Nagpal (Migration)

[2023] AATA 715

Nagpal (Migration) [2023] AATA 715 (22 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manav Nagpal

CASE NUMBER:  2208286

HOME AFFAIRS REFERENCE(S):          BCC2021/2108664

MEMBER:David McCulloch

DATE:22 February 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2023 at 10:41am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal conviction – obtaining financial advantage by deception – allowed acquaintance to transfer money into his bank account – intensive correction order – discretion to cancel visa – awareness of criminality of transfer – visa and study history – no course completed, period of non-enrolment and two previous visas cancelled – currently in criminal detention waiting for trial on similar charges – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359AA
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 May 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 India born on 8 June 2000. The visa that was cancelled was granted on 17 October 2019, expiring on 15 September 2022.

3. A Notice of Intention to Consider Cancellation (the NOICC) was sent to the applicant on 10 December 2021. The applicant provided a response to the NOICC on 9 January 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 Tribunal conducted a search on the Provider Registration and International Student Management System (PRISMS) on 19 August 2022. The results of the search show that the applicant held a Confirmation of Enrolment (CoE) on three occasions, all of which were cancelled. There is no evidence before the Tribunal that the applicant ever completed a registered course in Australia.

6. The applicant appeared before the Tribunal on 10 February 2023 at 9:30am to give evidence and present arguments.

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 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)).

10. The delegate’s Decision Record and documents on the Department and Tribunal file indicate that, according to a report provided by the New South Wales Police, the applicant pled guilty to and has been convicted of the following criminal offence: on 17 June 2021 at Newcastle Local Court for dishonestly obtaining financial advantage etc. by deception – with an intensive correction order for 10 months commencing 10 June 2021, among other conditions.

11. In the hearing, the applicant agreed with the fact of this conviction and sentence.

12. 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

13. 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 the removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

14. The New South Wales Police Facts Sheet outlines the allegations against the applicant relating to the charges.

15. On 31 July 2020, an individual (the victim) was misled over the phone by a male individual into depositing $20,000 into a St George bank account in the name of the applicant. The applicant opened the bank account on 30 July 2020. On 31 July 2020, approximately 50 minutes after the fund was deposited into the applicant’s bank account, the applicant attended a St George branch in Hamilton and attempted to withdraw the $20,000. As an alert had been placed on the account by the bank, police were called and attended the location. The applicant was arrested. During an electronically recorded interview with police, the applicant stated that he did not know who deposited the $20,000.

16. It is indicated that police believe that the applicant acted with a common purpose within a criminal enterprise targeting persons through computer scams.

17. The applicant provided the following statement in response to the NOICC (not corrected for spelling or grammar):

    My name is Manav Nagpal, a citizen of India. My birth date is, 8th June 2000. I am writing this letter regarding the cancellation of my student visa on 30th May. My visa was granted on 17th October 2019 and the visa grant number was 1069585130280. 

    I arrived in Australia on 25th October 2019 to study Diploma of Business and Commerce leading to Bachelor of Business at the University of Newcastle after completing my schooling from my home country, India. When I first arrived in Australia, I did not have any friends or acquaintances here. This led me to depression and made me homesick. I would constantly feel the urge to get re-assurance from my family back home. Shortly after arriving in Australia, Covid-19 pandemic hit the world. This pandemic also caused significant financial hardship as I did not have any roommate to share my rental payments and I could not get any support from my family due to the pandemic, which led me to apply to different kind of jobs, including UberEATS. While working at Uber, I met Vipin who introduced himself as another international student from India. I would run to him regularly and started considering him as my friend. On July 2000, Vipin asked me if I could assist him with a money transfer into my account as he was unable to receive money due to his bank limit and the money was supposed to be sent by his parents. I was promised to be given 2,000 AUD. As I thought I am helping a friend in need, and it was a fast way to earn money. Vipin also asked me to open a new account in ST. George Account specially for this transfer which I agreed. 

    On 31st July 2020, I received the notification that 20,000 AUD had been deposited to my account.

    When I went to withdraw the amount to give to my friend, I was arrested and charged with Dishonestly Obtain Financial Advantage Etc by Deception-T1. This was my first time being charged with any crime, not only in Australia but also anywhere else. 

    As I was facing financial distress, I attempted to find ways to support myself and wanted to help a friend in need. I was not aware that the moneys were obtained fraudulently, so I provided an interview to the police without gaining legal advice. I mentioned the reason of collecting the moneys and provided all the contact details of Vipin, but the NSW police could not trace Vipin and believed that he fled the country and returned to India. I did not attempt to conceal my identity at any cost and cooperated with the NSW Police by providing all the information necessary. I used my personal bank because I honestly believed that I was legally entitled to collect the money.

    Afterwards, I appeared before Newcastle local court self-represented as I could not afford to have a lawyer. So, I contacted legal aid through a court staff and was assigned a lawyer named Mathew Unwin. I was advised by him to plead guilty, otherwise if I go for trial or hearing, I will get 2/3 years of prison time. I did not want to take the plea of guilty as I believed that I had done nothing wrong and the only person who should be charged was, Vipin. My lawyer advised me that if I took the plea of guilty, I would only receive community service given the circumstance and severity of my case. As I was already under sever distress and I wanted to save myself from the term of imprisonment, I listened to the advice of my lawyer and plead guilty. In response, I got 10 months of community correction service. 

    I believe that my visa should not be cancelled due to the nature of my offence. I did not know that my actions were illegal and was under the impression that I was helping a friend in need. I come from a small family from India. My father invested a lot of money and made huge sacrifices to send me to Australia for my studies. If I am forced back to India because of the cancellation of my visa, my studies will be stopped and my reputation in my home country will be tarnished forever. This will also bring significant disgrace to myself and my family. When I first arrived in this country, I was only 18 years old and had no guardian or family support to guide me to the right direction. Therefore, I moved to Sydney and staying with my friend Dian Awais because I was not getting proper help or support from Newcastle. I also changed my course and enrolled myself in Bachelors of Community Services at Stott’s College in September 2021 because I believe, because of my unfortunate incident, I would be able to contribute to the Australian community services and back home after completion of my studies properly. I believe that now I am around friends and right support to make any reliable decision and in my interest. 

    I complied to all the orders made by the Newcastle court till date and did not break any laws or did not breach any other conditions of my visa in my 2.5 years of stay in Australia. Also, I have always been compliant with the relevant rules and regulation while living in Australia. Although I could not start my community service until December 2021 due to the pandemic, I have been compliant with the community services since my conviction.

    Now I understand the severity of my actions. i.e., that my account was used in the contract of a crime without my knowledge. I was not eligible for any government relief to assist me through Covid-19 pandemic which caused me major financial strain and led me to take the poor judgment.  When NSW police conducted their investigation, I was transparent with them regardless of the consequences and was concerned for the situation. Now I am remorseful of the breach of trust and would like to rectify the actions made from my poor judgment. 

    I would like to appeal to honorary administration about the cancellation of my visa and would like this opportunity to request for a review of my case and consider my situation.

18. Provided also in response to the NOICC on the applicant’s behalf was the submission by a lawyer which repeats elements of the applicant’s statement above. It reiterates the applicant was not aware at the time the crime was committed that the moneys were obtained dishonestly and that he was simply seeking to help a friend in need.

19. The submission indicates that the applicant’s family has significantly invested in the applicant’s studies in Australia and that they are of limited means and will be reliant on the applicant to provide for his family once he has completed his studies. If the applicant has to return to India with his visa cancelled this will impact on his reputation. It indicated that the applicant has been compliant with all orders made by the court and community corrections since his conviction. The applicant has not breached any other conditions of his visa. It is submitted that the applicant was transparent with New South Wales Police when they conducted their investigation.

20. In the hearing, the Tribunal put to the applicant the information in the New South Wales Police Facts Sheet relating to the charges pursuant to the procedural requirements of s 359AA.  The Tribunal put to the applicant that the factual allegations leading to the convictions together with the applicant pleading guilty to dishonestly obtaining financial advantage by deception strongly indicate that the applicant was aware of the criminality in securing the deposit of the funds in his account. Additionally, the fact that the New South Wales Police Facts Sheet indicates that when questioned by police the applicant did not know who had deposited the funds in his account is inconsistent with his claims that the money was to be deposited to assist his friend Vipin.

21. The Tribunal noted that the information was relevant because it indicates culpability by the applicant and that he has potentially in the circumstances of the alleged facts leading to the conviction obviated his right to be in Australia on the privilege of a student visa. The Tribunal noted that the consequence of relying on this information could be to assess discretionary factors significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

22. The Tribunal indicated that in response it would be considering the written statement provided by the applicant’s response to the NOICC together with his lawyer’s submission including indicating the there was no knowledge of unlawfulness and that he felt pressured to plead guilty without the aid of his own lawyer. The applicant was invited to provide any further comments either orally to the Tribunal or in writing.

23. The applicant indicated that he did not wish to make any comment either orally or in writing. The Tribunal asked if he was claiming that there are extenuating circumstances surrounding the conviction and he indicated that they are just allegations.

24. Given the conviction, all of the evidence and circumstances and taking into account the applicant’s statement and submissions, the Tribunal considers that the applicant had knowledge of the criminal nature of the enterprise he was engaged in and does not consider that there are extenuating circumstances beyond his control leading to the conviction. The conviction and its circumstances are considered as significant adverse discretionary factors in the exercise of the Tribunal’s discretion.

25. At the time of the hearing, it was apparent that the applicant was in criminal detention. The Tribunal asked the applicant as to the basis on which he was in detention. The applicant indicated that he had been accused of money laundering together with another nine individuals. The applicant indicated that he had not been granted bail and the matter had not gone to trial. However, at a point in the hearing the applicant indicated that charges had not been laid against the applicant. The Tribunal could not ascertain the basis on which he was in custody if he had not been charged. The Tribunal gave the applicant a period following the hearing to make arrangements through his criminal lawyer for the Tribunal to be advised of any charges laid against the applicant.

26. In response the lawyer indicated the following charges:

    ·Sequence 1: Deal with property proceeds of crime < $100,000;

    ·Sequence 2: Knowingly deal with proceeds of crime with intent to conceal;

    ·Sequence 3: Knowingly deal with proceeds of crime with intent to conceal;

    ·Sequence 4: Dishonestly obtain property by deception;

    ·Sequence 5: Possess identity info to commit, etc. an indictable offence;

    ·Sequence 6: Participate in criminal group and contribute to criminal activity.

27. The Tribunal put to the applicant in the hearing that the apparant allegation of the applicant’s involvement in money laundering could indicate a pattern of criminal behaviour when considered in the context of his criminal conviction and the circumstances of that conviction.

28. The applicant noted that he would be pleading ‘not guilty’ to the current allegations.

29. While noting that the current charges have not been determined the Tribunal considers it adverse to a degree in considering discretionary factors that the applicant has subsequent to his conviction being charged with numerous and quite serious offences. It suggests a pattern of criminal behaviour.

30. The Tribunal explored in the hearing his study history in Australia. Government records indicate that the applicant commenced a Diploma of Business and Commerce on 21 October 2019 which was cancelled on 9 March 2020 when the applicant notified cessation of studies. A subsequent enrolment in a Bachelor of Business was cancelled on 13 March 2020 due to non-commencement of studies. A Bachelor of Community Services due to commence on 13 August 2021 was cancelled on 24 May 2022 for non-payment of fees.

31. The applicant indicated in the hearing that he withdrew from the Diploma of Business and Commerce because, although he had passed units in the first semester, he failed them in the second semester. The applicant indicated that he had to discontinue his Bachelor of Community Services due to his current incarceration. The Tribunal accepts the latter.

32. The Tribunal pointed out to the applicant, and the applicant agreed, that he had not been enrolled in a registered course as required by Condition 8202 on his visa from 9 March 2020 until 11 August 2021. The Tribunal noted that this failure could be an additional significant adverse discretionary factor for the Tribunal to consider in the exercise of its discretion.

33. The applicant indicated that study was limited due to the stress of the charges leading to the conviction and funds needed to be directed towards his defence as opposed to study. The Tribunal questions the latter given that the applicant’s written statement says that he could not afford a lawyer.

34. The Tribunal also noted that the charges against the applicant had not arisen until July 2020 but he had undertaken no study since withdrawing from his Diploma of Business and Commerce on 9 March 2020. The applicant in response referred to the timing of the commencement of the Bachelor of Community Services.

1. Even making allowance for the stress and cost of criminal charges being laid against the applicant and the timing of the courses, the Tribunal considers it not insignificantly adverse to the applicant in the exercise of the Tribunal’s discretion that he breached his visa obligation to be enrolled in a registered course for the considerable period of one year and five months. Timing of the commencement of courses does not remove the requirement of compliance with a visa requirement to be enrolled in a registered course.

2. The Tribunal asked the applicant what hardship he would face if the visa remained cancelled and he had to return to India. The applicant indicated that there would be no hardship. The Tribunal asked the applicant if he was sure that there would be no hardship given that he was seeking to have the visa reinstated. The applicant repeated that there would not be hardship. However, the applicant when probed further indicated that a hardship would be the inability to proceed as he would like to complete his Bachelor of Community Services and wasted resources in terms of his stay and study in Australia.

3. Albeit that the applicant’s study record may cast doubt on his genuine intention or ability to progress with study in Australia, the Tribunal does accept a degree of hardship to the applicant if he is not able to progress with his desired study in Australia and has to return to India. The Tribunal accepts hardship to the applicant and his family as a result of resources expended for the applicant to study in Australia with limited results and damage to the applicant’s reputation if the visa is cancelled and he returns home with very limited study outcomes.

4. The Tribunal also accepts hardship to the applicant if the visa remains cancelled in terms of his inability to apply for many categories of visas onshore. The applicant could also be an unlawful noncitizen and subject to Immigration detention albeit that the Tribunal considers that he could seek a bridging visa to make his status lawful while he makes arrangements to leave the country. If a bridging visa was denied then any period of Immigration detention would be limited to the period it takes for arrangements to be made to leave the country.

5. The applicant indicated in the hearing that there are no children in Australia whose interests are affected by the cancellation.

6. In the hearing, the applicant indicates that there are no difficulties for him in returning to India. The Tribunal therefore does not consider that the applicant fears persecution or significant harm in India and/or that Australia’s non-refoulment obligations are relevant.

7. The Tribunal balances discretionary factors. Significantly adverse to the applicant are the circumstances surrounding the criminal conviction and the fact that the Tribunal considers criminal knowledge and culpability on the part of the applicant. The Tribunal does not accept that there are extenuating circumstances beyond the applicant’s control leading to the conviction. The Tribunal takes into account in the applicant’s favour that a custodial sentence was not imposed. Adverse to a degree to the applicant are the current criminal charges against him which are clearly serious. Significantly adverse to the applicant is his failure to be enrolled in a registered course as required by Condition 8202 on his visa for a period of one year and five months. The Tribunal accepts some degree of hardship to the applicant if he is not able to complete his Bachelor of Community Services. The Tribunal accepts some other hardships including limitations on the applicant being able to obtain future visas to enter Australia.

8. Weighing these key and all other discretionary factors the Tribunal readily concludes that matters adverse to the applicant outweigh matters in his favour.

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

   DECISION

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

    David McCulloch
    Member