Prabhat (Migration)

[2019] AATA 2981

Prabhat (Migration) [2019] AATA 2981 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabhat

CASE NUMBER:  1708819

HOME AFFAIRS REFERENCE(S):          BCC2017/199424

MEMBER:Justin Owen

DATE:15 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 May 2019 at 2:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – convicted of criminal offences – breach of Apprehended Violence Order – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359A

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 April 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).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of a number of criminal offences and, after considering all the available information, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. 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 23 October 2018 the Tribunal contacted the applicant’s representative of Parish Patience Immigration Lawyers requesting a copy of the delegate’s decision record.  The applicant’s representative declined to provide the Tribunal with a copy of the decision record.  The Tribunal subsequently wrote to the applicant through his representative on 27 February 2019 under s359A of the Act inviting him to comment on or respond to information which it considered would, subject to his comments or response, be the reason or part of the reason, for affirming the decision under review (T1, Folio.27-28). 

4. The particulars of the information included the delegate’s decision record of 11 April 2017 which stated the applicant was convicted on 8 December 2016 by Burwood Local Court of the offences: Stalk intimidate fear physical etc. harm (domestic) – T2 and contravene prohibition/restriction in AVO; and that the applicant had acknowledged that he had committed offences of a serious nature.

5. The particulars also included the Police Facts Sheet of 1 November 2016.   The Fact Sheet pertained to events leading to the laying of charges of assault against the applicant.  The Tribunal in its correspondence noted that, as recorded in the Police Facts Sheet, it stated that the applicant had known shown no remorse for assaulting the victim – his wife - and due to cultural upbringing believe that the behaviour shown is justified. A range of other matters pertaining to the assault and the applicant’s allegedly violent behaviour outlined in the Police Fact Sheet were put to the applicant. 

6. Furthermore, the particulars included the PRISMS record of 25 February 2019 relating to the applicant’s past and current enrolment.  

7. The Tribunal pointed out in its correspondence that the above information was relevant because it indicated that there were grounds for cancelling his visa under s116(1)(g) and r.2.43(1)(oa). The Tribunal stated that if it found that it was satisfied that the grounds for cancelling the visa outweigh the reasons not to cancel the visa, the Tribunal would affirm the decision to cancel his TU500 Student visa. The Tribunal wrote that the information in its s359A correspondence was also relevant to the Tribunal’s consideration of the exercise of its discretion whether the visa should be cancelled. The Tribunal pointed out that the consequence of this information being relied upon was that the Tribunal may find the grounds have been made out to cancel his visa. The Tribunal stated that if it found that it was satisfied that the grounds for cancelling the visa outweigh the reasons not to cancel the visa, the consequence would be the Tribunal would affirm the decision to cancel his TU500 Student visa.

8. The applicant was invited to give comments or respond to the information by 13 March 2019.

9. On 27 February 2019 the Tribunal also invited the applicant to attend a hearing to give evidence and present arguments at a hearing scheduled for 14 March 2019. 

10. On 6 March 2019 the applicant’s representative wrote to the Tribunal stating he had received instructions from the applicant that he required a further 14 day extension from 13 March 2019 to provide a response to the Tribunal to its s359A letter of 27 February 2019. (T1, Folio. 38)  The Tribunal notes that no reasons were provided for the request for an extension and furthermore notes that the applicant had applied for review almost two years ago in April 2017. 

11. On 6 March 2019 the applicant’s representative wrote to the Tribunal stating that he would be away on business and would not return to Sydney until 19 March 2019 (T1, Folio.40).  He asked that the hearing scheduled for 14 March 2019 be adjourned until a date after his return.

12. On 8 March 2019 the Tribunal wrote back to the applicant’s representative stating that the hearing would proceed as scheduled on 14 March 2019. The Tribunal stated that it would consider the request for further time to respond to the Tribunal’s invitation to comment at the hearing on 14 March 2019.     The Tribunal notes the President’s Direction which states relevantly: 5.2 Requests for adjournment of a scheduled hearing will not be granted simply on the basis of the convenience of the review applicant or their representative. Where the AAT has given sufficient advance notice of the hearing, adjournments will not be granted on the basis of a need to gather further evidence unless cogent reasons can be shown. The Tribunal noted that the applicant had not provided any reasons as to why he required further time to respond to the Tribunal’s invitation to comment or respond.  The Tribunal noted the applicant had applied for review of his visa cancellation almost two years ago and had, in its opinion, adequate time to prepare for the review.  The Tribunal notes that the applicant’s legal representatives are the same firm as those he sought advice from over two years ago when he received the NOICC from the Department of Home Affairs concerning his potential visa cancellation.  The applicant at the hearing confirmed that when he received the Decision Record cancelling his visa, his legal representatives at Parish Patience explained the decision to him and how he could apply for review to the Tribunal.  The Tribunal considered the applicant had been provided already with a significant amount of time to prepare for his case.  In relation to his desire for representation, the Tribunal was of the opinion that the applicant was able to procure himself the advice and representation of another qualified representative from the same firm Parish Patience – a firm with extensive experience in this field – and the same firm he had utilised for advice since receiving the notice of intention to cancel his visa over two years ago.  

13. On 12 March 2019 the applicant’s representative wrote to the Tribunal (T1, Folio.45-46) raising the issue of procedural fairness.  The applicant’s representative wrote that he would be back at the office on 20 March 2019, would then be attending a conference in Canberra on 22 and 23 March 2019 and was requesting a rescheduled hearing from anytime from 25 March 2019. 

14. On 13 March 2019 the Tribunal responded to the applicant’s representative stating it would be proceeding with the scheduled hearing on 14 March 2019.  On that same day the applicant confirmed that Mr Robert Liu, a Director of Parish Patience would be appearing at the hearing as the applicant’s representative. 

15. On 13 March 2019 the applicant also responded to the s359A letter (T1, Folio.52-53) confirming that he had been convicted at the Burwood Local Court.  In regards to the Police Fact Sheet he said the facts were only part of the situation and there were other facts he wished to share at the hearing.  In relation to his PRISMS record he stated he had been continuing his studies and completing his classes.  He wrote of his regret as to what had occurred and stated he wished to lead a better life.  At the Tribunal hearing on 14 March 2019 the Tribunal acknowledged the applicant’s written response and informed the applicant that it would grant him a further two-weeks from the date of the hearing for the submission of any further arguments or documentation he wished to provide.  At the hearing the applicant’s representative Mr Lui said the applicant would need further time to respond to the issues in regards to the Police Fact Sheet.  The Tribunal acknowledged the request and stated that if the applicant and his representative subsequently found that they were having any issues in meeting the two-week period granted for further submissions and needed more time, then to let the Tribunal know.  Two months have elapsed since the hearing and the Tribunal has not received any further submissions pertaining to the Police Facts Sheet.       

16. The applicant appeared before the Tribunal on 14 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife Ms Priyanka Manhas.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  Mr Robert Liu of Parish Patience Immigration Lawyers attended the hearing as his representative. 

17. 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

18. 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?

19. 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(oa) is relevant.

20. As put by the Tribunal to the applicant under s359A on 27 February 2019, the Tribunal notes from the decision record that the applicant was convicted of the offences Stalk intimidate intend fear physical harm (domestic) – T2; and contravene prohibition/restriction in AVO on 8 December 2016.

21. The Tribunal furthermore notes the applicant’s written response of 13 March 2019 to the Tribunal where he concedes he was convicted of these offences at the Burwood Local Court (T1, Folio.52).  The Tribunal furthermore notes the applicant has provided the NSW Local Court Advice of Court Result of 8 December 2016 before Magistrate Seagrave stating that the applicant was convicted of these two offences of stalk/intimidate intend fear physical etc harm (domestic) – T2 and contravene prohibition/restriction in AVO (Domestic) (T1, Folio.54-56).  At the hearing the applicant confirmed in oral evidence he was convicted of these offences.  

22. For these 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

23. 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’.

24. The Tribunal has considered the circumstances in which the ground for cancellation arose.

25. The ground for cancellation arose out of the applicant’s conviction of criminal charges of stalk/intimidate fear physical harm (domestic) T2 and contravening an Apprehended Violence Order.  Those charges relate to the applicant’s wife.  The applicant explained to the Tribunal how the circumstances in which the ground for cancellation arose and these specific criminal charges came about.  He said he was convicted of the stalk/intimidate intend fear and contravention of an AVO charges out of a situation that occurred whilst at the Local Court with his wife.  The applicant was attending the Local Court in response to criminal charges that had been laid against him of assault occasioning actual bodily harm and common assault relating to his wife from three days earlier.  An AVO had been taken out against the applicant in relation to his wife after the charges of assault occasioning actual bodily harm and common assault were laid.   The applicant said however that when he went to Court his wife did not wish the Police to proceed with the assault charges.  The applicant said he personally had little understanding as to what he needed to do at Court and had been scared.   He said that whilst at Court he was speaking Punjabi to his wife loudly about his legal issues and was essentially becoming frustrated.  The applicant said he raised his voice with his wife and this was noticed by the Police Prosecutor.  The applicant said the Police then took his wife away for questioning.  The applicant said that he and his wife didn’t understand the details of an Apprehended Violence Order and what he could and could not do.  In oral evidence he pointed out that the AVO still had allowed them to talk on the telephone which they had continued to do between the laying of charges for assault and when he was arrested for breaching the AVO.  The applicant said that when the Magistrate adjourned his case in relation to the assault charges and he was leaving the Local Court, he was again arrested by the NSW Police and was subsequently charged with stalk/intimidation and contravening the Apprehended Violence Order on the basis of his argument with his wife at the Local Court.

26. The applicant said that he ultimately pleaded guilty (at a later date) and was convicted of the assault occasioning actual bodily harm and the common assault charges in relation to his wife.  He says however he pleaded not guilty to the charges that were laid due to his behaviour at the Local Court (the ground for the cancellation) but was nevertheless convicted.  The applicant essentially argues those charges which were the basis of the grounds for the cancellation of his visa came about due to a misunderstanding by the Police as to his behaviour towards his wife whilst at Court.  He states that whilst he was at Court that day in response to two assault charges, his wife – the victim of the assault – was attending Court advocating the charges be dropped.  A misunderstanding by the applicant concerning the restrictions pertaining to the AVO (put in place after the assault charges were laid) and his behaviour at Court led to the criminal charges of stalk/intimidate and contravening the AVO: the grounds for the cancellation of the visa.   

27. The applicant said he had never dealt with the Police whatsoever until these criminal charges.  The applicant said that after he was convicted of the stalk/intimidate and contravene AVO charges part of his sentence was that he had to accept and report to the Community Corrections Service for supervision as part of his Good Behaviour Bond.  He pointed out this requirement was terminated early  (six months into a two year period) by the Department of Justice (T1, Folio.51).  He also stated that he successfully completed the Behavioural Change Program called Facing Up in 2017 which he had been directed to attend as part of his conviction for these charges.

28. The applicant said that he was unable to obtain bail after the charges of stalk/intimidate and contravening the AVO were laid and remanded in custody for around four weeks at Silverwater and Parklea Gaols until his conviction in relation to the stalk/intimidate and breach of the AVO charges.  He said he was very scared whilst incarcerated.  He said he did courses whilst in gaol.  The applicant said that his wife was very scared for him.         

29. Whilst the circumstances in which the grounds for cancellation arose were the applicant’s charges and subsequent conviction of the two charges of stalk/intimidate and contravening an AVO, the applicant talked about the incident that led to he and his wife actually being in Court on that day: namely the two assault charges from October 2016.  The Tribunal notes that these assault charges were not the specific grounds for the cancellation of the applicant’s visa.  The applicant explained the background of these assault charges that resulted in his and his wife’s attendance at Court that day. He said that he and his wife had an argument.  He said the act of violence he committed against his wife that led to the assault charges then occurred.  The applicant said he drove his wife to the hospital and waited whilst she was being treated for injuries as a result of the assault.  The applicant said his wife had left at 6am from the hospital and told him that the staff had been telling her to report the incident.  The applicant claims his wife told him that the incident was 50% her fault and 50% the applicant’s.  The applicant says she told him not to this again.  The applicant said he apologised to her and wasn’t sure why he had committed the act. 

30. The applicant said a few days later after he and his wife went out for the day and were shopping in Parramatta and Ashfield.  He said that after he and his wife got home they got into an argument whilst sitting in the car over family issues.  The applicant said he held his wife’s hand and pushed her.  The applicant said a neighbour saw this and reported the incident to the Police.  The applicant said that things were fine between him and his wife and they were back inside their apartment when the Police arrived.  The applicant said that one of the individuals with the Police spoke to his wife separately.  The applicant said he was then conveyed by the Police to make a statement to the Police about the claims of domestic violence.  The applicant complained there was no interpreter. 

31. The applicant claims that the lack of an interpreter had a deleterious impact upon him with the Police and led to fundamental misunderstandings as to his communication with his wife and with the authorities.   

32. The applicant said that his lack of legal knowledge impacted adversely upon him and his ability to respond to the charges.  He said he didn’t at the time know what legal aid was.  He said he didn’t even know what a conviction was.  The applicant said his wife hired a lawyer for him whilst he was remanded in custody on the breaching AVO and stalk/intimidate charges.  He said he acknowledged he had made a mistake and slapped his wife.  He said he was essentially happy to admit all this to the Magistrate.   

33. The applicant said that he was not receiving any medical or psychological treatment for his anger issues prior to facing criminal charges.   He did complete an anger management course as part of his sentencing.

34. The Tribunal asked the applicant about the troubles he had had with the retail chain Seven-Eleven.  The applicant was significantly underpaid by Seven-Eleven over three years despite being sponsored by them for his previous visa.  Legal action subsequently led to a payment of almost $150,000 to the applicant as part of a class action.  The Tribunal sympathises with the applicant over the appalling corporate behaviour of Seven-Eleven and recognises the important and valuable work the applicant undertook in holding the relevant parties at Seven-Eleven to account.  The Tribunal accepts the applicant’s argument that Seven-Eleven’s behaviour and their demands upon him caused a significant amount of stress for himself.  The Tribunal accepts this stress may have had a detrimental impact upon the applicant’s relationship with his wife and contributed to the behaviour that led to the cancellation of his Student visa.  The Tribunal does not however consider that this situation in any way represents a legitimate excuse or explanation for the commitment of acts of violence that result in charges and convictions for stalk/intimidate and breaching an AVO.

1. The Tribunal has considered the applicant’s arguments concerning the lack of an interpreter when the Police came to his residence and the possibility of a misunderstanding of what had occurred between the applicant and Ms Manhas.  The Tribunal found both the applicant and Ms Manhas’s use of spoken English to be excellent.  The Tribunal found them both easy to understand and very articulate.  The Tribunal found the parties to have little trouble following its own questions.  The Punjabi interpreter at the hearing for the most part was not utilised by the parties.  The Tribunal is not convinced that either the Police or the applicant and Ms Manhas would have faced any particular oral communication challenge.  The Tribunal has taken into account the reasonable likelihood that the applicant and Ms Manhas’s fluency in English has improved in the period between the time of his arrest in 2016 and the time of decision, yet is not convinced at that time either party faced any significant oral communication challenge.  There is furthermore no record or evidence that the applicant or Ms Manhas requested an interpreter at the time.          

2. The applicant’s wife Ms Manhas in her own oral evidence was very supportive of the applicant. She agreed with much of his testimony.  Ms Manhas said that she was unaware that the Police would actually charge the applicant with assault and disputed she had articulated some of the things she was alleged to have said.  Ms Manhas said the applicant’s conviction was in fact ‘our’ conviction and she too was suffering from it.  Ms Manhas said that she never in fact wanted the Apprehended Violence Order to be imposed on the applicant. 

3. The Tribunal has considered the circumstances in which the ground for cancellation arose carefully.  The Tribunal notes that the applicant, whilst pleading not guilty, has been convicted of the charges which were the grounds for his cancellation being stalk\intimidate intend fear physical etc harm and for being in contravention of an Apprehended Violence Order.    The applicant has claimed that the arrest, charging and conviction for stalk/intimidate and contravening the AVO came about due to his misunderstanding of the law and what he could and could not do and say to Ms Manhas.  Importantly in the matter pertaining to the cancellation of the applicant’s visa, the applicant admits that he did approach Ms Manhas and speak to her loudly at the Local Court whilst the AVO was in place.  The applicant has said that his lack of professional legal advice and language issues meant that he was unaware of the potential consequences. The Tribunal notes the applicant’s claim but is not satisfied on the evidence before it that the applicant was unaware that the AVO that had been put in place just days earlier precluded him from approaching his wife Ms Manhas at the Court and speaking to her in a loud, agitated manner.  

4. The applicant spent some time discussing his lack of legal knowledge and inability to understand legal and court process.   The Tribunal accepts that the applicant may have had limited knowledge in these areas.  The Tribunal does not however accept that the applicant was unaware of the consequences of breaching a recently imposed Apprehended Violence Order after he was charged with two counts of common assault.  

5. The Tribunal accepts that the applicant was in all likelihood stressed by his charges of common assault when he attended Court the day he was subsequently charged with the two offences that were the grounds for the cancellation of his visa.  The Tribunal accepts that the regrettable situation with Seven-Eleven was difficult for him.  The Tribunal does not however concede that these represent extenuating circumstances.    The applicant was aware of the seriousness of his common assault charges when he went to Court and at that stage he was not living with Ms Manhas: suggesting to the Tribunal he was at least aware of the restrictions concerning his physical proximity as a result of the AVO.  The applicant nevertheless was in the physical proximity of Ms Manhas at the Court and the manner of his behaviour towards her concerned the authorities enough for them to intervene and remove Ms Manhas from the applicant’s presence.  The Tribunal notes the applicant’s claim that the authorities misinterpreted his manner and style of speaking but gives this little claim little weight.  The Tribunal notes the evidence of the applicant’s behaviour at the Court towards his wife Ms Manhas sustained a finding that the applicant was guilty of stalk/intimidate and contravention of an AVO despite his not guilty plea. 

6. The Tribunal notes the claims Ms Manhas made in oral evidence that she never wanted an AVO to be imposed and essentially never intended for the applicant to be charged with assault. Nevertheless the Tribunal recognises the fact that the applicant has been convicted of two serious charges which were the grounds for the cancellation of his visa: including contravening an AVO – which the applicant himself conceded in oral testimony was a very serious offence.  The Tribunal does not consider the various issues the applicant has raised to justify his behaviour and explain the charges that were laid mitigate the seriousness of the offences.  The applicant ignored the specific restrictions just recently imposed on him via an Apprehended Violence Order (imposed after the laying of two assault charges) and engaged in loud and potentially aggressive behaviour towards Ms Manhas at Court to the point where the authorities intervened and removed Ms Manhas from the applicant’s presence. These charges and convictions are regrettable and illustrate a disregard by the applicant for both his wife Ms Manhas and the laws of the Commonwealth of Australia.  The Tribunal does not accept a lack of knowledge of the law or language precipitated a misunderstanding on the part of the applicant as to what his legal obligations were after being charged with two serious assault charges and being informed of the imposition of an AVO just a short time earlier.  The Tribunal has considered the circumstances in which the grounds for cancellation arose and weighs this factor in favour of cancelling the applicant’s visa.        

7. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia. After previously holding a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa, the applicant was granted his subclass 500 Student visa on 9 September 2016. 

8. Post-hearing the applicant provided the Tribunal with information pertaining to his studies (T1, Folio.71-80).  Canterbury Business College confirmed the applicant was enrolled in a Diploma of Business between 10 October 2016 and 8 October 2017 as well as an Advanced Diploma of Business between 9 October 2017 and its completion date of 7 April 2019.  Statements of attainment for the Advanced Diploma as well as receipts from various payments of tuition fees were provided.  The Tribunal is satisfied the applicant has remained enrolled, paid his tuition fees and has undertaken study whilst holding a Student visa.  The Tribunal notes Canterbury Business College in its correspondence of 22 March 2019 stated the applicant will finish his studies with them on the 7 April 2019.  There is no evidence before the Tribunal or claim made that the applicant has currently enrolled in any future course of study.  The Tribunal accepts the applicant’s purpose for his travel and stay in Australia was for study and education purposes. The Tribunal weights this consideration against cancelling the applicant’s visa. 

9. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  There is no evidence before the Tribunal that the applicant has not – notwithstanding his criminal convictions – complied with his visa conditions.  The Tribunal weights this factor neither in favour nor against cancelling the applicant’s visa. 

10. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his visa be cancelled.

11. In relation to his family, the applicant said it would bring shame to his family.  The applicant’s parents and siblings all reside in India.  He said they had been extremely upset by his charges and convictions.   The applicant said he had tried everything possible to rectify things after his conviction including paying all his fines and completing the anger management course from his sentencing. The applicant said his parents would be very upset.  He said they were already upset with him because of his marriage to Ms Manhas. 

12. The Tribunal enquired as to hardship it might impose on his wife of three years Ms Manhas.  The applicant said that she would have to look after herself.  The Tribunal asked if she would travel offshore with him should he have to depart.  The applicant said Ms Manhas would want to travel with him but he didn’t think it was a good idea for her to go back given his own family’s feelings towards Ms Manhas.  He said his family blamed Ms Manhas for his current predicament. 

13. The Tribunal noted the applicant’s previous claims that he and Ms Manhas were trying to have a baby.  The Tribunal notes that the impending baby was a significant factor in the submissions of the applicant to the Department to not cancel his Student visa.  The applicant said at the hearing that he and Ms Manhas did not proceed with having a child given they were both studying and the problems emanating out of the visa cancellation.  Financial hardship was put forward as a reason for not proceeding with starting their family.   The applicant said he and Ms Manhas would try and start a family again if he were successful with his review application. 

14. The applicant said Ms Manhas had finished her studies and was on a temporary visa until 2021.  He said she was now working at FedEx.   The applicant said he has lived with his wife Ms Manhas and her sister in Campsie.  Ms Manhas pays the rent for the property.   His only other family member in Australia is an uncle.  

15. The Tribunal accepts that cancellation of the applicant’s visa would cause his wife Ms Manhas hardship.  Ms Manhas has illustrated a commendable degree of loyalty and commitment to remain with the applicant during the whole process.  She clearly has a strong degree of commitment to her marriage and to the applicant.  The Tribunal deplores victim blaming and was disappointed to learn of the attitude of the applicant’s family towards Ms Manhas as a result of the applicant’s criminal conviction.  Ms Manhas has already lost a child and both she and the applicant appear keen to once again try for a child.  Ms Manhas continues to support the applicant today, paying the rent at their residence and supporting him in his endeavours. 

16. The Tribunal has taken into account Ms Manhas’ written submission to the Department (D1, Folio.154-155) in support of the applicant’s NOICC response in February 2017.  The Tribunal notes that some of the hardship factors she raised ie completing her Masters are no longer relevant but accepts her general submission that the applicant provides her with care and support.  The Tribunal has also taken into account the applicant’s claims in his original NOICC response (D1, Folio.D1, Folio.146-150) and its impact upon Ms Manhas and his statement that if he were to leave Australia, Ms Manhas would face hardship as she does not have family in Australia and he is the only family she has in Australia.  The Tribunal notes that today Ms Manhas lives with her sister as well as the applicant.  The Tribunal accepts that Ms Manhas would prefer the applicant to remain in Australia but notes she is not alone in relation to immediate family members.      

17. The Tribunal does not however consider any hardship beyond genuine disappointment would be the outcome for the applicant’s parents and siblings should the applicant’s visa be cancelled.  The Tribunal accepts that his parents and family may feel some disappointment at the cancellation of the applicant’s Student visa.  That is understandable.  The Tribunal also notes that the only other family member claimed by the applicant in Australia is an uncle.  The hardship imposed upon Ms Manhas aside, the Tribunal does not consider cancellation would cause his family any significant degree of hardship. 

18. The Tribunal has considered any financial hardship the applicant’s wife Ms Manhas may suffer from the cancellation of the applicant’s visa.  The Tribunal notes that Ms Manhas has completed her studies and now working regular hours at Fed Ex.  She is paying the rent for the property where the applicant also lives.  Whilst losing the financial resources of the applicant is not ideal, on the evidence Ms Manhas is the principal wage earner in the household and the Tribunal considers the financial hardship to be caused by losing the applicant’s income to be limited.  

19. In terms of the hardship imposed upon the applicant himself, the Tribunal accepts that he would suffer hardship in leaving his wife Ms Manhas in Australia.  Nevertheless the Tribunal notes Ms Manhas can travel offshore with the applicant if both parties see fit to do so. The Tribunal furthermore notes that Ms Manhas is neither an Australian citizen nor permanent resident and, as the applicant stated to the Tribunal, is in Australia on a temporary visa which expires in 2021. 

20. The Tribunal notes the previous attempt the applicant and Ms Manhas had with having a child.  The applicant stated he would they would try again if he were successful with his review.  The Tribunal notes however that both the applicant and Ms Manhas are in Australia on temporary visas: for the purposes of education and employment respectively.  Both were scheduled to return to India at the expiry of their respective visas.  The Tribunal notes that there is nothing precluding the applicant and Ms Manhas from attempting to have children and start a family in India.  The Tribunal recognises the poor relationship the applicant claims Ms Manhas has with his immediate family in India, but ultimately considers the hardship to be caused by the applicant’s return to India in relation to this matter to be limited.               

21. The Tribunal has considered any hardship that may impact upon the applicant’s study.  The Tribunal notes however that the applicant was due to complete his studies and his Advanced Diploma of Business last month in April (T1, Folio.79).  There is no evidence or claim made of any future enrolment that has been undertaken by the applicant.   The Tribunal accepts that cancellation may impact adversely upon the applicant’s desire to study in the future in Australia if he still wishes. The Tribunal notes that the applicant retains the opportunity to study either in India or he can apply elsewhere offshore.  The Tribunal considers the hardship on this matter to be limited.

22. The Tribunal has considered any financial hardship that may be imposed on the applicant.  The Tribunal found the applicant to be an industrious, articulate and on the evidence hard-working individual with a good degree of commercial acumen.  He was, notwithstanding Seven-Eleven’s terrible behaviour, able to successfully help operate and run a business.  The Tribunal does not consider the applicant will be unable or incapable of securing adequate paid employment should he return to India. 

23. The Tribunal has placed some positive weight on the applicant’s claims to have changed his life since his criminal convictions.  Certainly there is no evidence of any other convictions or anti-social behaviour the last couple of years.  He has undertaken his anger management course and successfully completed his good behaviour bond without issue.  He paid a considerable price for his behaviour including a month incarcerated at Parklea Gaol.   His wife Ms Manhas – the victim of his previous criminal behaviour – has attested to these changes and the Tribunal sees no reason on the evidence before it not to accept her claims.  The Tribunal does however note that its review pertains to the cancellation of a Student visa.  It is a temporary visa for the purposes of studying.  The applicant is due to have completed his studies.  It is neither a Partner or Family visa.  Should the applicant and Ms Manhas wish to remain together there are other options they are able to consider.

24. The Tribunal is loath to see Ms Manhas essentially ‘punished’ for the criminal actions of the applicant.  The Tribunal accepts that she loves the applicant and wishes to remain in a relationship with him.   The Tribunal accepts on the evidence that she will suffer some emotional hardship should the applicant’s visa be cancelled.  The Tribunal nevertheless notes that Ms Manhas, whose employment visa is due to expire in 2021, can return to India with the applicant if that is the desire of both parties. 

25. The Tribunal has had regard for a wide range of supporting correspondence from the applicant’s friends to the Department and to the Tribunal attesting to the character of the applicant and outlining their concerns as to the impact the cancellation of the applicant’s visa will have both upon the applicant and Ms Manhas (D1, Folio.260-262; T1, Folio.63-69).    

26. The Tribunal has considered the various issues and matters that have been submitted by the applicant concerning the hardship that would be caused by the cancellation of his visa.  The Tribunal weighs this factor slightly against cancelling the visa. 

27. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The applicant at the hearing said he has had no dealings with the Department since the cancellation of his visa.  There is no evidence the applicant has been uncooperative with the Department in any of his previous dealings.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

28. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. There is no information before the Tribunal which indicates that any other person currently holds a visa because the applicant held his Student visa. The applicant agreed in oral evidence to the Tribunal that no one holds a visa because of his 500 student visa. There is no evidence or claim made of dependents. Therefore any cancellation of the applicant’s visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

29. The Tribunal has considered whether there are any mandatory legal consequences to a decision to cancel the applicant’s Student visa, such as detention and removal from Australia.  The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to a s.48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant may be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.  The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it concerning any mandatory legal consequences from a decision to cancel his Student visa, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

30. The Tribunal has considered whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, which would be breached as a result of the cancellation of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor concerning the breach of any international obligations as a result of the cancellation of the applicant’s visa neither in favour nor against cancelling the visa.   

1. The Tribunal has considered other relevant matters in the exercise of its discretion.  The Tribunal has noted that the applicant conceded at the hearing that he had pleaded guilty and been convicted of two assault charges.  At the hearing the applicant handed up to the Tribunal an Advice of Court Result dated 13 February 2017 which stated the applicant has also convicted of two charges: Assault occasioning actual bodily harm (DV)-T2 and Common assault (DV)-T2 (T1, Folio.57-58).  As the Tribunal has previously noted, it was as a result of these charges that the applicant and his wife were at Court where the charges were subsequently laid for contravening an AVO and stalk/intimidate that were the actual grounds for the cancellation of the applicant’s visa.  The applicant’s explanation to the Tribunal of the events leading up to the laying by the Police of charges of assault are discussed in paragraphs 29-30 of this decision record.      

2. The Tribunal, having raised the Police Fact Sheet pertaining to the assault charges with the applicant in writing under s359A previously, discussed the Fact Sheet with the applicant. The applicant claimed the alleged forty separate incidents of assault in the Fact Sheet related to verbal assault and verbal abuse between him and his wife.  His wife agreed with this claim.  He claimed that physical assault only occurred once.  The applicant admitted that he did smash and destroy some of his wife’s possessions such as her TV, laptop computer and telephone.  He said he did so because he was angry and he purchased replacement items at full cost for his wife the next day.  He said that today there was no longer any problems with his wife.  He said he and his wife Ms Manhas argue sometimes but the relationship was good.  The applicant confirmed that he was fined for the two assault convictions with a conviction recorded.  The applicant said he felt remorse and domestic violence should never happen.  He said that the last two years living with his wife had been good.  He said his anger management courses had helped him ensure he wouldn’t lose his temper and there were no repeat acts of violence since that time. 

3. The Tribunal notes the applicant’s claims pertaining to the lack of an interpreter and his lack of legal knowledge.  He has claimed that this has led to a range of misunderstandings that ultimately resulted in his criminal charges, including those pertaining to assault.  As the Tribunal has discussed in paragraphs 35, 37-38, the Tribunal is not satisfied that any claimed deficiency in these areas meant that the applicant was unaware of the seriousness of his behaviour, his legal obligations and the possible consequences of his behaviour towards his wife.         

4. The Tribunal takes a particularly dim view of physical violence in all forms.  Domestic violence is an insidious and sadly all too common manifestation of this violence in Australian society.  The Tribunal notes that the applicant has pleaded guilty and been convicted of a serious charge in common assault and assault occasioning actual bodily harm.  The Tribunal notes from his testimony to the Tribunal that he does not deny assaulting his wife.  The assault convictions resulted in Ms Manhas requiring hospital treatment.  The applicant has argued that there were extenuating circumstances that led to the assault and has claimed physical violence happened just the one time. The Tribunal recognises the support the applicant’s version of events enjoys from Ms Manhas and has taken into account the stress the applicant was under from his employment and financial challenges due to the appalling behaviour of Seven-Eleven.  The Tribunal also notes the support the applicant has from Ms Manhas today and her assertion the applicant has committed no further physical violence since the convictions and recognises his successful completion of an educational course in anger management.  The Tribunal does however note that all parties concede that the applicant did ultimately assault and commit an act of physical violence against Ms Manhas.  On the evidence before it the Tribunal weighs this matter in favour of cancelling the visa. 

5. The Tribunal is satisfied that the grounds for cancelling the applicant’s visa exist due to the applicant’s convictions for breaching an Apprehended Violence Order and for stalk/intimidate.  The Tribunal has noted the applicant’s other convictions for assault is a relevant matter to the exercise of the Tribunal’s discretion whether to cancel the applicant’s visa.   The Tribunal has taken the applicant’s circumstances into account and has weighted up each of the considerations.  The Tribunal has determined on the basis of the information before it that the visa should be cancelled. 

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Justin Owen
   Senior Member