Rathod (Migration)

[2019] AATA 1500

Rathod (Migration) [2019] AATA 1500 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gajanand Rathod

CASE NUMBER:  1826812

HOME AFFAIRS REFERENCE(S):           BCC2018/4062122

MEMBER:Mr S Norman

DATE:1 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 February 2019 at 2:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – conviction – ongoing risk to community – still appreciable risk that applicant may engage in further improper behaviour – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 48, 116, 189, 198
Migration Regulations 1994 (Cth), r 2.43, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 September 2018 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 Department delegate’s decision was not lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(g) of the Act on the basis that on 13 September 2017, the applicant had been convicted of assault with act of indecency – T2. 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 25 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Anju PAWAR (the applicant’s wife) and Mr Pawan KUMAR (the applicant’s friend – who had known the applicant for three years and who had resided with him for two years). The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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) of the Act. 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?

6. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) of the Regulations is relevant. That stated:

   (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)); …

7. On 6 July 2017, the applicant was granted a Student (subclass 500) visa (as a dependent). That visa was due to expire on 21 April 2020. However, on 6 August 2018 the Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) of his Student visa.

8. At hearing, the Tribunal then advised that subject to his comments, the following information would be the reason, or part of the reason for affirming the decision under review. The Tribunal also advised the applicant he could request an opportunity to provide further submissions about this information after the hearing (no request was made). The information then put to the applicant for comment, follows:

   In the NOICC, the Department advised it had received information from the NSW Police that the applicant was convicted on 13 September 2017 in the Downing Centre Local Court of the following offence:

   ·     Assault with act of indecency – T2

   The applicant was also advised the Police report indicated the applicant was sentenced to imprisonment for six months; however, the sentence was suspended upon the applicant entering a section 12 bond for a period of six months. Further, that as the applicant had been convicted of an offence against a law of the State of NSW, there appears to be a ground to cancel his visa under s.116(1)(g) of the Act; using the provision in r.2.43(1)((oa) of the Regulations.

9. At hearing, the applicant was then again advised that subject to his comments, this information would be the reason or part of the reason for affirming the decision under review. That was because it appeared to indicate the ground for cancellation under s.116(1)(g) is made out and that his visa may be cancelled.

10. By written migration agent submissions dated 17 January 2019,[1] it was claimed the applicant was remorseful and ashamed of his actions; that his wife is disappointed in him but believes his actions to have been out of character and that they would never be repeated.

    [1] Tribunal – folio 25.

11. When discussed at hearing, the Tribunal understands the applicant did not dispute that on 13 September 2017, he had been convicted in the Downing Centre Local Court of “Assault with act of indecency – T2”.  The Tribunal also notes the assault and his arrest, had taken place on 13 August 2017, being around five weeks after the applicant had been granted his dependent Student visa.

12. After considering the above evidence, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) of the Act, 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

13. 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’.

14. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant’s wife said she travelled to Australia (from India) around January 2017. The wife was the primary Student visa holder and the applicant travelled as a dependent. The Tribunal has no evidence that the applicant travelled to and stayed in Australia, otherwise than for the intended purpose of his visa (a discussion of whether there exists a compelling need for the applicant to travel to or remain in Australia, appears below).

15. Next, the Tribunal has no evidence the applicant has breached any other conditions of his visa.

16. Regarding the degree of hardship that may be caused (financial, psychological, emotional or other) to the applicant or his family if his visa is cancelled, by migration agent submissions of 17 January 2019,[2] it was claimed the applicant was remorseful and ashamed of his actions; his wife is disappointed in him but believes his actions to have been out of character and that they would never be repeated. It was also claimed that his wife needed the applicant’s support to care for their infant child in Australia (though the infant child is presently residing in India), so that she may continue her studies in Australia. It was claimed the applicant and his wife had invested a considerable amount of money in the wife’s education in Australia. When discussed at hearing, the Tribunal understands the applicant explained that he and his wife had borrowed monies in both India and Australia.

    [2] Tribunal – folio 25.

17. The applicant’s wife (the primary visa holder) said she was (initially) studying IT at Charles Sturt University; but now proposed to study a Bachelor of Business (and she had commenced her classes some three days prior to the Tribunal hearing). She also said that without the assistance of her husband (ie to care for her child once the child can travel to Australia), she would not be able to continue to study in Australia.[3] She said this would give rise to a ‘complete waste of the money she had spent so far’ (being AUD$15,000).[4]

    [3] Department – folio 65.

    [4] Department – folio 65.

18. When discussed at hearing, it was said the delegate had (words to the effect) misinterpreted the fact of the applicant and his wife being separated (in 2018) as an indication that they did not intend to live together. At hearing, it was then explained the applicant’s brother had passed away and the applicant and his wife had consequently returned to India in April 2018. The wife had then given birth to the applicant’s only child (a daughter) in May 2018. As the birth had complications, the wife was given a caesarean and was then required to remain in India for the following six months (in order to recover). Therefore, and while the applicant had returned to Australia sooner, the wife only returned to Australia on 30 December 2018, and she had commenced her studies (Bachelor of Business at a Sydney College), on 22 January 2019 (some three days before the hearing). After considering this evidence, I accept it is correct. It was also explained that the infant child had remained in India (the parents of both the applicant and his wife are sharing the care of the infant). An application for an Australian visa for the infant child is ongoing. The Tribunal also accepts this is correct.

19. At hearing, the applicant also referred to having borrowed some AUD$50,000 to support both he and his wife in Australia, and the wife’s education. However, he also conceded that he and his wife worked (part time) in Australia, and that they had sufficient funds to send money back to India (and as noted above, they both had travelled to India in April 2018). The Tribunal understands the wife had also said she had only successfully completed her English language course after arriving in Australia (her academic progress had been disrupted in 2018 due to her pregnancy followed by a six month recovery after having received a caesarean in May 2018).

20. When then discussing the claimed debt (AUD$50,000), the Tribunal said (words to the effect), it may find that any outstanding debt was less than the amount claimed. If the claimed amount had been borrowed, the Tribunal said it may not accept the majority had been spent, and part of the money could therefore be returned. At hearing, the Tribunal had put this to the applicant on a number of occasions and in more than one way. Though the Tribunal was satisfied the applicant was given a meaningful opportunity to put his evidence, the material response to this related to his wife wishing to continue to study in Australia. The Tribunal accepts the wife would prefer to continue to study in Australia. However, and though I accept the applicant and his wife would have incurred some expenses in travelling to and residing in Australia, and in education expenses for the wife, the Tribunal is not satisfied the amount claimed constitutes an accurate reflection of any outstanding debt/s for which they are responsible. Be that as it may, the Tribunal does accept the applicant and his wife have incurred some debt in travelling to and residing in Australia, and for the wife’s study in Australia; however, that debt was less than the applicant claimed.

21. At hearing, the Tribunal also said it understood (based on evidence from other Indian applicants) that if the wife had completed some subjects in courses in Australia, then she may obtain some course credits should she transfer to an education provider in India. The wife did not dispute this though she wished to continue her studies in Australia, and she said that qualifications in Australia were more highly regarded than qualifications in India. Be that as it may, the wife did not dispute that she should be able to continue her tertiary studies if she returned to India (having only completed secondary studies in India).

22. Further, at hearing the applicant said he had completed a “MBA” at a university in the city of Hyderabad (some 200kms distance from his family home in India). The Tribunal put to him that based on the information before it, such qualifications are well-regarded in both India and Australia. For instance, in India the country information stated:

    2.22 Education performance is uneven between the Indian states as educational outcomes correlate with economic performance: according to UNICEF in 2017, the southern state Kerala, one of India’s wealthiest states, reported a literacy rate of 93.91 per cent, while the poorer state of Bihar reported a rate of 63.82 per cent. The standard of teaching and the quality of teachers varies between states, and the World Bank reports significant rates of teacher absenteeism.[5]

    [5] DFAT COUNTRY INFORMATION REPORT INDIA, 17 October 2018.

23. In the applicant’s letter of 10 August 2018,[6] and statutory declaration dated 17 August 2018,[7] it was claimed he was concerned about his career, his wife and his then two month old daughter (born May 2018[8] - and who remained in India). At hearing, the now 32 year old applicant, who had been granted the Student visa in July 2017, said that his parents worked in agriculture (in a small village in India) and he had only worked casually (possibly in a related capacity) prior to departing India. The Tribunal put to him his qualifications should allow him to obtain suitable work in India. The applicant did not dispute this at the hearing, but he wanted his wife to continue with her studies in Australia. The Tribunal is satisfied the applicant could seek work commensurate with his skills in India.

    [6] Department – folio 50.

    [7] Department – folio 73.

    [8] Department – folio 56.

24. Next, it was claimed the applicant’s wife needed him to remain in Australia so that she could continue with her studies, and if his visa was cancelled, she may not be able to continue her studies in Australia, as she would not have anyone to take care of her infant daughter (who is now cared for by her mother and mother-in-law in India). She also explained that she had commenced to study a Bachelor of Business at a Sydney College (which the Tribunal accepts), and that her first class took place some three days prior to the Tribunal hearing.

25. When discussed at hearing, the applicants did not believe that (ie) another family member could be sponsored to travel to Australia to care for their infant child (if the applicant’s visa is cancelled).  The wife also explained her Bachelor of Business degree was due to be completed in May 2021. Therefore, if the applicant’s visa is cancelled, and there was no-one to care for her child in Australia, the only option for the wife would be to remain in Australia to complete her degree while her husband and infant daughter remained in India (which the Tribunal accepts would cause her inter alia emotional harm); or to return to India with her husband the applicant (which the Tribunal accepts may mean she would have to enquire about pursuing her education in India). The Tribunal accepts the wife did not wish to do either, and that she and the applicant wish him to remain in Australia.

26. That being said, the Tribunal was “urged to consider the interests of the family as a whole in this matter and to exercise its discretion in favour of not cancelling” the applicant’s visa. However, after considering the evidence, and based on all the findings herein, the Tribunal was not satisfied there exists a compelling need for the applicant to travel to or remain in Australia. The Tribunal accepts the applicant and his wife would prefer to remain in Australia in order for the wife to continue her studies here. However, and though not a preferred option, the Tribunal is satisfied the wife would have the capacity to pursue education in India, if required – even if same was less well regarded than the education she may obtain in Australia (as she had claimed).

27. Be that as it may, the Tribunal does accept that if the applicant’s visa is cancelled, he and his wife would be subject to some hardship.

28. Next, and regarding the circumstances in which the ground for cancellation arose, by undated letter from Roshan Suyan,[9] it was claimed the applicant was of good character, but had drank too much on the day of the assault. Further character references were provided.[10] Migration agent submissions included that the applicant was not likely to repeat the offence.[11] It was also claimed the applicant had not been imprisoned (he received a suspended sentence), that he was claimed to have expressed genuine remorse, and that he should be given a second chance. At hearing, the applicant again expressed his remorse for having committed the offence and after apologising, said he would not ever be a risk to the Australian community again.

    [9] Department – folio 54.

    [10] Department – from folio 56.

    [11] Department – folio 69.

29. At hearing, the Tribunal then advised that subject to his comments, the following information would be the reason, or part of the reason for affirming the decision under review. The Tribunal also advised the applicant he could request an opportunity to provide further submissions about this information after the hearing (no request was made). The information then put the following information to the applicant for comment (principally from the NSW Police Fact sheet):

    The assault involved the applicant making unwanted sexual advances towards a woman on a train; that he hugged her in an aggressive manner; that the victim told the applicant to stop and he persisted speaking to her in a sexual manner; that she attempted to telephone the police but the applicant grabbed at her breast and crotch area; that he became angry and agitated; that he placed his hand over her mouth in an aggressive manner; and that the assault ceased only after the victim had managed to escape from him and flee.

30. At hearing, the Tribunal then explained (words to the effect), this information may be relevant as it may be the reason or part of the reason for affirming the decision under review, because whether an applicant may be an ongoing risk to the Australian community is relevant to the Tribunal’s consideration of the discretion to cancel the visa.

31. The applicant said he was drunk at the time of the assault (something noted in the NSW Police Fact sheet) but he said this was not an excuse for his behaviour; and the Tribunal notes his level of intoxication did not prevent him from departing the family home and using public transport. The applicant also said he was remorseful and provided an apology. At hearing his migration agent said there was not an appreciable risk the applicant would repeat any similar behaviour. Based on the evidence, it appeared the agent was relying on what was said to be genuine remorse, the unlikelihood of the offence being repeated, and the character references provided (though the applicant’s wife also provided evidence going to whether the applicant would re-offend and this is discussed below).  

32. At hearing, the agent also said (words to the effect), the Tribunal proceeding was not intended as a further punishment of the applicant. The Tribunal understands it is part of the executive arm of government, but I understood that fairness required discussing the information in the NSW Police Fact Sheet, particularly as both the agent and the Tribunal believed that whether the applicant would or might re-offend, could be taken into account for the purposes of considering whether to exercise the discretion to cancel the visa.

33. At hearing, the applicant’s wife explained the assault had taken place on the day of her birthday celebration. A party was held at the applicant and his wife’s home, and though the wife had subsequently gone to her bed, the applicant had continued drinking (whiskey) with friends; and he had subsequently left the home (apparently unbeknownst to his wife). His wife also said the applicant was only an ‘occasional drinker (on weekends)’ and he had never been drunk previously.

1. As also stated at hearing, the applicant’s wife and witness (both in writing and orally at hearing) said the offence was out of character. Yet the assault took place shortly after the applicant was granted the Student visa and it was accompanied by aggressive behaviour; and behaviour which would have seriously frightened (if not harmed), the victim. As noted at hearing, the victim managed to push the applicant away and escape, and in so doing the victim presumably avoided more serious harm.

2. The Tribunal accepts the wife and witness/s believed the assault to have been out of character, though it none-the-less took place. As then said, given they did not anticipate the applicant to act in this way at all, the Tribunal would need to consider whether their assurances that the assault would not likely be repeated, should be given any weight. It was also said the applicant would be able to focus on care for his infant daughter (once she arrived in Australia – and a visa application for the daughter had been lodged), and his wife would be able to ensure he did not repeat a similar offence.

3. However, the wife was in attendance at the birthday celebrations after which the assault took place (though she may have gone to sleep prior to the applicant leaving the house), and notwithstanding the claims to the contrary, nothing stated satisfied the Tribunal the wife could plausibly monitor and or ensure her husband’s ongoing behaviour (given she would also be focussing on her studies and some level of care for her infant child). The applicant also said he would not drink again and he was sorry, but as noted at hearing, the Tribunal is not able to make any such order; and more importantly, based on all the adverse findings herein, I do not accept the applicant would desist from any and all alcohol consumption should he remain in Australia.

4. After then considering inter alia that the assault took place a short period after the applicant was granted his Student visa, and given the aggression and physical violence that accompanied the assault, notwithstanding the submissions to the contrary, the Tribunal believes there is still an appreciable risk the applicant could or may engage in some further improper behaviour in the foreseeable future. The Tribunal is satisfied this supports a decision to exercise the discretion to cancel the visa in this case.

5. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. As the applicant is a dependent visa holder, no other person’s visa would or may be cancelled if the applicant’s visa is cancelled

6. Next, if the applicant’s visa is cancelled he would become an unlawful noncitizen. He would then be liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal the applicant would be subject to indefinite detention (he had returned to his home in India in April 2018). Further, he should also be able to temporarily retain his Bridging visa in order to remain in the community to finalise his affairs prior to departing Australia.

7. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation. 

8. Next, the Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. The Tribunal notes for instance, that the applicant’s infant child is presently residing in India (not yet having been granted a visa to Australia), and if the applicant’s visa is cancelled and he returns to India, and his wife chooses to return to India (as she has claimed she would be required to do), then both the applicant and his wife would then be re-united with their infant child.

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

   DECISION

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

    Mr S Norman
    Member