Pandey (Migration)

Pandey (Migration) [2019] AATA 4689 (28 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sanij Raj Pandey
CASE NUMBER:  1836578
HOME AFFAIRS REFERENCE(S):           BCC2018/4083266
MEMBER:Rachel Westaway
DATE:28 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 October 2019 at 10:14am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – convicted of an offence – Community Corrections Order – consideration of discretion – strong academic results – mental health issues – seriousness of the conviction – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that they were satisfied that a prescribed ground for cancelling the visa applied to the holder. In this instance, the prescribed ground in Migration Regulation 2.43(1)(oa) is that the Minister is satisfied that the holder has been convicted of an offence against the 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)). On 16 July 2018, the applicant was charged with aggravated burglary, stalk another person, intentionally damage property, theft and without authority/excuse enter a private place. On 8 August 2018 the applicant was convicted of the charges[1] and he was given a Community Corrections Order. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
[1]
The applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rex William Ogden, the applicant’s Landlord for the last three years.
The applicant was represented in relation to the review by his registered migration agent.
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)(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?
s.116(1)(g) - prescribed ground
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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) requires the decision maker to consider whether the Minister is satisfied that the holder has been convicted of an offence against the 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)). is relevant.
In his response to the Notice of Intention to Consider Cancelling, the applicant acknowledged he had committed offences of a serious nature[2]. He claimed he did this under the influence of alcohol. He confirmed he was given a Community Corrections Order.
[2] Department File BCC2018/4083266 f:
In his dealings with the Tribunal both in writing[3] and orally at hearing, the applicant did not dispute the charges and conviction.
[3] Tribunal file f:34
Given the applicant has not disputed the charges and conviction, 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.
The applicant supplied the following material to the Department and to the Tribunal and they have been considered in relations to the Tribunal’s discretion.
Department File
·     Response to the NOICC outlining the applicant’s community work and treatment and rehabilitation and his family’s situation and the earthquake
·     Kent Institute academic transcripts
·     University of the Sunshine Coast academic records and letter regarding academic excellence.
·     La Trobe Community Health letter outlining he applicant’s DASS results, counselling sessions and mental health situation
·     Confirmation from the applicant’s doctor that he was prescribed Effexor for depression and anxiety.
·     Mental health assessment
·     Community Corrections Order
Tribunal File
·     The applicant provided a copy of the delegate’s decision
·     A certificate of Enrolment for Kent Institute from 11 March 2019 to 8 November 2019
·     A bridging visa E grant notice
·     A letter from the applicant’s doctor dated 26 February 2019 detailing the applicant’s mental state and the pressures he told his doctor he is under to complete his studies and that he is a ‘transformed’ person
·     A reference from a colleague of the applicant stating he is a person of integrity
·     A letter from Tylife confirming the applicant has been playing tennis for 6 months and his general positive disposition and commitment
·     A copy of the applicant’s student card
·     A letter from the applicant’s friend Sumit Thapa who confirms that the applicant was in his view a good student who suffered from mental health issues and has now better and learning from his mistakes
·     A letter from the owner of a café called Eastern Bloc who is friends with the applicant and who stated that he made an error but is getting his life back on track and he supports him in having his visa reinstated. This was also accompanied by a statutory declaration
·     A submission addressing the issues also covered in the hearing. The applicant confirmed his conviction and Community Corrections order, explained he had depression and otherwise is law abiding. He explained he only has a few more subjects to complete and is a dedicated student and the incident was a one off. He states that his family have invested in him and if he cannot finish his studies it will be catastrophic. He outlined the measures he has taken to improve
·     A letter from the applicant’s brother pleading with the Tribunal to reconsider the applicant’s situation and outlining the negative impact a cancelled visa will have on him
·     A letter from the applicant’s mother outlining the negative affect on his future the cancelled visa wold have and requesting consideration be given to the applicant
·     A copy of the relationship certificate outlining the applicant’s family
·     A summary email from the applicant’s representative dated 5 March 2019 reiterating the reasons they have put forward for not cancelling the visa
Consideration of Discretion
the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant is 24 years of age and came to Australia in January 2016 on a student visa to study a Bachelor degree in Accounting. He enrolled at Kent Institute and has completed 18 out 24 subjects. He has 6 subjects remaining and his academic results have been very strong receiving. He has received high distinctions and distinctions. He claims he has never failed any units. He claims to have enjoyed studying and completed high school in Kathmandu, Nepal.
He stated he chose Australia because the course was more practical and he thinks the interaction with teachers and assignments is better than in Nepal.
The applicant supplied numerous references from friends confirming he is a committed student and academic transcripts indicating his strong results. The Tribunal accepts that the applicant has shown his intention to study and provided a COE for the remainder of his units.
The Tribunal accepts that the applicant came to Australia to study for the reasons he has outlined and this is the intended purpose of the visa. The Tribunal accepts that the applicant has completed the majority of his studies and has achieved strong results and has 6 units remaining which he genuinely intends to complete if allowed. The Tribunal gives this significant weight in the applicant’s favour.
the extent of compliance with visa conditions
There is nothing before the Tribunal to indicate the applicant has breached any other conditions on his visa. The applicant has also stated he has never been in trouble with the law before. The applicant has supplied numerous references stating he is a person of good character and this is a one off event. Notwithstanding this, the Tribunal expects that all visa holders adhere to the conditions on their visas and behave in accordance with the country’s laws as such gives this factor no weight.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant stated that his parents invested in his future with their savings and they expect him to come back with a degree. He said that he is expected to return home and help them and establish a start-up business. He claims that his degree will set him up to do this.
He explained that the cancellation of the visa would destroy these aspirations and he explained the emotional pressure and psychological pressure this would cause.
The applicant’s landlord Mr Ogden attended the hearing and explained that the applicant had been living with him for 3 years and he was part of the family and assisted him around the house and in the garden and that cancelling the visa would cause him distress and he would miss the assistance the applicant gives him. He said he and his former wife have all become friends and he has a quiet personality and they have grown together as a family and he treats him as one of his boys.
He explained that he is a diabetic and the applicant is a great help especially when he is sick. Mr Ogden explained that his wife and children left him in 2000. He said that the applicant rarely drinks alcohol and he has known him for 3 years and never had any problems. He said that he has spoken to the applicant’s family on a video and they are a happy couple. He described the applicant as a great person, starting out in life and he didn’t drink much and he just got excited.
Further evidence was provided at hearing which explained that the applicant’s parents hope he can finish university and be a professional accountant. His parents had a factory and the earthquake ruined the business and they now have outstanding debts.
The quality of a Bachelor’s degree completed 100% in Australia would carry more weight than completing the course online or in Nepal. The applicant’s representative explained that Mr Ogden is illiterate and the applicant helps him. The applicant’s older brother lives in Sydney with his wife and they are also on a student visa.
The Tribunal has considered the fact that he applicant’s family have committed a significant amount of money towards his education and that the cancellation will mean the applicant is not able to finish his degree in Australia. It acknowledges the letters of support and concern about the applicant from his family and friends should his visa remain cancelled. Inevitably with a visa cancellation, the visa holder is unlikely to have completed their course. This is the natural consequence of a student visa cancellation and consequently there are the financial implications of paying for a course that was not completed. However, the applicant could undertake these last few units either online or seek credits for a course with another provider online or in Nepal. Whilst this may not be ideal as the applicant has explained, it does not mean that the education to date which the applicant has undertaken is wasted. The Tribunal gives this factor minimal weight in favour of the applicant.
The Tribunal notes the family’s aspirations sit with the applicant, hoping he will have an Australian education which will provide him with better employment and remuneration and assist the applicant in helping his family recover financially from the earthquake. There is nothing preventing the applicant from completing his education online or working in Nepal. Whilst the applicant stated that his course provider does not provide online education, the Tribunal does not accept that the applicant could not find a similar course online with another provider. The Tribunal accepts that a completed degree from Australia may enhance his employment opportunities and that remaining with the same education provider is preferred by the applicant and may increase his earning capacity and make him more marketable on return to Nepal, these considerations do not outweigh the seriousness of the circumstances behind why the visa was cancelled and the Tribunal gives them minimal weight.
The Tribunal accepts that the applicant and his family will face emotional and psychological hardship based on the disappointment the cancellation brings. This does not outweigh the seriousness of the circumstances behind the cancellation and the Tribunal gives this factor minimal weight.
The Tribunal has considered the landlord’s evidence. Whilst the Tribunal appreciates the friendship and the support the applicant has provided his landlord, Mr Ogden, the applicant was on a temporary visa and was never in a position to remain in Australia on the visa he was on. The Tribunal therefore gives this minimal weight in favour of the applicant.
circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
On 16 July 2018, the applicant was charged with aggravated burglary, stalk another person, intentionally damage property, theft and without authority/excuse enter a private place. On 8 August 2018 the applicant was convicted of the charges and he was given a Community Corrections Order. As a result of the charges and conviction the applicant’s visa was cancelled.
The applicant explained that the victim was his Nepalese girlfriend whom he met in Australia. He explained that his family had not met her but he had spoken to his brother about her and wanted to marry her. He said that they had been in a relationship for 6 months and then she said that she no longer wanted to be in the relationship.
The incident happened when he was intoxicated and went to see her. He called her on her mobile and knocked on the door but she did not answer so he broke the window and went inside. He explained that he was intoxicated and he would never have done this normally. He said he had consumed two bottles of wine and it was 11pm.
When he entered the house she was not there. He put her laptop in his bag. He claims to have spoken to her friend whom she lived with and he told her he was happy to pay for the window and was very sorry. He said he took a knife from kitchen and tried to harm himself and he was bleeding. He said the friend asked him to leave the house and he was stressed and he harmed himself and he went outside and waited for police and ambulance.
The applicant explained that he suffered mental health issues after witnessing the attack in Bourke St in Melbourne and was prescribed anti-depressants. He said that when he was in custody he started seeing a psychologist. He said he sees him once a month and is no longer on antidepressants.
The Tribunal accepts that the applicant was new to the country, depressed from witnessing a violent crime and distressed and consequently drunk after his former girlfriend did not speak to him, the Tribunal does not accept that the actions which led to the conviction were outside of the applicant’s control. The actions of the applicant were frightening and intimidating to those involved, unlawful and generally unacceptable to the broader community. Whilst there were circumstance which contributed to the applicant feeling aggrieved, the Tribunal gives these no weight in favour of the applicant.
past and present behaviour of the visa holder towards the department
There is nothing to suggest the applicant has behaved inappropriately in any dealings with the Tribunal or the department. He has been polite and courteous and has responded to all requests for information. The Tribunal expects that this is how all applicants would behave and gives this minimal weight.
whether there would be consequential cancellations under s.140
There are no secondary applicants and as such the Tribunal gives this no weight.
whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the visa is cancelled, the applicant will become a non-lawful citizen and his ability to apply for other visas would be limited. He could be detained until he made arrangement to leave the country.
Public Interest Criterion 4013 may apply and the applicant may not meet the requirement for certain visas for three years.
The Tribunal sees these as natural consequences of the cancellation of a visa and as such assigns no weight to them.
whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant has not raised any concerns about returning to Nepal and the Tribunal is not aware of any international obligations. The applicant has no children. The Tribunal assigns no weight to these factors.
if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties in Australia
This is not applicable to the applicant and as such no weight is attributed to this factor.
any other relevant matters.
The applicant claims to have learnt his lessons and was incarcerated for 15 days and claims he can’t imagine he could ever do this in the future. He pleaded guilty and it was a one off event. He claims that he has been treated by a psychiatrist and completed courses and commenced tennis to be mentally fit and manage his stress and asked the Tribunal to consider that he has already been punished.
He claims that he has spent in excess of $40,000 associated with his studies and to not be able to complete these would be equivalent to a $40,000 fine as it would be a waste. He claims he has already been punished and should not have to face this as well.
His representative asked the Tribunal to consider his compliance documentation and to note that his study restriction was removed and reporting conditions have been removed and his risk of reoffending is considered low. He asked the Tribunal to consider his psychological assessment which states that this supports the fact that he is unlikely to reoffend.
He has stated that he has almost completed his community order which the Tribunal accepts and hopes that this is taken into consideration.
The Tribunal has considered the additional factors put forward by the applicant and his representative. He has appeared cooperative and truthful in all of his dealing with authorities. He has complied with his order and believes that the 15 days he spent incarcerated was a significant punishment. The Tribunal acknowledges he has been committed to completing his community based order and generally working to find strategies to improve his mental health. He has sought treatment for alcohol dependency and these factors are all acknowledge by the Tribunal however these factors do not outweigh the serious conviction. Some weight is given to the applicant pertaining to his honesty and preparedness to acknowledge his failings and work towards improving himself. However his community work and counselling and treatment programmes were all aspects of his community based order. As such, whilst acknowledged by the Tribunal, I give these factors only minimal weight in favour of the applicant.

Considering all of the factors raised by the applicant both individually and cumulatively, the Tribunal assigns only limited weight in favour of not cancelling the visa and places more weight on the seriousness of the conviction.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Rachel Westaway
Senior Member

[2019] AATA 4689

28 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction