Saini (Migration)

[2021] AATA 5219

Saini (Migration) [2021] AATA 5219 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sachin Saini

CASE NUMBER:  2104454

HOME AFFAIRS REFERENCE(S):          BCC2020/1931447

MEMBER:David McCulloch

DATE:19 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2021 at 8:53am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – three counts of intentionally sexually touch child – consideration of discretion – no extenuating circumstances – dependent on partner’s student visa – relationship ceased – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), rr 1.12, 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 February 2020 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).

2. The applicant is a citizen of India born on 20 February 1996. The visa that was cancelled was granted on 22 November 2019, expiring on 26 August 2021.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 15 February 2021. The applicant did not provide a response to the NOICC.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 7 October 2021 at 9.30 am to give evidence and present arguments.

6. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. In the hearing, the Tribunal was assisted with the use of an interpreter in the Hindi language who also attended by video on Microsoft Teams.

8. 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

9. 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?

10. 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

11. The delegate’s decision record and documents on the Department file indicates that, according to a report provided by the NSW Police, the applicant has been convicted of the following criminal offences on 21 January 2021 at the Parramatta District Court: three counts of intentionally sexually touch child >= 10 years and < 16 years with a three year community correction order commencing on 21 January 2021.

12. In the hearing, the applicant acknowledged these convictions and the penalty that he had received.

13. 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 s116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

14. 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’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under

    
    

    s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

15. The Statement of Agreed Facts, contained on the Department file, outlines the allegations against the applicant relating to the charges.

16. The victim in this matter was at that time a 12-year-old female student and the applicant was at that time 24 years of age.

17. On 15 June 2020, the applicant and the victim met on a bus. The victim came and sat next to the applicant, and started a conversation. The victim told the applicant that she was 14 years of age and wanted to kiss the applicant. They moved to the back of the bus and kissed. They then exchanged phone numbers. On 17 June 2020, they exchanged SMS messages and met in person. He collected her from her bus stop at Crestwood High School and drove her to KFC, Dural. He then drove her back to her home. In the car, they kissed and the applicant touched the victim on her breasts on the outside of her clothing. The applicant stated that he touched the victim on her upper legs on top of her shorts.

18. On 5 July 2020, the victim told her sister about the victim and the applicant’s relationship and that some sexual activity took place between them.

19. The victim’s mother took the victim’s mobile phone and exchanged a number of SMS messages with the applicant. During this message exchange, they spoke about sex and made an arrangement to meet up.

20. On 6 July 2020, a report was made to Revesby Police Station and a police investigation commenced. On 8 July 2020, the victim was interviewed by detectives. On 15 July, the applicant was spoken to at his home address. He provided the police with access to his mobile phone, where messages between him and the victim were viewed. The applicant was arrested. He declined to speak to a legal representative and subsequently participated in an electronically recorded interview. He made admissions to meeting with the victim on the bus on 15 June 2020 and that they kissed on the back seat of the bus and exchanged telephone numbers. He made further admissions to collecting the victim from her school on 17 June 2020 and driving her to KFC, Dural. He made admissions to kissing the victim on the back seat of the vehicle and touching the victim’s breasts on the outside of her clothing. The applicant denied any further sexual activity.

21. The applicant stated that he was unaware of the inappropriate nature of his conduct with the victim. The applicant stated that his understanding of sex was “just kissing”. Then he stated sexual intercourse is “when you insert your penis in some females”. The applicant confirmed he was in Australia on a spousal visa. When asked whether he thought that being in a relationship with a 14-year-old girl wasn’t right he said “I had no idea that it was not right and I had no idea that this was illegal”. Further to that question he replied “She asked for it isn’t it?” The applicant when asked if he thought that the kissing and the touching may lead to the applicant’s definition of sex he replied “I have no idea”.

22. Information on the mobile phone of the applicant found by police indicated that the majority of SMS contact was initiated by the victim. However there were clear conversations relating to the victim’s age, with her purporting to be 14 or 15 years old.

23. The Tribunal put to the applicant in the hearing the following pursuant to the procedural requirements of s 359AA of the Act. The Tribunal put to the applicant that the agreed factual circumstances as indicated in the Facts Sheet indicates several instances of sexualised contact with someone who the applicant knew to be less than 16 years of age. The Tribunal put to the applicant that this information was relevant because it demonstrated inappropriate conduct by the applicant and the consequences of relying on the information could result in adverse discretionary factors being considered against the applicant in determining whether the visa ought to be cancelled.

24. The applicant was told pursuant to the requirements of s 359AA that he did not have to respond in the hearing and could do so later in writing. The applicant elected to respond in writing. The applicant did not respond to the Tribunal in the timeframe given or thereafter.

25. The Tribunal indicated to the applicant in the hearing that a discretionary factor to consider are the circumstances in which the ground of cancellation was made out and whether there were any extenuating circumstances beyond his control in explaining the convictions.

26. In response, the applicant indicated that he has been given a penalty for the offences and is now on a child protection list.  The applicant did not seek to explain or justify the offences. The Tribunal asked the applicant if he conceded that what he did was wrong. The applicant indicated that it was a big mistake and he had never done anything similar before.

27. The Tribunal is not satisfied on the evidence that there are extenuating circumstances beyond the applicant’s control that explain the offences. This is adverse to the applicant in considering discretionary factors.

28. More broadly, and considering the applicant’s lack of a response following the hearing to the s 359AA information in the agreed Police Facts Sheet, the factual circumstances leading to the convictions are an adverse discretionary factor given not insignificant sexualised contact by the applicant, as an adult, with a person known to be a minor.

29. In the hearing, the applicant indicated that he had come to Australia in December 2019 as a dependent on his partner’s student visa. The applicant indicated that this relationship had ended five or six months after they arrived in Australia.

30. The Tribunal noted to the applicant in the hearing that this would suggest another basis on which he had not complied with his visa. 

31. A visa may be cancelled under s 116(1)(a) if the Minister or the Tribunal is satisfied that the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or no longer exists.

32. The applicant as a dependent would have been granted the visa because he was a member of the family unit of the primary visa holder. This was on the basis that the applicant met, amongst other criteria, the secondary criteria of the visa on the basis that he was a member of the primary visa holder’s family unit as prescribed by reg 1.12 of the Regulations.

33. Given on the applicant’s indication in the hearing that the relationship ended five or six months after coming to Australia, he is no longer the spouse or de facto of the primary visa holder and therefore a fact or circumstance leading to the grant of the visa no longer exists.

34. In response, the applicant indicated that in consultation with family in India it is hoped that there may be a reconciliation with his partner.

35. The evidence does not discount the fact that the relationship ended in the first half of 2020. The fact that there is another basis on which the applicant does not comply with his visa is an adverse discretionary factor.

36. Evidence before the Tribunal indicates that the applicant had himself enrolled in an English course and an Advanced Diploma of Business. The applicant in the hearing agreed that this was correct but indicated that he did not proceed with these studies because of the charges against him.

37. The Tribunal asked the applicant in hearing what compelling reasons he had to remain in Australia and/or the hardship that would be faced if the visa was cancelled. In response, the applicant indicated that he wishes to study initially in an English course and then progress to a cookery course. The applicant indicated that hardship if the visa remains cancelled is that he would return to India without substantial achievement in Australia and this would be a hardship to him and a disappointment to his family.

38. The Tribunal accepts as a discretionary factor in the applicant’s favour some degree of hardship to the applicant if the visa remains cancelled in that he would not be able to remain for a period in Australia as he wishes and to undertake a course of study.

39. The Tribunal also accepts that a hardship to the applicant if the visa remains cancelled will be his inability to apply for many other visas onshore for a period.

40. The applicant in hearing indicated that he is currently on a bridging visa. The Tribunal accepts that if the visa remains cancelled the applicant could be an unlawful noncitizen and subject to immigration detention. However, the Tribunal considers that the applicant would remain eligible for a bridging visa to make his status lawful as he makes arrangements to leave the country.

41. The applicant in the hearing indicated that there are no children whose interests would be adversely affected by the cancellation of the visa.

42. The applicant indicated in the hearing that he does not fear persecution or significant harm on return to India and therefore Australia’s non-refoulment obligations are not enlivened.

43. The Tribunal weighed discretionary factors. Significantly adverse to the applicant is his inappropriate conduct towards a minor leading to the convictions against him and that there are no extenuating circumstances that are made to seek to justify the conduct. Adverse to the applicant is the fact that the justification for his dependent visa based on his relationship no longer exists and would be a ground also to cancel the visa. The Tribunal in the applicant’s favour accepts some degree of hardship to the applicant in not being able to remain in Australia for the purpose of study or for other reasons. However, this hardship is limited given that the applicant would always have had the obligation to return to India.

44. Balancing these, and all other discretionary factors, the matters adverse to the applicant clearly in the Tribunal’s view outweigh matters in his favour and the Tribunal determines to exercise its discretion to cancel the visa.

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

    DECISION

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

    David McCulloch
    Member