visa is cancelled and he cannot continue and complete his studies as desired. The Tribunal accepts a degree of hardship in this respect particularly in the context of the applicant progressing reasonably well in his studies over a number of years from 2017 until the middle of 2022.

7. The Tribunal also accepts hardship to the applicant if the visa remains cancelled in terms of bars on an ability to apply for future visas for Australia for a significant period. The Tribunal accepts a potential hardship if the applicant is an unlawful non-citizen in terms of him being held in immigration detention, however the Tribunal considers that the applicant would have eligibility to continue to hold a Bridging visa.

8. The applicant indicated in the hearing that there are no children in Australia whose interests are affected by the cancellation. The applicant indicated that although he intends to return to Colombia that is a society that is not as tolerant of homosexuality as Australia and there would be some difficulty he would face in returning. However, the applicant indicated that he had his family there and he does still intend to return to Colombia to open a business when he completes his studies. On that basis the Tribunal does not consider as a relevant discretionary factor that non-refoulement obligations are owed to the applicant.

9. Mr Rojas gave evidence that he was principally attending to provide moral support to the applicant who he had known for approximately a year. He did not have any comment beyond his written statement.

10. The Tribunal weighs discretionary factors. Significantly adverse to the applicant is the fact that he physically assaulted an individual who then required surgery on the eye. The default position given the circumstances of the conviction is this removes the applicant’s entitlement to be in Australia and the privilege of holding a Student visa. There would need to be very significant countervailing factors to overcome this default position.

11. The Tribunal accepts that alcohol was a cause at least in part for the attack. The Tribunal notes that in the hearing the applicant claimed that the victim was in fact the aggressor initiating the attack. The applicant acknowledged that he pleaded guilty but indicated that this was on the advice of his lawyers. The Tribunal would be concerned in terms of considering discretionary factors if the applicant sought to claim no responsibility for the issues leading to the convictions. As it is however, the applicant in the hearing did acknowledge responsibility for the attack. The admission of this is important for the Tribunal in considering discretionary factors in his favour.

12. The Tribunal accepts that the applicant suffers from at least some psychological issues evidenced by the fact that he was seeking psychological treatment prior to the attack. On the evidence that has been disclosed the applicant has progressed in a consistent and dutiful way in seeking psychological treatment for his mental health issues. The evidence discloses that the applicant has complied with all of the court-imposed conditions on him to date, including regularly attending AA meetings which the Tribunal accepts that he has done.

13. Considered significant in this matter is the fact that the Department of Justice and Community Safety have indicated they view the applicant is a low risk of general offending.

14. In the applicant’s favour are his successful studies in Australia involving completing multiple courses and making a degree of progress in units in the course he was undertaking at the time that the visa was cancelled. The Tribunal considers that the applicant has demonstrated ability and conscientiousness in relation to his studies. As indicated, the Tribunal considers that it would be a not insignificant hardship to the applicant if he is not able to continue and complete his studies in question. This would disrupt his future intentions in gaining qualifications to return as he intends to Colombia to start a graphic design business.

15. The Tribunal notes in the applicant’s favour the numerous testimonials that have been provided by various individuals as to his good character, and that the event leading to the convictions was out of character. The Tribunal is inclined to be persuaded of this given the testimonials and all of the general circumstances claimed.

16. As previously indicated, there would need to be very significant countervailing factors in an applicant’s favour that would overcome the adverse inferences that will be drawn in this matter as a result of the circumstances leading to the convictions. However, considering cumulatively in this matter the various issues in the applicant’s favour the Tribunal considers that the burden of him overcoming the significantly adverse discretionary factors has been met. These countervailing factors include taking responsibility for the behaviour, psychological conditions, good progress in studies in Australia, evidence as to good character and not insignificant hardship if the visa is cancelled in terms of the applicant’s desire to continue with his studies in Australia.

17. The Tribunal considers that the significant adverse discretionary issues are outweighed by the cumulative consideration of discretionary factors in his favour.

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

    DECISION

19. 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