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

1. 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).

2. 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.

3. 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.

4. 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.

5. 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 there was nothing he wanted to add to the statement, and the Tribunal did not have any questions for him.

6. The applicant was represented in relation to the review. The representative attended the hearing.

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)(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?

9. 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].

10. 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.

11. 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.

12. 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.

13. 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.

14. The Preliminary Brief provided by Victoria Police outlines the allegations against the applicant relating to the charges.

15. The victim in this matter was the applicant’s wife. On 8 March 2022 at around 10 pm, they had an argument about money, with the applicant wanting more money to purchase alcohol. The applicant grabbed the victim’s neck. The victim managed to flee and ran outside their home, but the applicant dragged her by her clothes, causing them to rip. He locked her inside the home. The victim locked herself in the toilet and held the door shut from the inside. The applicant banged on the door. When the victim opened the door, the applicant lit a lighter and attempted to burn the victim. He then sprayed the room with insect repellent in an apparent attempt to make the air unbreathable.

16. The applicant struck the victim in the head with a bottle and struck her across the side of her head and into her mouth. He said, ‘tonight I’m going to kill you’. The applicant closed the bathroom door while the victim was still inside. He started a fire in the kitchen area by lighting some material. He dragged the victim out. The victim believed he was trying to rip her clothes off to burn them.

17. The applicant struck the victim again on the head with the bottle. He used a mop handle to hit her multiple times. The room started to fill with smoke. He opened the front door to let the smoke out, giving the victim an opportunity to run away.

18. The victim stated that the domestic violence had been ongoing for several years but this incident was the first she reported to police. It was noted in the brief that the victim’s first words to First Constable Thomas were, ‘my husband was trying to kill me’.

19. The applicant made no comment during an interview with police.

20. In the hearing the Tribunal put to the applicant the information from the Preliminary Brief pursuant to the procedural requirements of s 359AA indicating an attempt to trap the applicant’s wife in the home, attempting to burn her and spray repellent on her, striking her with a bottle on the side of the head and threatening to kill her and starting a fire. The Tribunal put to the applicant that this information was relevant because it demonstrated significant physical and mental intimidation directed towards his wife. The consequence of relying on this information could be to conclude there at least might be an ongoing risk from the applicant towards his wife and the community. The Tribunal indicated that the consequence of relying on the information and the conviction on the charges could be to determine in the Tribunal considering its discretion that the applicant has obviated his right to be in Australia on the privilege of holding a student visa.

21. The Tribunal indicated to the applicant that it would consider in response the statement and submissions previously made on his behalf that had been provided by the Tribunal. The applicant was given the opportunity to provide any further comment either orally or in writing. It was elected that a written response would be provided.

22. Written submissions provided in advance of the hearing were made on the applicant’s behalf that the ground of cancellation is not made out because he is not at risk to individuals or the community. It is indicated that the event was out of character and a one-off incident. It was his first offence. There is no pattern in the applicant’s behaviour. The applicant was drinking at the time of the incident and was suffering from depression which are mitigating factors. The applicant has now completed a drug and alcohol program and is on medication for his depression. When released into the community the applicant will be assisted by his sister and brother-in-law and supportive friends to commence studying in Australia.

23. A psychologist report from Warren Simmons dated 8 December 2022 was provided to the Tribunal in advance of the hearing. The report refers to the applicant’s alcohol history. The report indicates the applicant claimed that allegations leading to the convictions were not all correct. There was acceptance that he and his wife had a disagreement although he claims he did not assault her. The report concludes that the applicant appears to have been suffering from depression for some time and that he also suffers from hypothyroidism for which he is prescribed medication. The opinion is offered in terms of recidivism, that this was the first offence and is not a part of a pattern of behaviour. The applicant was experiencing depressive symptoms and the offence occurred in the context of alcohol consumption. It is indicated that the offence was directed towards his intimate partner and not the wider community and now that the relationship has ended there is a low risk of reoffending. However, it is indicated that the applicant is not without risk but his experiences with the criminal justice system and the Department served to underline to him that he needs to have more appropriate patterns of behaviour in the future.

24. Following the hearing, the psychologist provided an email in which it is indicated that it is never possible to state that someone who has a disclosable outcome is at no risk of reoffending. A submission provided on the applicant’s behalf after the hearing indicates that the risk of the applicant offending is low. Submissions were also made as to the failure of the Tribunal to call the psychologist to give evidence at the Tribunal hearing. The Tribunal did not call the psychologist to give evidence because it was inclined to accept the report at face value and did not have issues that it wished to further explore.

25. The written submission provided on behalf of the applicant in advance of the hearing refers to and provides an email from the lawyer who acted on his behalf in relation to the criminal matter. The email indicates that because the criminal matter was heard in the Magistrates’ Court as opposed to the County Court it is an indicator that the matters are not considered overly serious and needing to be heard in the County Court. The submission makes reference to the opinion of the psychologist as to the low risk of recidivism. The submission refers to the statement provided to the Tribunal from a friend of the applicant’s, Ivan Standford which indicates the applicant feels a great deal of shame due to his conduct and wishes in hindsight that the events did not happen. The statement also attests to the applicant’s good character.

26. The submission provided after the hearing on the applicant’s behalf, comments on the adverse s 359AA information put in the hearing being the information in the Preliminary Brief. It is submitted that little weight should be attributed to these documents and the information contained in them. It is indicated that in the absence of formal sentencing remarks it cannot be confirmed that the police brief truly reflects the facts which the applicant pled guilty to.

27. The Tribunal considers that the allegations in the context of the conviction and the not insignificant penalty imposed are significantly probative of the allegations in the Preliminary Brief.

28. The submissions and other material provided are considered in determining both whether the ground for cancellation exists and in relation to relevant discretionary factors discussed below, particularly whether there are extenuating circumstances beyond the applicant’s control leading to the convictions.

29. In terms of whether the ground for cancellation exists, it was noted to the applicant that his psychologist provides the opinion that the applicant is at a low risk of offending. However, as indicated to the applicant in hearing his psychologist provides the opinion that the applicant is not without risk. The psychologist after the hearing has confirmed that where there is a disclosable outcome it can never be said that an applicant is not without risk.

30. The Tribunal notes that the risk only requires that there may or might be a risk not that there is an actual risk. The Tribunal put to the applicant in the hearing in light of all the circumstances it was inclined to consider that there still may or might be a risk to both the community and his wife given that he was convicted of a physical attack of sufficient seriousness requiring 11 months in prison. The applicant’s reply in the hearing was not responsive to this issue. The applicant’s representative maintained this submission that there was not the requisite risk of harm by the applicant.

31. The Tribunal considers on the basis of the quite serious assault and other harmful activity perpetrated by the applicant leading to the convictions together with the assessment by the applicant psychologist that there is a low risk and that the applicant is not without risk, readily leads the Tribunal to the view that the applicant is or may or might be a risk to the victim of the assault and to the community generally.

32. 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

33. 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.

34. 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.

35. 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.

36. While the Tribunal is prepared to make some allowances due to the applicant’s depression, alcohol consumption and the dementia of his sister the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify or excuse the violent behaviour leading to the convictions or obviate the applicant from responsibility. This determination is adverse to the applicant in the Tribunal considering this discretion as to whether the visa should be cancelled.

37. The applicant has indicated including in the hearing that he is no longer in a relationship with his wife. His wife is the primary visa holder. A visa may be cancelled under s 116(1)(a) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

38. Thus, the applicant does not appear to be for the purpose of reg 1.12 of the Regulations, the spouse or the de facto partner of the primary visa holder on the basis that the relationship between them is not continuing and they do not live together (see definitions of ‘spouse’ and ‘de facto partner’ in ss 5F and 5BC of the Act).

39. Accordingly, the applicant no longer meets the secondary criteria for the grant of the visa as being a member of the same family unit as the primary visa holder. Therefore, the Tribunal considers likely that the decision to grant the visa to the applicant was based wholly or partly on the applicant being a member of the same family unit as the primary visa holder, that that particular fact or circumstance is no longer the case, and the ground for cancellation in

    
    

    s 116(1)(a) is made out.

1. The fact that there would appear to be another ground for cancellation under s 116(1)(a) could be a significant adverse discretionary factor as to whether the visa would be cancelled. The applicant was given the opportunity in the hearing to make comment on this. In response the applicant indicated that he had no comment.

2. In terms of the grounds on which the visa might be cancelled, 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 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)).

3. The applicant has conceded the criminal conviction and sentence.

4. The fact that there would appear to be this second ground on which the visa could be cancelled is an additional significant discretionary factor as to why the Tribunal should not exercise its discretion to cancel the visa. In response the applicant indicated that he had no comment.

5. The applicant previously studied.  Government Movement Records indicate that from 31 March 2009 until 15 May 2009 the applicant held a Student TU-572 visa. The applicant’s earlier enrolments in a registered course were cancelled on 21 September 2011 and a further registered course was not enrolled in until 11 April 2013. The applicant’s written statement to the Tribunal indicates that his enrolment was cancelled because of issues with funds and with the applicant in the hearing. The applicant indicates that his parents passed away. The applicant indicates that he recommenced studying in 2013.

6. The delegate drew an adverse inference in terms of the applicant not being enrolled in a registered course which is required under condition 8202 of his previous student visa. However, as put to the applicant in the hearing its information as to the applicant’s visa did not show him holding a student visa during the period of non-enrolment. The Tribunal indicated that it would seek to confirm this visa history and asked the representative also to do so in the submission provided following the hearing.

7. Subsequent evidence gathered does not indicate that the applicant held a student visa at the time of not being enrolled in registered courses. Thus, this is not considered as an adverse discretionary factor.

8. In terms of hardship to the applicant if the visa remains cancelled and compelling reasons for him to remain in Australia, a written statement provided by the applicant in advance of the hearing indicated that he is interested in studying agriculture and botany. The submission by the applicant’s lawyer indicates that cancellation of the visa is a hardship to his sister and brother-in-law who reside in Australia. The Tribunal accepts that there may be some hardship to family members in Australia and hardship to the applicant as a result of not being able to progress with intended study in Australia. In the hearing the applicant additionally indicated that he has been in Australia a long time implying that it would be a hardship as a result to return to Nepal. The Tribunal is willing to accept some hardship in this respect.

9. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of limitations on his ability to apply for many other visas onshore. The Tribunal accepts that if the visa remains cancelled he is liable to immigration detention as an unlawful non citizen. Indeed, the applicant has recently finished his criminal sentence and been removed to immigration detention. However, the Tribunal gives the fact of the applicant being in immigration detention limited weight in his favour given that this will only be for the relatively short period it takes to make arrangements for the applicant to leave the country.

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

11. The applicant indicated that he intends eventually to return to Nepal. The Tribunal put to the applicant that this would suggest he does not fear persecution or significant harm in Nepal. The applicant then indicated that his uncles have taken action to acquire property after the death of the applicant’s parents and they are not good people. The Tribunal asked the applicant if he was claiming that they would harm him and the applicant indicated that he was. The applicant however indicated that he had not given thought to the need of a protection visa given potential harm from relatives in Nepal. The Tribunal put to the applicant that given the applicant’s initial indication that he intended to return to Nepal it was not inclined to consider that the level of claimed harm from relatives was of a degree that would require a protection visa in Australia. The Tribunal indicated that the fact of the option of a protection visa limits the weight that the Tribunal would give in this review to the fact of it being claimed that the applicant faced harm in Nepal. The applicant said ‘yes’ to both these conclusions of the Tribunal. The written submission provided following the hearing indicates that the relevance of the applicant being able to apply for a protection visa only applies to mandatory visa cancellations.

12. The Tribunal does not consider given the applicant’s initial indication in the hearing that he intends to return to Nepal that he faces a real chance of serious or significant harm in Nepal and that Australia’s non-refoulement obligations are relevant.  Even if there were the risk of requisite harm, the fact that the applicant has the option to apply for a protection visa means that whether the applicant is owed non-refoulement options by Australia is not an overly relevant discretionary factor.

13. The Tribunal weighs key discretionary factors. Significantly adverse to the applicant are the factual circumstances leading to the convictions indicating quite violent and intimidating behaviour by the applicant to his wife. Having said that, the Tribunal is prepared to accept that the criminal proceedings were held in a court reserved for less serious offences. However, countering this, the Tribunal does not consider that an offence which results in 11 months’ imprisonment can be considered minor or trivial. The Tribunal is willing to accept that the applicant’s risk of reoffending is low, but it does not consider that there is no risk. The Tribunal accepts in the applicant’s favour that there are some mitigating factors leading to the convictions, namely depression and alcohol abuse. However, the Tribunal considers that the applicant does bear significant personal responsibility for the attack.

14. Significantly adverse to the applicant in considering discretionary factors is the fact that there are two other key grounds on which the applicant’s visa could have been cancelled, namely that he is no longer in a relationship with the primary visa holder and the criminal convictions would themselves be grounds on which the applicant’s visa could be cancelled.

15. The Tribunal accepts hardship to the applicant and family members if the visa remains cancelled including in terms of him not being able to progress with study in Australia and having to return to Nepal earlier than he would like in the context of him being away from Nepal for many years.

16. The Tribunal takes into account in the applicant’s favour exercising the discretion that the criminal matters were held in a court that did not consider overly serious offences. The Tribunal takes into account in the applicant’s favour his claimed remorse, treatment for the use of alcohol, his sister’s dementia and the fact that this is the only conviction held by the applicant.

17. Balancing all discretionary factors, the Tribunal readily considers that matters in favour of exercising the discretion to cancel the visa significantly outweigh matters against exercising the discretion.

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

    decision

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

    David McCulloch
    Member