Nepal (Migration) - [2023] AATA 302

Nepal (Migration) [2023] AATA 302 (24 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Saroj Nepal
REPRESENTATIVE:  Ms Carina Ford
CASE NUMBER:  2207325
HOME AFFAIRS REFERENCE(S):          BCC2022/1077966
MEMBER:David McCulloch
DATE:24 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 24 January 2023 at 9:56am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – member of family unit of primary visa holder – risk to safety of individual – convictions and imprisonment for assault of wife – discretion to cancel visa – claim of previous domestic violence – depression and alcohol use – drug and alcohol program and medication – low but not no risk of reoffending – other grounds for cancellation – convictions and no longer meeting criteria – relationship ended – previous non-compliance as primary visa holder – immigration detention and non-refoulement – fear of harm from uncles – possibility of applying for protection visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(a), (e), (g), 359AA
Migration Regulations 1994 (Cth), rr 1.12, 2.43(1)(oa)
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
application for review

This is an application for review of a decision dated 11 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).
The applicant is a citizen of Nepal born in 1987. The visa that was cancelled was granted on 27 July 2020, expiring on 14 March 2023. The primary visa holder was the applicant’s wife, the applicant held the visa as a dependent. The applicant had previously held Student visas in his own right, the first being a TU-572 Student visa granted on 31 March 2009.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 13 April 2022 and was confirmed to have been received by the applicant the following day. The applicant did not provide a response to the NOICC.
The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant’s presence in Australia may pose a risk to a segment of the Australian community, that his presence might be a risk to the safety of an individual, namely Ms Ngo Quynh Tram Pham. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 December 2022 at 9:30 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. Mr Ivan Sanford was present at the hearing to give evidence. He had previously provided a written statement to the Tribunal. At the end of the hearing, Mr Sanford indicated that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nepal (Migration)

Details

AGLC: Nepal (Migration) [2023] AATA 302
Case: [2023] AATA 302
Decision Date: 24 January 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) visa (Subclass 500) was cancelled. The dispute arose from the applicant's criminal convictions for serious offences, including false imprisonment, making threats to kill, and common law assault, for which they received a sentence of 11 months imprisonment. The applicant was released from prison and transferred to immigration detention.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(e) permits the Minister to cancel a visa if satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal also had to consider various discretionary factors, including extenuating circumstances, the applicant's behaviour, potential hardship, and any international obligations Australia might have.

The Tribunal reasoned that the applicant's convictions for serious offences, as evidenced by court records and acknowledged by the applicant, satisfied the ground for cancellation under section 116(1)(e). While acknowledging the applicant's diagnosis of depression and cessation of alcohol use as potentially contributing factors, the Tribunal was not satisfied that these factors removed personal responsibility for the serious assault. The Tribunal accepted that some extenuating circumstances existed but concluded that the conduct leading to the charges was not entirely beyond the applicant's control. After considering all relevant discretionary factors, including government policy guidelines, the Tribunal determined that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.consideration of Claims and evidence Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? A visa may be cancelled under s 116(1)(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]. 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. The Department file contains police documents relating to the following seven charges against the applicant: false imprisonment, make threats to kill, recklessly cause injury, unlawful assault, assault with weapon and common law assault. The Tribunal obtained the Court record relating to the applicant of those charges from Broadmeadows Magistrates’ Court of Victoria. According to the report, the applicant was convicted and sentenced to an imprisonment term of 11 months for false imprisonment, make threats to kill and common law assault. The remaining charges were withdrawn. The applicant’s lawyer provided a written submission to the Tribunal dated 12 December 2022. The submission acknowledges the convictions and sentence. The applicant on 12 December 2022 was released from prison and transferred to immigration detention. In the hearing, the applicant acknowledged the convictions and sentence. The Preliminary Brief provided by Victoria Police outlines the allegations against the applicant relating to the charges.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.decision The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.David McCullochMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or the Migration Regulations 1994 (Cth) (the Regulations) that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 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. A key discretionary factor is whether there are extenuating circumstances beyond their control in relation to the ground of cancellation being made out. The Tribunal accepts that the applicant has had a diagnosis of depression and that alcohol was potentially a contributing factor to the offences and that he has now ceased using alcohol. However, as put to the applicant in the hearing the Tribunal is not satisfied that these factors indicate no personal responsibility for the serious attack. In response the applicant agreed that there was an element of personal responsibility he needed to accept for the attack. In the written submission provided on the applicant’s behalf following the hearing it is submitted that there are extenuating circumstances, being the applicant’s alcoholism and the dementia of his sister in Nepal. It is submitted that it is an error for the Tribunal to consider as a discretionary factor that the applicant cannot absolve himself from all responsibility. The Tribunal considers that this is relevant in determining the circumstances relating to the ground of cancellation being made out and whether there are extenuating circumstances beyond the applicant’s control. The Tribunal accepts some extenuating circumstances but does not accept that the conduct of the applicant leading to the charges were totally beyond the applicant’s control.