Poudel (Migration) - [2021] AATA 5057

Poudel (Migration) [2021] AATA 5057 (22 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Prayash Poudel
CASE NUMBER:  2106894
HOME AFFAIRS REFERENCE(S):          BCC2021/817748
MEMBER:Antoinette Younes
DATE:22 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 22 November 2021 at 11:00 AM
CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with wife’s application for graduate visa – risk to community or individual – criminal charges – discretion to cancel visa – plea of not guilty and trial pending – wife’s support and work plans if her visa granted – possible financial hardship, migration detention and application bar – possible eligibility for bridging E visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)
CASES
Gong v MIBP [2016] FCCA 561
Leota v MICMSMA [2020] FCA 1120

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant has been charged with offences 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 20 October 2021 and 4 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner.
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.
Section 375A Certificate
The Tribunal discussed with the applicant the existence of a s 375A Certificate relating to documents in the Departmental file on the basis that the release of the information contained in those documents may “disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods”. The Tribunal advised the applicant that the documents essentially relate to internal communications and that the Tribunal considered the Certificate to be valid. When invited to respond or make submissions, the applicant did not.
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)(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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Poudel (Migration)

Details

AGLC: Poudel (Migration) [2021] AATA 5057
Case: [2021] AATA 5057
Decision Date: 22 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr Poudel, who sought review of the Minister's decision to cancel his Bridging A (Class WA) visa. The dispute arose from criminal charges laid against Mr Poudel, which the Minister considered a ground for visa cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) due to a risk to the Australian community or individuals.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) was made out, and if so, whether the discretion to cancel the visa should be exercised in Mr Poudel's circumstances. The Tribunal was required to determine if Mr Poudel's presence in Australia posed a risk to the health, safety, or good order of the Australian community or an individual, and then to weigh various factors in deciding whether to cancel his visa.

The Tribunal found that the ground for cancellation was established, noting that the power to cancel a visa under section 116(1)(e) can arise on the possibility of past events. Mr Poudel had been charged with sexual offences allegedly committed while working as a carer, which caused significant psychological trauma to the victim. In exercising its discretion, the Tribunal considered Mr Poudel's purpose for being in Australia, which was to accompany his wife, Ms Pandey, who was studying and had applied for a Graduate visa. The Tribunal gave weight to Ms Pandey's desire to gain work experience in Australia and her unconditional support for Mr Poudel. It also noted Mr Poudel's compliance with his visa conditions and the significant financial hardship, including legal costs, that the couple had already incurred. Despite these considerations, the Tribunal concluded that the seriousness of the charges and the potential impact on the victim outweighed the factors favouring Mr Poudel.

Consequently, the Tribunal affirmed the decision to cancel Mr Poudel's Bridging A visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal discussed with the applicant the existence of a s 375A Certificate relating to documents in the Departmental file on the basis that the release of the information contained in those documents may “disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods”. The Tribunal advised the applicant that the documents essentially relate to internal communications and that the Tribunal considered the Certificate to be valid. When invited to respond or make submissions, the applicant did not. 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)(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?Section 116(1)(e) - risk to Australian community or individual 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]. 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 delegate’s decision record indicates that on 26 October 2020, the applicant was charged with the offences of “Sexual intercourse without consent on 28 February 2020 Section 61i of the Crimes Act 1900, Sexually touch another person without consent Tier 2 on 28 February 2020 Section 61kc(A) of the Crimes Act 1900”. The charges relate to allegations that on 28 February 2020, whilst employed as a carer in an aged care facility, the applicant allegedly sexually assaulted an elderly female resident whilst he was assisting her with showering. It is alleged that the victim was aware of the nature of these offences, and that subsequently the offending conduct caused the victim significant psychological trauma.NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) AND RESPONSE In April 2021, the Department sent to the applicant a NOICC, to which he responded on 7 May 2021. In support, the applicant provided submissions, a court listing notice for hearing at the District Court of NSW on 28 May 2021, Statutory Declaration from the applicant’s spouse, Ms Rakshya Pandey, and character reference letters from Nira Shrestha, Racy Shrestha and Rupleen Tyata (work colleagues).

Decision

Reasons for decision

The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

For those 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 There are no matters specified in the Act or Migration Regulations 1994 (Cth) 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 came to Australia as a secondary applicant on the Subclass 500 visa granted to his wife, Ms Rakshya Pandey, who came to Australia to study. Ms Pandey has completed a Master of Technology (Software Engineering) degree. She has applied for a Subclass 485 visa and has included the applicant as a secondary applicant. That application is still pending. Ms Pandey gave evidence that she would like to gain relevant work experience in Australia prior to returning with the applicant to Nepal, their home country. The applicant has a pending criminal matter. The Tribunal is satisfied that the applicant’s travel and stay in Australia are consistent with the visa he was granted. The Tribunal gives weight to Ms Pandey’s intention and plans to gain relevant work experience to improve her career and employment opportunities. She has a compelling need to remain in Australia and consequently so does the applicant. They are a married couple who have been together for about 7 years. Ms Pandey gave evidence of her unconditional support for the applicant. The Tribunal gives this aspect weight in favour of the applicant. · The extent of compliance with visa conditions There is no evidence of breach of any visa condition. The Tribunal is of the view that compliance with visa conditions is a legitimate and lawful expectation. The Tribunal gives this aspect neutral weight.· Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant has been married to Ms Pandey for about 7 years. Ms Pandey came to Australia to study and she has achieved that academic goal. She would like to gain work experience to assist with her career goals. The evidence before the Tribunal is Ms Pandey is essentially supporting the family financially and that the couple has spent about $40,000 in legal costs to defend the charges. The applicant has been working as a strata cleaner but the family is facing financial difficulties due to the legal costs involved. In case of cancellation, it is likely that he would not be permitted to work and would probably need to seek assistance from Legal Aid, assuming he would be entitled for that assistance. The Tribunal appreciates that there is a degree of choice in defending the charges, but the charges are serious and could have significant impacts on their lives, especially if the applicant is convicted. The Tribunal appreciates their decision in that context. The couple has not asked their family for financial assistance as they want to cover the costs. The couple’s parents do not know of the charges as they are over 60 and they do not wish to cause them stress. When the applicant’s passport expires, he would need a valid visa to enable renewal so cancellation would impact the applicant’s ability to renew his passport.