Raza (Migration)

[2019] AATA 6168

Raza (Migration) [2019] AATA 6168 (24 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Raza

CASE NUMBER:  1836670

HOME AFFAIRS REFERENCE(S):           BCC2018/4141313

MEMBER:Rachel Westaway

DATE:24 October 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 24 October 2019 at 6:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – risk to community – criminal charges – claims innocence – good behaviour in prison – community does not tolerate sexual assault – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 116

CASES

Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 December 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) as the presence of its 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 on the basis that on 21 September 2018 the visa holder was arrested and charged by Victoria Police with 13 counts of Sexual Assault. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant was in detention at the time of the hearing.

3. The applicant appeared before the Tribunal on 8 March 2019 to give evidence and present arguments.

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)(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?

6. 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].

7. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

8. The applicant applied for review to the Administrative Appeals Tribunal and supplied the Tribunal with a copy of the delegate’s decision.

9. The applicant provided the Tribunal with a reference dated 5 March 2019 from Danish Ali who claims to be the applicant’s friend[1]. The reference outlined that he is a good friend, that they lived together and that this is out of character. It stated that the applicant takes responsibility for his actions, that he has almost finished his studies and that he is always respectful to everyone. The reference explained that the applicant is having a hard time with his family and provided an example of the applicant’s honesty in returning a mobile phone to a customer.

   [1] Tribunal file f:38

10. The applicant provided a copy of his Certificate of Qualification for a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis. Corresponding results indicating the applicant is competent in all subjects and one subject where he received a credit transfer were also provided[2].

    [2] Ibid ff:36-37

11. The applicant provided a copy of the delegate’s decision[3] as well as a copy of his response to the Notice of Intention to Consider Cancellation[4]. It outlined that he came to Australia to study and his parents have worked hard to send him to Australia. He claims to be innocent. He claims that the cancellation of his visa on his family will be significant as his father is a noble man. He provided an explanation as to the events which led to the charges. He claims to have no previous record and stated it will ruin his life.

    [3] Ibid ff: 39-42

    [4] Ibid 47-48

12. The applicant also supplied an updated statement[5] providing details of what he has been doing in detention and his desire to recommence work in the security area and that he has become estranged from his family his father has disowned him and removed his entitlement to property and sent him a threatening letter[6] which has been translated and states that he is disowned due to the shame he has brought the family and that if his father sees him he will kill him. It also states that he will not pay for him anymore.

    [5] Ibid ff: 43-44

    [6] Ibid ff: 45-46

13. The applicant also supplied a copy of a letter from the department dated 28 February 2019 regarding the possible refusal of a bridging visa E under s 501 91) of the Migration Act 1958 explaining that Direction 79 replaces Direction 65.

14. On 26 September 2019 the Tribunal wrote to the applicant requesting information about the outcome of his criminal matter. On 3 October 2019 the applicant replied to the Tribunal by email and confirmed that on 14 April 2019 he pleaded guilty to one charge of sexual assault. He was sentenced to 8 months imprisonment.

15. He appealed the decision in the County Court and on 6 June 2019 and the sentence was reduced to 5 months. He stated that on 15 September 2019 he was released from prison and has been in detention. He has claimed that he has been well behaved in prison and detention. He claims he has spent time thinking about what he has done and is remorseful and feels guilty. He wishes he could change things and understands the implications on the victim and himself and believes he has been punished enough. He would like to return to study and not waste the time he has already studied and to complete his studies would be good for his career.

16. At hearing, the applicant stated that he does not accept that the grounds exist to cancel his visa. He said that he denies the allegations and all he was doing was helping an intoxicated passenger in his taxi because she was feeling sick. The applicant’s response to his Notice of Intention to Consider Cancelling explained that the passenger requested he rub her chest and back to soothe her while she was vomiting and he helped the passenger fasten her seat belt he also stated that he assisted the passenger to her door due to her level of intoxication. He has never breached any of the conditions on his student visa nor did he have any adverse information against him. He outlined the money his family had spent educating him and that a cancellation would injure his reputation in his community in Australia and Pakistan.

17. At the time of the hearing the applicant had been charged with 13 counts of sexual assault relating to an incident on 19 July 2018. The applicant allegedly sexually assaulted a female passenger when he was driving a taxi and she was the customer.

18. The applicant confirmed the charges existed but denied the allegations. He stated that a further hearing for the matter was due on 28 March 2019 and he explained that he had a lawyer representing him.

19. The Tribunal explained to the applicant his rights and that he did not have to respond to questions pertaining to the charges noting its concerns that the applicant may risk self-incrimination.

20. The applicant confirmed the thirteen charges against him.

21. The Tribunal has considered the information on the Department file[7] which contained the preliminary brief from the Informant, bail conditions for the applicant, charge sheets, a statement by the alleged victim, a statement by two witnesses and printed photographs of a passenger in a taxi allegedly being assaulted, bank statement from the alleged victim showing associated taxi costs, pictures inside the alleged victims house, a summary of allegations and a job report.

    [7] BCC2018/4141313 ff:5-70

22. The Tribunal outlined the relevant information to the applicant explaining and showing the applicant the pictures on the Department file of the applicant inside his taxi with the alleged victim and appearing to touch her inappropriately. This information was put to the applicant under section 359(AA) of the Migration Act 1958. The Tribunal explained the relevance. The images show the applicant touching the alleged victim inappropriately and the Tribunal considers that these pictures support the charges of sexual assault and show the alleged victim looking intoxicated and therefore being unable to defend herself. The Tribunal explained that this predatory and violent behaviour underpins the charges of sexual assault which the applicant was charged with and is unacceptable, unlawful behaviour and can cause a victim long term trauma. The Tribunal explained that this material would be the reason or part of the reason for affirming the decision under review. The Tribunal confirmed if the applicant understood the relevance of the material and invited the applicant to comment on it or respond. The Tribunal offered the applicant the opportunity to respond at a later time or to adjourn and return later to respond. The Tribunal reminded the applicant against self-incrimination.

23. The applicant elected not to respond to the information but stated that he had no previous criminal record and he worked in the community and he was still working in the community and this is based on one thing he has done. He has spent three years here and has done nothing else. He explained he was not seen as a risk before.

24. The Tribunal has considered the nature of the charges and the applicant’s recent advice post hearing to the Tribunal that he pleaded guilty to one charge of sexual assault on 14 April 2019 and was sentenced to 8 months imprisonment. The nature of the conviction is serious. The victim was a young woman who was preyed upon and was incapacitated and unable to defend herself. Crimes of this nature are intolerable to the community and leave psychological trauma for the victim. Furthermore the fact that the applicant received a prison sentence is indicative of the seriousness of the crime. For these reasons, the Tribunal is satisfied that presence of the applicant in Australia is or may be a risk to the health or safety of a segment of the Australian community and 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

25. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

26. The Tribunal acknowledge that the applicant came to Australia to study a Diploma of Automotive Technology which he was progressing with and due to finish on 17 February 2019 if not for the issues currently before the Tribunal. He explained that it was to set him up for the future and that his parents had invested a significant amount of money in his education. The Tribunal gives this factor some weight in favour of not cancelling the visa.

    the extent of compliance with visa conditions

27. The applicant stated he has not breached any other conditions on his visa and has never been in trouble with the law. The Tribunal expects that all visa holders abide by the conditions on their visas and as such gives this factor minimal weight in favour of the applicant.

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

28. The applicant explained that the visa cancellation would ‘injure’ his reputation in his community in Australia and in Pakistan and that his parents would incur a significant loss of money and reputation if his visa was cancelled. The Tribunal has considered the applicant’s father’s letter outlining how the family have lost their reputation and are ridiculed in their community. The Tribunal has considered the reference from the applicant’s friend outlining his honesty and appealing to the Tribunal to allow him to finish his studies. The Tribunal appreciates that a visa cancellation is disappointing and with it brings some lost opportunities for the applicant, financial loss given the commitment to coming to Australia and being unable to finish his studies and the emotional hardship faced by the applicant and his family. The Tribunal gives these factors some weight in favour of the applicant.

    Circumstances in which ground of cancellation arose.

29. The cancellation was due to 13 charges of sexual assault against the applicant which he later informed the Tribunal was reduced to one after pleading guilty to this. He was subsequently convicted and sentenced to 8 months imprisonment. The serious nature of the charges led to the cancellation of the applicant’s visa. The tribunal has considered the reasons for cancellation and they are not based on factors beyond the applicant’s control. They were predatory in nature targeting a young woman who was intoxicated and unable to defend herself. The Tribunal therefore gives this factor no weight in favour of not cancelling the visa.

    past and present behaviour of the visa holder towards the department

30. There is no adverse information before the Tribunal to indicate that the applicant has not behaved appropriately or responded to requests by the department when asked. The applicant outlined his good behaviour in prison and detention. These factors have been considered by the tribunal and are given some weight in favour of the applicant.

    whether there would be consequential cancellations under s.140

31. The applicant has no dependents on his visa and as such he tribunal gives this factor no weight.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

32. If the visa holder’s visa is cancelled he would become an unlawful non-citizen and his ability to apply for other visas would be limited. The applicant is currently detained so he would remain detained until he made arrangements to leave Australia or is removed from Australia

33. Public Interest Criterion 4013 may apply to the applicant and he may not meet the requirement for the grant of certain visa applications for a three year period. Furthermore given he has been convicted of a serious offence and served a prison sentence, he may also be excluded from applying for some visas based on character grounds.

34. The Tribunal sees these as natural consequences of the cancellation of a visa and as such assigns this no weight in favour of the applicant.

    whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

35. The applicant provided a letter from his father stating he is disowned and that if his father sees him he will kill him because he has brought shame upon the family and their reputation. If the applicant is concerned about returning to Pakistan, then he has avenues in which to seek protection outside of this process. There are no other factors raised by the applicant to suggest Australia’s international obligations would be breached by the visa cancellation. The Tribunal therefore gives this no weight.

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

36. This is not a relevant consideration.

    any other relevant matters

37. The applicant has stated that as his father has disowned him and will not provide financial support he cannot return to Pakistan as he will have no one to support him. He said that he is close to completing his studies and he won’t survive because he needs a job and he has friends in Australia and would like to obtain work experience. He said that in Australia he has taxi work but there are not as many opportunities in Pakistan compared to in Australia. He said that he can’t study and work at the same time in Pakistan but you can in Australia.

38. The Tribunal accepts that the applicant may not have the financial support of his family in Pakistan and that may mean he is unable to continue his studies or that he puts them on hold until he is able to work and save money for future studies. The Tribunal also understands that the applicant may have built a support network in Australia which may not be available immediately in Pakistan. The applicant was on a temporary visas and the very nature of this means that he must return home at some point in time. The Tribunal appreciates that it is ideal for the applicant to complete his studies and gain work experience in Australia before returning to Pakistan, however the nature and consequence of a cancellation is that this may be cut short before a person has had a chance to complete their studies. The applicant may have to work rather than combine work and study in Pakistan. The Tribunal accepts that the applicant does not want to do this however considering the seriousness nature of the ground for cancellation; the Tribunal gives this minimal weight.

39. The Tribunal has considered the factors above individually and cumulatively. The nature of the charges and the conviction is extremely serious and those in the community, particularly people who are vulnerable must be protected.  Community expectations and values do not tolerate such predatory acts of sexual assault. Whilst the Tribunal has considered very seriously the factors put forward by the applicant for not cancelling the visa and given some weight to them,  the Tribunal concludes that the visa should be cancelled

    DECISION

40. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Rachel Westaway
    Senior Member