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

1. 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).

2. 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.

3. 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.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Section 375A Certificate

6. 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

7. 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

8. 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].

9. 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

10. 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).

11. In the submissions dated 7 May 2021, the representative contended that:

    ·The applicant denies the allegations and has pleaded not guilty.  The applicant must be presumed to be innocent unless proven otherwise. 

    ·Cancelling the applicant’s visa would result in further punishment of the applicant.  Article 14 (2) of the International Covenant on Civil and Political Rights (ICCPR) is relevant in that the applicant is to be presumed innocent. 

    ·The applicant’s visa should not be cancelled on the allegations or charge and he should not be ‘punished’ until and if those allegations are substantiated. The applicant strongly denies any wrongdoing and he believes he will get justice.

12. In the Statutory Declaration, Ms R Pandey stated she has also been employed as a personal care assistant in the same aged care facility where her husband worked until 28 February 2020, when the allegations were made. She stated she discussed the incident with the applicant and she believes that the allegations are untrue.

13. The applicant does not dispute that he has been charged with the above offences.  The applicant gave evidence that he has pleaded not guilty and that the matter is listed for trial in December 2021.  The Tribunal explained to the applicant that the Tribunal considers the charges to be serious, potentially involving breach of trust and care for a vulnerable elderly person.

14. In relation to any action taken by the Health Care Complaints Commission (Commission), the applicant advised the Tribunal that the Commission is conducting an investigation into the alleged incident and that the investigation is pending.  He stated that in the meantime, the Commission has imposed temporary conditions, which have been extended.

15. The question is whether the ground for cancellation exists, as contemplated by s 116(1)(e), in this case. The applicant has contended that he does not pose a risk. The Tribunal notes that the Act does not qualify or quantify the risk as being real, or significant, or substantial. Prior to enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), the provision stated that the presence of the visa holder in Australia “is or would be a risk to the health, safety or good order of the Australian community”.  The legislative intent is summarised at [13] of Schedule 2 to the Explanatory Memorandum as follows:

    The purpose of this amendment is firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader Australian public.  Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.

16. Section 116(1)(e) has been the subject of considerable judicial consideration. In Gong v Minister for Immigration and Border Protection[1], Judge Smith held that while the provision did not require there to be any solid or certain foundation before the cancellation power can arise, the decision to cancel had to be based on legally reasonable inferences: at [41]. In Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2], the Court observed that the concept of “risk” has an element of futurity to it and that reliance on past offending alone may not be sufficient to justify cancellation of the visa. 

    [1] Gong v Minister for Immigration and Border Protection[1] [2016] FCCA 561.

    [2] Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 5 August 2020.

17. The Department’s procedural guidelines concerning visa cancellation under s 116(1)(e) refer to the term ‘risk’, among other things, as being by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.

18. The applicant claimed that he has not previously been charged or convicted of any offences, that he has been law abiding, that he is innocent and will get justice. He indicated that he was granted bail and therefore the courts did not consider him to be a risk to the Australian community. The Tribunal refers to the Departmental Procedural Instructions Manual noting that a person may still pose a risk if the person has been charged with criminal offences and has been granted bail. Moreover, the grant of bail and the visa cancellation scheme are under different legislative provisions requiring different considerations. The Tribunal accepts that the applicant has no prior charges or convictions, however he has been charged with serious offences. The Tribunal respects and acknowledges the importance of the doctrine of the presumption of innocence and accepts that the applicant is entitled to that presumption. This needs to be considered in the context of s 116(1)(e), which does not require a conviction, unlike other provisions of the Act, such as s 116(1)(g). The Tribunal need not quantify the degree of risk and the legislature had intended “…to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm”. 

19. The applicant has provided character references and his wife gave evidence in support.  She expressed the view that she believes that he is innocent.  As explained to the applicant, the Tribunal is not determining guilt or innocence as that is a matter for the courts.  The Tribunal accepts that the applicant is perceived by those individuals to be of good character and the Tribunal has given that evidence weight in the applicant’s favour.  The Tribunal has considered the submissions very carefully and the evidence in totality. The Tribunal considers the charges of Sexual intercourse without consent and Sexually touch another person without consent to be serious, potentially involving a vulnerable elderly person and the applicant who was a carer, that is, in a position of trust to care and to act in the best interest of those in his care. Weighing up the evidence, and although authorities such as the Commission have taken relevant action against the applicant including not permitting him to work in specified facilities, on balance and given the seriousness of the charges, the Tribunal finds that s 116(1)(e) is enlivened and that the presence of the applicant in Australia may be or might be a risk to a segment of the Australian community including elderly women.

20. 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

21. 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

22. 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.

23. The applicant has a pending criminal matter.

24. 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.

25. The Tribunal gives this aspect weight in favour of the applicant. 

    ·     The extent of compliance with visa conditions

26. 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.

27. The Tribunal gives this aspect neutral weight.

    ·     Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

28. 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.   

29. 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.

30. 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.

31. Both the applicant and Ms Pandey expressed their high degree of stress and concerns about their situation, including the criminal matter and the cancellation process.  The Tribunal acknowledges that these are challenging times for both the applicant and Ms Pandey, who considers her husband to be a person of high moral character.

32. In submissions, it was contended that although Ms Pandey would still have her valid bridging visa and could be granted the Subclass 485 visa, the visa cancellation does not serve any purpose since the applicant must remain in Australia until the criminal case is finalised.  The Tribunal does not find this argument to be persuasive and arguably ignores the importance of the cancellation scheme and its purposes, including maintaining public confidence in the migration program.

33. The Tribunal accepts that the applicant wants to remain in Australia with his spouse who is supporting him financially, emotionally, and psychologically.  The Tribunal acknowledges that the applicant and his spouse could suffer financial, emotional, and psychological hardship due to the cancellation.  The Tribunal acknowledges that it is in Ms Pandey’s interest that the applicant’s visa is not cancelled.  It is in her interest mentally, physically, and psychologically.   The Tribunal is satisfied that the cancellation of the applicant’s visa would have adverse impacts on both Ms Pandey and the applicant who could face financial, emotional, psychological, and social hardships. 

34. The Tribunal gives this aspect 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

35. The circumstances in which the cancellation arose were as a result of the applicant being charged with offences under NSW laws.  The Tribunal has noted that the applicant has pleaded not guilty.  It is not open to the Tribunal to make findings or comments in relation to the charges which are pending before the Court.  However, on the evidence, the Tribunal is not satisfied that the circumstances that gave rise to the cancellation were beyond the applicant’s control.

36. The applicant has contended that he is a good person who has no prior convictions.  He provided character references in support.  The Tribunal has given weight to that material.  However, and as outlined above, the Tribunal takes the view that the charges of Sexual intercourse without consent and Sexually touch another person without consent are serious, potentially involving a vulnerable elderly person and the applicant who was a carer, that is, in a position of trust to care and to act in the best interest of those under his care.

37. The Tribunal gives this consideration significant weight in favour of cancellation.

    ·     Past and present behaviour of the visa holder towards the Department

38. The applicant responded to the NOICC.

39. The Tribunal gives this consideration weight in favour of the applicant.

    ·     Whether there would be consequential cancellations under s 140

40. There is no evidence of consequential cancellation under s 140.

41. The Tribunal gives this consideration weight in favour of cancellation.

    ·     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

42. The cancellation of the applicant’s visa could result in the applicant’s detention and removal from Australia.  The applicant could also be impacted by s 48 of the Act and PIC 4013, which means that he may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.

43. However, as Ms Pandey has a pending application for a Temporary Skilled visa, which includes the applicant as a secondary applicant, he could be eligible to apply for a Bridging E Visa to remain lawfully in Australia and to await an outcome of the application.  Moreover, the applicant is expected to await the outcome of the criminal matter, and he may therefore be restricted from departing Australia.

1. The Tribunal considers potential detention as well as the s 48 bar and PIC 4013 to be intended legislative consequences. 

2. 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.

3. The applicant has contended that the International Covenant on Civil and Political Rights (ICCPR) is relevant and that cancelling the visa would not be in the spirit of the ICCPR, particularly in relation to the presumption of innocence and interference with the family.  The Tribunal has dealt with the argument relating to the presumption of innocence and the hardship that potentially faces the applicant’s family.

4. This consideration relates to whether there would be a breach of Australia’s international obligations.  The Tribunal is satisfied that on the available material, cancellation of the applicant’s visa would not result in a breach of Australia’s international obligations.

5. The Tribunal gives this aspect weight in favour of cancellation.

   ·     If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

6. The Bridging A visa is not a permanent visa.  Under other considerations, the Tribunal has given weight in favour of the applicant because he has a spouse in Australia.

7. The Tribunal gives significant weight in favour of cancellation to the fact that the Bridging A visa is not a permanent visa.

   ·     Any other relevant matters

8. There are no other matters requiring consideration.

   Concluding remarks

9. The Tribunal has carefully considered the material before it individually and cumulatively. 

10. There are limited aspects in the applicant’s favour, essentially relating to his own circumstances. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation. The applicant has been charged with offences that potentially involve a vulnerable person. The Tribunal respects and gives regard to the doctrine of the presumption of innocence, however, the threshold in cancellation under s 116(1)(e ) is designed by the legislature to capture charges and there need not be a conviction for that section to be enlivened.

11. The Tribunal considers that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.

12. 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

13. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Antoinette Younes

    
    Senior Member