Parbat Singh (Migration)

Parbat Singh (Migration) [2021] AATA 2209 (15 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Parbat Singh
CASE NUMBER:  2012516
HOME AFFAIRS REFERENCE(S):          BCC2020/1388737
MEMBER:Antoinette Younes
DATE:15 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 15 June 2021 at 4:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal convictions and sentence – intensive correction order – discretion to cancel visa – secondary visa holder now divorced from primary visa holder – limited hardship if cancellation affirmed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), 359AA
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 5 August 2020 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 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of an offence in NSW. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 June 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
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 that 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) is relevant.
Section 116 provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(g) a prescribed ground for cancelling a visa applies to the holder.
Regulation 2.43(1)(oa) provides:

(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder 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));

During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.
The information indicates that the Department received information that on 25 September 2019 at the Burwood Local Court, the applicant was convicted of the offence of common assault (DV) for which he received a sentence of Community Correction Order for 12 months commencing on 25 September 2019 and concluding on 24 September 2020. He was also sentenced to report within seven days, supervision for 12 months commencing on 25 September 2019 and concluding on 24 September 2020, and supervision by Community Corrections Service. The applicant agreed with the accuracy of this information.
In accordance with s.359AA, the Tribunal advised the applicant that there is information before the Tribunal that the relationship with his partner would not be reconciled and that there are more serious pending charges relating to sexual offences listed for appearance on 30 November 2020. The Tribunal advised the applicant that there is also a New South Wales Police FACTS SHEET of 6 May 2020 referring to the circumstances that led to the charges including allegations of the applicant slapping the victim across the cheek area for talking back to him, accusations by the applicant of unfaithfulness of his wife, the applicant biting the his wife, sexual and physical assault, the applicant’s admission during an electronic interview recording that the applicant had placed his hands on the victim’s neck to “shut her up” but denied all allegations of sexual assault. The Tribunal advised the applicant that this information is relevant because it indicates that he is not in a married relationship and that he has been convicted of serious offences. The applicant advised the Tribunal that the marriage to his wife has ended and that they are now divorced.
The applicant gave evidence that on 19 March 2021 he was convicted following a plea of guilty of the offence of Assault with Act of Indecency. He showed the Tribunal a document on his mobile telephone confirming the conviction for which he received a sentence of 1 year and 8 months commencing on 19 March 2021 and ending on 18 November 2022, with other conditions. The Tribunal requested a copy of that document. He stated that he is complying with the Court’s orders. Subsequent to the hearing, the applicant provided to the Tribunal a copy of the Court’s sentence confirming the applicant’s evidence that he was sentenced to a term of imprisonment of 1 year and 8 months commencing on 19 March 2021 and ending on 18 November 2022, to be served by way of Intensive Correction, as well as conditions and obligations. He said he is discussing with his lawyer a potential appeal. The Tribunal explained to the applicant that the Tribunal must accept the convictions as evidence of guilt.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) & RESPONSE
On 27 May 2020, the Department sent to the applicant a NOITCC based on the first conviction which means that s.116(1)(g) is enlivened. On 2 July 2020, the applicant responded to the NOITCC by way of a Statutory Declaration dated 2 July 2020, as follows:
·He arrived in Australia with his wife in August 2018 and that they have been married for four years. Subsequent to their arrival in Australia, they had several conflicts. They were facing financial difficulties and had difficulties finding employment. He did get casual work, but it was tiring, and the remuneration was too low. He had a suspicion that his wife had an affair. All of this caused him mental stress.
·On or around 12 September 2018, he and his wife were sitting at home and he noticed his wife chatting with someone over the telephone. He asked her about this, and she rudely told him to mind his own business. When he raised his concerns, his wife did not deny his suspicions. He had “a momentary lapse of judgement and end up pushing her away”. He felt guilty and apologised to his wife subsequently. A few days later. He was contacted by the police for an interrogation during which he admitted that he pushed his wife, but he was surprised that his wife had alleged that he pushed her from the throat and sexually assaulted her. He was charged with the offences of Common Assault and Sexual Assault. He appeared in Burwood local Court for the charge of common assault and he admitted the charges but “denied the facts”. Subsequently the police amended the Statement of Facts by removing the allegation that he held his wife by the throat. He apologised to the Court for pushing his wife. He has pleaded not guilty to the charges of sexual assault and the matter is set for hearing on 30 November 2020.
·He has never shown any aggression towards anyone including his wife. He is a calm person and a law-abiding citizen. The act of pushing his wife was an error of judgement and he is committed not to repeat any such behaviour. Currently, he is working at a car wash to pay off legal fees for defending the charges of sexual assault. He is also of the view that there is a fair chance of reconciliation with his wife. Their families in India have expressed concerns about the incidents and he believes that he and his wife would return to live in together once the charges are dismissed. He has also received a text message from his wife apologising for the charges he is facing. He believes that her complaint to the police was done in anger. He is not living with his wife due to the ADVO whereby he is not allowed to have contact with his wife go near her.
·In case of cancellation of his visa, he and his wife would not have a chance of reconciliation. His visa expires in March 2021 and he is confident that the charges would be finalised within 2020. He is committed to following Australian laws and undertakes to uphold and obey Australian values and societal norms.
The applicant provided references noting, amongst other things, the applicant’s dedication to his family, great integrity, peace-loving, kindness, politeness, and nonviolent personality.
The Tribunal has noted the applicant’s evidence and explanations. It is not the role of this Tribunal to question the processes of the criminal Courts and the Tribunal must accept that the applicant has been convicted and sentenced, as outlined above.
There is no dispute that the applicant has been convicted of offences against laws in NSW. Therefore s.116(1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by r. 2.43(1)(oa).
For those 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
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’.
·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 arrived in Australia in July 2018 as the holder of a student visa (subclass 500). He accompanied his wife who is the primary visa holder. The applicant and his wife are now divorced.
Although the applicant’s intention to travel to Australia was to accompany his spouse, they are now divorced, and the Tribunal is satisfied that the applicant has no compelling need to remain in Australia.
The Tribunal gives significant weight to this consideration in favour of cancellation.
·the extent of compliance with visa conditions
There is no evidence of non-compliance with any visa condition(s).
The Tribunal is of the view that compliance with visa conditions is a legitimate expectation and as such, the Tribunal gives neutral weight to this consideration.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that his parents and sister are in India and that he has no relatives in Australia. Unlike his response to the NOITCC, he is not suggesting now that there is a chance of reconciliation with his former spouse.
The applicant has been in Australia since July 2018 and the Tribunal does not consider that period to be significant or indicative of close connections or relationships.
The Tribunal acknowledges that the cancellation of the applicant’s visa has the potential to cause the applicant who is now 27 years of age hardship including psychological, financial, and emotional.
The Tribunal has carefully considered the degree of hardship and in the circumstances, the Tribunal gives limited weight to this consideration in the applicant’s favour.
·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
The circumstances in which the cancellation arose were as a result of the applicant being convicted of an offence that involves assault (domestic violence) and now assault with Act of Indecency. The Tribunal has given regard to the references provided by the applicant. However, the applicant has been convicted of offences which the Tribunal considers to be serious. The victim is the applicant’s former spouse.
The Tribunal has noted the applicant’s explanations however, the Court’s findings are that the applicant has committed the offences and he was sentenced accordingly.
It is also noteworthy that as the applicant’s marriage has ended, this could also be another ground for cancellation.
It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…
On the evidence, the Tribunal is satisfied that the applicant’s behaviour was not beyond his control. The Tribunal must accept the Court’s findings and conclusions.
The Tribunal gives this consideration significant weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The applicant responded to the matters raised in the NOITCC.
The Tribunal gives this aspect weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
There is no evidence of consequential cancellation under s.140.
The Tribunal gives this consideration neutral weight.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s.48 of the Act which means that he could face difficulties in applying for any further visas in Australia. He will also be subject to Public Interest Criterion (PIC) 4013.
The Tribunal considers potential detention, removal from Australia, the impacts of s. 48 and PIC 4013 bar to be intended legislative consequences.
The Tribunal gives this aspect neutral weight.
·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
On the evidence, the Tribunal is satisfied that in case of cancellation, there would not be breach of any of Australia’s international obligations, including non-refoulement.
The Tribunal gives this aspect neutral weight.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The student visa (subclass 500) is not a permanent visa.
·any other relevant matters
There are no other matters requiring consideration.
CONCLUDING REMARKS
The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal takes the opportunity to express its concerns about the conduct of the applicant that involved violence against his former spouse.
The Tribunal is satisfied that the balance of the evidence weighs in favour of cancellation. The Tribunal is satisfied that those considerations favourable to cancellation outweigh those in favour of the applicant.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Antoinette Younes
Senior Member

[2021] AATA 2209

15 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction