Neupane (Migration)

[2022] AATA 838

Neupane (Migration) [2022] AATA 838 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Nawaraj Neupane

CASE NUMBER:   2107335

HOME AFFAIRS REFERENCE(S):          BCC2020/1990540

MEMBER:David McCulloch

DATE:5 January 2022

PLACE OF DECISION:  Sydney

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

Statement made on 05 January 2022 at 9:43am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –criminal convictions – significantly inappropriate and antisocial conduct – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116,359
Migration Regulations 1994 (Cth), r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 May 2021 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 on [date]. The visa that was cancelled was granted on 24 March 2020, expiring on 10 June 2022.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 10 May 2021. The applicant provided a response to the NOICC on 21 May 2021.

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. Movement details of the applicant held by the Department of Home Affairs indicate that the applicant was an unlawful non-citizen as at 11 October 2021.

6. A check conducted using the Provider Registration and International Student Management System (PRISMS) on 25 October 2021 indicates that, as at that date, the applicant was not enrolled in any relevant courses for the purpose of the student visa.

7. The applicant appeared before the Tribunal on 16 December 2021 at 9am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

8. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

9. 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

10. 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?

11. 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)).

12. The delegate’s decision record and documents on the Department file indicate that, according to a report provided by NSW Police, the applicant was convicted of the following criminal offences on 21 January 2021 at the Parramatta Local Court: one count of intentionally sexually touch child >= 10 years and <16 years – T1 with a 2 year Community Correction Order commencing on 21 January 2021, and 2 years’ supervision commencing on 21 January 2021; one count of stalk/intimidate intend fear physical etc harm (personal) – T2 with a $500 fine, a 2 year Community Correction Order commencing on 21 January 2021, 2 years’ supervision commencing on 21 January 2021 and 75 hours of community service work.

13. In the hearing, the applicant acknowledged these two convictions.

14. 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

15. 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; any 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, and 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.

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

17. The applicant is a Nepalese National and married to a Nepalese National. The complainant is a 12 year-old girl. On 25 February 2020, the complainant and the applicant attended Asquith Rail Station. The complainant was wearing a school uniform. At 2:36pm, they boarded carriage 6 of a citybound train from difference points of entry. The complainant walked to the upper level of carriage 8 where the applicant followed. No other person was there.

18. The applicant looked at the complainant and she immediately left to the lower level of carriage 8. The applicant left and momentarily peered into the lower level of carriage 8 before returning to his seat.

19. At 2:42pm, the applicant went to the lower level of carriage 8 and sat two seats directly in front of the complainant. Both of them were facing the front of the train.

20. At 2:44pm, the complainant walked to carriage 7. The applicant followed her. The complainant looked behind to see that the applicant was following her, and she turned around and walked back toward carriage 8 to see if the applicant would follow her. As the complainant passed the applicant, the applicant reached out with his left hand and, in a sweeping motion, touched the complainant’s buttocks. The applicant continued walking and entered the lower level of carriage 7.

21. The complainant described the physical contact as being that the applicant’s hand touched the skin on the back of her tights in an upwards motion towards her buttocks. The complainant immediately turned and looked at the applicant as he entered the lower level of carriage 7 and said to him, ‘Fuck off. What’s your problem?’ The applicant turned around, looked at the complainant in the eyes, and smiled. The complainant walked out of carriage 7.

22. At 2.52pm, the applicant walked through carriage 7, passing an unknown female, and he turned his head and leered at her for several seconds. At 2.53pm, the applicant leered at the female for no less than 90 seconds, and whilst doing so, fondled his penis on the outside of his clothing for no less than 7 seconds.

23. The entire movements and actions of the complainant and the applicant while the applicant was on the train were captured by CCTV.

24. On 19 March 2020, an image of the applicant was released in the media with an appeal for information. On the same day, the applicant turned himself in to the Hornsby Police Station. He was subsequently arrested, cautioned and entered into custody. He denied the touching was intentional. He denied leering at the unknown female and fondling his penis.

25. The applicant provided a Statutory Declaration to the Department dated 20 May 2021 in response to the NOICC:

    1.       I first arrived in Australia on 11 April 2019 as a secondary visa holder of my wife's student visa.

    2.       There are five members in my family including my wife. My parents and younger brother live in Nepal. My younger brother is at Grade 8. He always looks up to me and considers me as his role model.

    3.       I am currently studying Certificate IV in Commercial Cookery at Duke College, Parramatta. Upon the completion of the certificate IV, I would be starting Diploma of Hospitality Management at the same college. I am going to complete my courses in April 2022.

    4.       On 21 January 2021, I pleaded guilty of two offences Intentionally sexually touch child and Stalk/intimidate intend fear physical harm etc. by the Paramatta Local Court.

    5.       I was sentenced to a two years' Community Correction Order starting on 21 Jan 2021. As part of my sentence, I was required to complete 75 hours of community service work and two-year good behaviour bond. I have already completed the community service work (a letter from community service organiser has been provided attached).

    6.       The details of the incident are recorded on the NSW Police Fact Sheet (Fact sheet attached) which are true.

    7.       I am ashamed of what happened that day and I wish I never boarded that train that day. I am deeply remorseful of the incident and apologise for the trauma caused to the girl.

    8.       I wish I could go back in time and correct everything. Unfortunately, that is not possible. I can only remorse at my action and can only make promises to not repeat any such thing in future.

    9.       I am not that kind of person and I wonder what happened to me that day. It has changed everything in my life. The incident has impacted my mental health and my family relationships.

    10.      Following the incident, my wife has also left me, and she lives separately now. I have apologised to her thousand times, but things have not worked out so far. I have genuine fears that it could lead to a permanent separation and eventually to divorce.

    11.      Apart from what happened that day, I have not been involved in any other incidents.

    12.      I believe I am a person with high integrity and good moral values. I also take family responsibilities very seriously. As the eldest child of my parents, I need to guide my younger brother for his better future and take care of my parents at their old age.

    13.      My parents also have very high hopes for my future like any other parents, and I am determined to make them proud.

    14.      I accept my mistakes. I accept the sentences as well. In future, I want to become better person.

    15.      As mentioned above, I have already served my community service hours. I would like to assure you that I will be a better person and will not repeat any such incidents in the future.

    16.      Apart from the punishment from the court, the incident has cost my relationship with my wife. It is already overwhelming to bear. I am not able to handle any more punishments—at least not in the form of my visa cancellation.

    17.      I have learned very good lessons through the incident and importance of the discipline in our life. I wonder why I did what I did that day. It may be because of my age and I was just 20. I accept that no excuse can undo what happened that day. I can only make promises to be a better person.

    18.      As I am gradually getting back to my normal life and trying to forget what happened. Now I have been serviced with a NOICC notice; it has caused so much stress to me that I have not been able to sleep since I received the notice.

    19.      If my visa is cancelled now, it will have immense and lasting negative impacts in my life. Apparently, it will close the door of my further education in Australia. My mental health is also going to be affected as I cannot think of returning Nepal at this point. Besides, it will also close the door of upskilling myself and leading a better career in Nepal.

    20.      I believed that I have already got my punishment. I will be completing my course in less than a year's time. I would like to humbly request the department to take a holistic look on my case and not to cancel my student visa.

    21.      Even if my visa is cancelled now, I will not be able to travel back to Nepal at this time due to the second wave of COVID-19 in Nepal. It seems it will take several months for the situation to improve back home.

    22.      I have my whole life ahead of me. I firmly believe that I should get a second opportunity to become a better person and be able to contribute to my society.

    23.      With the studies from Duke College, I will be able to lead a good career back in Nepal. I have already invested a lot of time and effort in my studies. I cannot think of a situation when I will be forced to leave Australian without completing my studies.

    24.      I have sincere student and consult with my teachers regularly. My teacher has also provided a character reference which has been attached to this email.

    25.      I have very good relationship with my friends and colleagues at work. My boss, An Nguyen, admires my hard work and dedication. She has also provided character reference which has also been attached.

    26.      As I mentioned above, I should get a chance to make amends and be a better version myself.

    27.      I hope the department will exercise its discretion and show leniency to me and allow me to complete my studies in Australia

26. Also provided in response to the NOICC to the Department were the following:

    ·Written submissions dated 21 May 2021 and 9 December 2021 . Details of a number of the particular submissions made are referred to further below in this decision.

    ·Letter from NSW Justice Corrective Services dated 30 April 2021, confirming that the applicant has completed the community service work condition of his Community Correction Order.

    ·Copy of a treaty entitled ‘International Covenant on Economic, Social and Cultural Rights’ adopted on 16 December 1966, which entered into force on 3 January 1976.

    ·Reference letter from Mr Kabir Zaman, trainer/assessor from Duke College, dated 19 May 2021, which states that the applicant was dedicated to his studies, motivated, able to work under pressure and willing to work hard in the context of assessment tasks. It also states that the applicant was consistently willing to go beyond his study requirements by supporting his fellow students and helping them engage in class discussions. The author refers to the applicant as friendly, appreciative, and “thriving for learning”.

    ·Letter from An Nguyen, manager at The Fox Café and the applicant’s manager since April 2020, dated 17 May 2021, which refers to the applicant as honest, hardworking and very well-liked by the team. The author also states that the applicant is dedicated, punctual, capable of handling any situation with thoughtfulness and maturity, and great at leading.

    ·Peer-reviewed article entitled ‘What Works to Reduce Reoffending: A Summary of the Evidence’ by Dr Maria Sapouna et al. The article was published in 2015 in the Crime and Justice journal.

    ·Non-peer reviewed article entitled ‘The Importance of Second Chances in Our Justice System’ by Jeremiah Mosteller of Charles Koch Institute. The Tribunal notes, however, that the background on which the author’s research is based is the U.S prison system.

27. Provided by the applicant to the Tribunal following the hearing were the following:

    ·A text message that appears to congratulate the applicant for making his first donation accompanying what appears to be the front page of a brochure from the Australian Red Cross (Lifeblood).

    ·An interim statement of results for a Certificate IV in Commercial Cookery from Duke College dated 17 May 2021, which shows the applicant has passed 19 units having been marked ‘Competent’.

    ·A letter from Duke College dated 18 May 2021 confirming that on the date of the letter, the applicant was enrolled as a full time student at Duke College in a Certificate IV in Commercial Cookery. The enrolment started on 13 April 2020 and ended on 10 October 2021.

28. In the hearing, the applicant confirmed the indication in his Statutory Declaration that the events recounted in the Police Facts Sheet are true.  The Tribunal put to the applicant pursuant to the procedural requirements of s 359AA of the Act that the information contained in the facts sheet is relevant because it indicates disturbing intentional sexualised physical contact with a minor together with stalking and intimidating behaviour. The consequence of relying on this information could be for the Tribunal to draw an adverse inferences as to the applicant’s criminal behaviour that would be considered in favour of the Tribunal exercising its discretion to cancel the visa.

29. The Tribunal noted to the applicant that it would take, in response to these issues, information in the Statutory Declaration provided by the applicant to the Department as explaining or exculpatory factors. The Tribunal would additionally take into account written submissions made on behalf of the applicant that this was a one-off event. The applicant was given the opportunity to respond further with oral comments, or, instead, to respond later in writing.

30. The applicant elected to respond in writing. A response was provided as follows from the applicant’s migration agent:

    We would like to thank you for providing us with an opportunity to submit further comment on our client’s history of one-off criminal offence. Mr Neupane has instructed us to provide the Tribunal the following information:

    1.     He has been a sincere student throughout his life and intends to complete the course he was enrolled in Australia. He is willing to learn more and achieve his dreams. He has explained about it during the tribunal hearing as well.

    2.     He was a regular student until his visa was cancelled (a letter from his college and interim transcript provided).

    3.     The letter and the interim transcript attached were issued just a few days before the visa cancellation date.

    4.     He has an unfinalized Bridging Visa E application with the Department of Home Affairs.

    5.     His BVE application, which was lodged on the day his student visa was cancelled, has remained unfinalized although it has been almost seven months. He has remained unlawful during this entire period despite his best efforts to get a Bridging Visa.

    6.     He reiterates that the incident was not a premediated one. He is deeply ashamed of his actions and regrets for what took place on that day. And he also asserts that the incident does not reflect the type of person he is and is committed to becoming a better person.

    7.     He further confirms that he does not have any criminal history in Australia or elsewhere.

    8.     Apart from the legal punishment, the incident has cost him dearly: his relationship with his wife has broken down following the incident.

    9.     We would like to request the tribunal to have a holistic look at the case: Facts such as the incident being a one-off offence, his age, time since the incident happened, his cooperation with the police in the investigation, and good prospects of rehabilitation should be considered.

    10.  If he is not allowed to complete his studies that could have a detrimental impact on his mental and general wellbeing. All the efforts and expenses so far will go wasted.

    11.  He has also told us that he has started participating in blood donation program and intends to continue to do so in the future.

    We submit that the tribunal should consider all these circumstances and take a holistic approach.

    We therefore request the tribunal to set aside the decision under review and substitute a decision not to cancel the review applicant’s subclass 500 visa.

1. The applicant’s migration agent in the hearing made oral submissions reinforcing the assertions that this was a one-off event, that the applicant was young and that he had not committed prior or subsequent offences.

2. The Tribunal separately asked the applicant in the hearing if there were exculpatory factors beyond it being a one-off event and his age that were extenuating in terms of the factual matrix leading to the charges. In response, the applicant indicated no other matters.

3. The applicant has admitted to the factual circumstances leading to be convictions. The applicant has indicated shame and remorse for the behaviour. These are matters which are given some weight in the applicant’s favour. The Tribunal also acknowledges the relative youth and potential immaturity of the applicant at the time of the offences. The evidence suggests that the applicant has fulfilled the requirements of his sentence.

4. Nevertheless, the factual elements leading to the convictions demonstrate antisocial, and sexually intimidating and threatening behaviour by the applicant, not only towards the victim, a minor, but also directed towards other individuals on the train.

5. The matrix of the factual events leading to the convictions is taken as significantly adverse to the applicant in the exercise of its discretion as to whether to cancel the visa.

6. Other than the applicant’s age and the offence being a one-off event and not premeditated, there are no other extenuating factors beyond the applicant’s control that are set out as seeking to explain the conduct. Whilst the Tribunal makes some allowances for age, it maintains a significantly adverse view of the applicant’s conduct which is not explained by any other extenuating factors beyond his control.

7. In terms of the applicant’s purpose in coming to Australia, it is submitted on his behalf that he came to Australia to study, initially an English course, followed by a Certificate IV in Commercial Cookery, followed by a Diploma of Hospitality Management.  In terms of the progressions of his study, the submission dated 9 December 2021 indicates that the applicant has completed a course in General English and had almost finished a Certificate IV in Commercial Cookery when his visa was cancelled on 27 May 2021. Although the applicant has applied for a bridging visa, this application has not been decided, and the applicant does not hold a visa. The applicant was scheduled to progress to a Diploma of Hospitality Management.  It is submitted that the applicant has been putting in constant effort to achieve academic excellence.

8. In the hearing the applicant indicated that he completed one and a half years of the Certificate IV in Commercial Cookery and has approximately five months of study required to complete this course, before he intends to undertake the Diploma of Hospitality Management, which he will utilise in relation to his intended career in Nepal.

9. The Tribunal accepts that the applicant has made satisfactory progress in his study in Australia during the period that he has been able to study, and this is a discretionary factor in his favour. The Tribunal also accepts a genuine intention of future study in Australia.

10. In terms of compelling reasons to remain in Australia and hardship to the applicant if the visa remains cancelled, it is indicated in written submissions on the applicant’s behalf that cancellation will diminish the applicant’s prospects, causing him to be unable to become qualified and start sharing his skills, knowledge and expertise with society. This will adversely affect the applicant’s financial capacity and ability to support himself and his elderly parents in the future. It will add to his emotional hardship as he is struggling to maintain a good relationship with his wife in the aftermath of the incident.

11. It is submitted that the applicant has an uphill battle to regain his confidence and contribute positively to society. Evidence is referred to of the importance of giving convicted people a second chance. This includes allowing them to gain employment, which has been proven to reduce the potential for reoffending.

12. Not cancelling the visa will contribute towards the applicant’s rehabilitation and support his commitment to becoming a better person.

13. In the hearing both the applicant and his migration agent reiterated these points. The applicant referred to his parents investing significant resources in his study, including mortgaging property for the purpose. The applicant referred to having responsibility for his brother, whose prospects will be inhibited if the applicant is not able to complete study in Australia. The applicant referred to having suffered financial and mental issues.

14. The Tribunal accepts not insignificant hardship to the applicant if the visa remains cancelled, particularly not being able to continue to remain in Australia for the purpose of study, including in terms of limiting career prospects in Nepal, a waste of resources expended on the study in Australia, and some peripheral negative affect on the applicant’s family in Nepal.

15. Hardship is also referred to in the written submission to the Department provided on behalf of the applicant given the claimed dire situation in relation to COVID-19 in Nepal. It is indicated that it would be inhumane to require the applicant to leave Australia in the circumstances. This submission was made on 21 May 2021.

16. COVID-19 is a worldwide phenomenon affecting all countries, including Australia. Whist the Tribunal accepts that the situation in Nepal may be more severe there than in Australia, the applicant will have had the opportunity in Australia to have been vaccinated. The existence of COVID-19 is not given significant weight in the applicant’s favour in terms of the Tribunal’s decision whether or not to cancel the visa.

17. The applicant was asked if he had any comment on these matters in the hearing and he indicated that he did not.

18. Hardship to the applicant in Nepal as a result of the COVID-19 pandemic is not a significant discretionary factor considered by the Tribunal.

19. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of not being able to apply for many other categories of Australian visas onshore.

20. It is submitted on behalf of the applicant that the punishment that the applicant has already received serves all purposes set out in legislation. It is submitted that the applicant has already been adequately punished for the offence and cancelling the visa is a disproportionate hardship. The Tribunal accepts that if the visa remains cancelled, that is an additional hardship suffered by the applicant as a result of the offence.

21. There is no evidence that the applicant has not abided by other visa conditions. There is no evidence that the applicant has behaved in an adverse way towards the Department.

22. In terms of international obligations, it is claimed that cancellation of the visa would prevent the applicant from pursuing his education, which breaches human rights obligations under the International Covenant on Economic, Social and Cultural Rights, which stipulates that everyone has the right to an education. The Tribunal is not satisfied that this treaty grants an international right to be educated at a tertiary level in a third country. The applicant will be able to continue education in Nepal if he wishes. The Tribunal does not accept that Australia would breach international obligations if the applicant is unable to continue his education here.

23. This was discussed with the applicant in the hearing. The applicant did not directly address the point. He indicated that if the visa remains cancelled he will be limited in his education prospects compared to others. While the Tribunal accepts this, the Tribunal does not accept that international obligations are breached by the inability of the applicant to continue tertiary education in Australia.

24. The applicant indicated in the hearing that he does not face serious or significant harm upon return to Nepal that would enliven Australia’s non-refoulment obligations.

25. No evidence has been provided that the interests of any children in Australia are affected by the cancellation or that there is any person attached to the applicant’s visa who would be affected by its cancellation.

26. In the applicant’s favour in terms of deciding whether the visa should be cancelled, the Tribunal takes into account references on behalf of the applicant attesting to his good character and positive work and study activity.

27. The Tribunal weighs discretionary factors. Significantly adverse to the applicant are the convictions and the factual circumstances leading to them, demonstrating highly inappropriate conduct on behalf of the applicant. The Tribunal makes some allowances for this being a single event, the applicant’s young age at the time of the offences and the admission by the applicant of the inappropriate conduct and the remorse that he expresses. The Tribunal accepts in the applicant’s favour that he has studied appropriately in Australia and that it would be a not insignificant hardship to himself and his family if he is not able to complete his initially intended study in Australia, and a waste of resources.

28. The Tribunal accepts that the applicant has been given a criminal sentence for the convictions, which he has served. The Tribunal accepts that there is a significant compounding penalty to the applicant if the visa remains cancelled.  However, the Tribunal does not consider that this weighs against cancelling the visa because the applicant has been in Australia with the privilege of being able to live and study here on a student visa and therefore has particular obligations to abide by Australian law, which he has not done.

29. While the Tribunal accepts that the circumstances leading to the convictions comprise a single event, and acknowledges the applicant’s youth, it finds that the significantly inappropriate and antisocial conduct of the applicant is not overcome, in terms of the Tribunal not exercising its discretion to cancel the visa, by what the Tribunal accepts is the not insignificant hardship to him and his family if the visa remains cancelled, together with his positive study history in Australia.

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

    DECISION

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

    David McCulloch
    Member