Niroula (Migration)

[2018] AATA 5658

Niroula (Migration) [2018] AATA 5658 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Padam Niroula

CASE NUMBER:  1712731

HOME AFFAIRS REFERENCE(S):           BCC2017/1266532  

MEMBER:Mr S Norman

DATE:3 December 2018 

PLACE OF DECISION:  Sydney

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

Statement made on 03 December 2018 at 1:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the health, safety or good order of the Australian community – applicant charged with serious offences – indecent assault – presumption of innocence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 189, 198, 362
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013

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 15 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(e) of the Act on the basis 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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 12 October 2018 (dispatched by email to the authorised recipient), the Tribunal sent the applicant a hearing invitation letter advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing at 10.30am on 3 December 2018. By his agent’s email of 12 October 2018,[1] the applicant responded to the hearing invitation letter. His agent said the applicant would attend the hearing[2] (there were no named witnesses[3]). Though asked, and though he had completed the ‘Response to hearing invitation’ form, the agent did not advise whether they would attend the hearing. Two SMS (hearing reminder) texts were sent to the applicant’s claimed mobile phone shortly prior to the scheduled hearing (26/11/2018 & 30/11/2018).

   [1] Tribunal – folio 34.

   [2] Tribunal – folio 32.

   [3] Tribunal – folio 32 (reverse side).

4. The applicant did not appear before the Tribunal on the day and at the time and place at which his hearing was scheduled. Neither did the Tribunal receive any further advice at the time and date of this decision, from either the applicant or his agent. After then considering all the facts and circumstances of the case (discussed herein), and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

5. 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

6. 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) of the Act. 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?

7. 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].

8. 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.

9. The applicant was granted a Higher Education Student visa on 16 January 2016. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 8 May 2017, the applicant was advised the NSW Police had informed the Department that on 2 April 2017 he was charged with the following offences:

   ·     Common assault

   ·     Assault with an act of indecency

   ·     Commit act of indecency with person 16 years or over

   ·     Use carriage service to manage/harass/offend.

10. As noted by the delegate in their decision, the NSW Police also provided a Fact Sheet detailing the nature and specifics of the offences the (now 33 year old) applicant had been charged with - including indecent assault of a 61 year old woman.[4] The name of the victim was provided. The NOICC letter then advised that given the nature of the charges it appeared his presence in Australia may pose a risk to the safety of an individual. It was then advised that his visa may be cancelled pursuant to s.116(1)(e)(ii) of the Act.

    [4] Department – folio 16.

11. The applicant provided responses by his migration agent. It was claimed the applicant pled not guilty and the matter was listed in the Parramatta Local court on 19 July 2017; and bail was to be continued.[5] Also advised was that the applicant had initially been convicted in his absence (on or around 26 April 2017[6]) but that had subsequently been quashed and the matter listed for 19 July 2017.[7] The applicant had explained that he was not aware of the first court date. The applicant also believed he was ‘innocent until proven guilty’; and that grounds did not exist to cancel his visa. However, on 15 June 2017 the delegate cancelled the applicant’s Student Visa.

    [5] Department – folio 88.

    [6] Department – folio 16.

    [7] Department – folio 22.

12. That being said, based on the evidence before it and set out above, the Tribunal is satisfied the applicant’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.

13. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) of the Act 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

14. 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’.

15. The applicant travelled to and entered Australia on a Student visa granted 16 January 2016 (as a secondary applicant). There is no evidence to suggest the applicant’s original intention in travelling to and residing in Australia was not for proper purposes.

16. The Tribunal notes the applicant has been charged with various offences. The Tribunal believes these breaches are significant.

17. In his response to the NOICC letter, the applicant did not provide material claims about hardship. However, if the applicant’s visa is cancelled he will become an unlawful noncitizen and liable to detention under s.189 and removal under s.198. The Tribunal has no material evidence which has satisfied it the applicant may be subject to indefinite detention. Further, he may temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing.

18. The Tribunal understands the applicant has family members in Australia but no reference was made to any hardship they may suffer should his visa be cancelled.

19. The circumstances in which the ground cancellation of the applicant’s visa arose include that he was charged with various criminal offences.  There is no evidence the applicant has been uncooperative with either the Tribunal or the Department. The Tribunal has no material evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

20. The Tribunal has no evidence that any other person’s visa would be impacted if the applicant’s visa is cancelled. As did the delegate, the Tribunal notes the applicant is a dependent visa holder. There is no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

21. Next, the Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation.  These are standard legal consequences.

22. However, and after considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Mr S Norman
    Member