Shitol (Migration)

[2021] AATA 3834

Shitol (Migration) [2021] AATA 3834 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sidratul Muntaha Shitol

CASE NUMBER:  2004024

HOME AFFAIRS REFERENCE(S):          BCC2019/5586303

MEMBER:David McCulloch

DATE:25 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2021 at 8:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – criminal convictions and fine – discretion to cancel visa – claimed lack of full understanding of conditions of ADVO and inadvertent breach because protected person had moved workplace – lower level of seriousness – admission of culpability and insight into impact on victim – continuing study and completion of course soon after visa cancelled – visa now expired – intended further study and enrolment in higher-level course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 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 Bangladesh, born on [Date]. The visa was granted on 13 March 2018, expiring on 5 April 2021.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 10 February 2020. The applicant responded in writing on 21 February 2020.

4. The applicant appeared before the Tribunal on 29 July 2020 at 9.30am to give evidence and present arguments. Due to the COVID-19 pandemic the hearing was held by video using Microsoft Teams.

5. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

6. 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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(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?

8. 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) 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)).

9. The delegate’s decision record and documents on the Department file indicate that, according to a report provided by the NSW Police, the applicant was convicted of one offence of ‘Contravene prohibition/restriction in AVO (Domestic)’ with a s.10A conviction with no other penalty and a second offence of ‘Contravene prohibition/restriction in AVO (Domestic)’ with a fine of $500.

10. In the response to the NOICC the applicant conceded that he was convicted of these two offences. In the hearing the applicant acknowledged these convictions.

11. 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

12. 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’.

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’. 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.

14. On the Departmental file is a New South Wales police Facts Sheet setting out allegations pertaining to the charges against the applicant. The Facts Sheet provides relevantly as follows.

15. The victim in the matter is a person with whom the applicant had been in a relationship, which had ended in March 2019. In May 2019 an Apprehended Domestic Violence Order (ADVO) was applied for by the police listing the victim as a person who was in need of protection and the applicant as the defendant. On 10 September 2019 the ADVO was confirmed to ‘final order’ status, expiring on 9 September 2021. The order was served on the applicant at Burwood Court.  The Facts Sheet outlines the terms of the ADVO including that the applicant must not approach the victim in any way unless contact is through a lawyer. In addition, the applicant must not go within a hundred metres of any place where the victim works.

16. On 16 October 2019 it is alleged that the victim was working at a café.  At about 7pm, the victim, from her position behind the front counter of the café, saw the applicant standing across the road from the café. The victim saw the applicant look at her before walking into the café. The applicant talked to a colleague of the victim who was standing next to the victim. The applicant was standing less than a metre from the victim. The applicant spoke to this colleague for about three minutes. The applicant glanced at the victim a couple of times during the conversation. This left the victim feeling uncomfortable and scared. The applicant then left the café.

17. On 27 October 2019 the victim was working at the café once more. At about 5.15pm on that day, the victim saw the applicant enter the café with a male friend. The victim was standing behind the counter at this time. As the applicant was entering the café, he looked directly at the victim. The applicant and his friend stayed in the café for about five minutes before leaving.

18. At around 8pm the victim reported the incidents to the Campsie police station. The victim claimed that the visits caused her to have fears of returning to work. The Facts Sheet alleges that the encounters breach the ADVO that the applicant must not go within a hundred metres of any place where the victim works.

19. The applicant was interviewed by police and admitted that he attended the location on both occasions as he had a sore throat and wanted to buy tea. At no time, he claims, did he speak to the victim.

20. The applicant provided the following in a declaration dated 21 February 2020 in response to the NOICC:

    1.   Was born on [Date], and I am currently aged 20 years old.

    2.   On 14 November 2019, I was convicted of two offences of contravening a prohibition restriction in AVO (domestic) and I received a section IOA conviction with no penalty in relation to the one contravention and a fine of $500.00, in relation to the second.

    3.   The circumstances around the conviction are as follows:

    a)   The protected person under the ADVO, for which I have been convicted of breaching was my ex girlfriend, I will refer to her for the remainder of this declaration as Nazia.

    b)   Nazia and I were in a relationship between August 2018 and March of 2019.

    c)   On 5 February 2019 I flew back home to Bangladesh and returned on or about 5 March 2019.

    d)   On May of 2019 1 had a heated argument with my Nazia over the fact that I found out that she was having relations with another person during our relationship (cheating on me). There was no violence or force used whatsoever during our argument and I was never charged in relation to common assault or anything like that.

    e)   Despite there been no physical violence, threats or intimidation, Nazia made a complaint to the police and an ADVO was applied for by the police. It was explained to me that the ADVO was not a criminal conviction and was simply for the protection of Nazia.

    f)    I was not charged with any criminal offences at that time.

    g)   On 10 September 2019, I appeared before a magistrate of the local court at Burwood in relation to this ADVO. I did not have any legal representation at the time. I attempted to seek assistance from legal aid, but was adviced that due to the fact, that there were no criminal charges actually laid against me, that I did no qualify for assistance from legal aid. I was then pressured by the police prosecutor to concede to the ADVO and was constantly told that, it was just a simple procedural issue and that there was no criminal conviction involved. Been legally unrepresented and not knowing what I could do, the ADVO was entered against me.

    h)   I did not understand that the ADVO would stop me from being anywhere near Nazia.

    i)    Nazia, works at Dhaka Delight, a café very popular in the Bangladeshi community in Lakemba NSW.

    j)    I live in Lakemba.

    k)   I do not know the work hours of Nazia, and I have a lot of friends who also works there, as well as family friends.

    l)    On 16th October 2019, I attended the café where Nazia was working and I spoke to my friend who was also working there, Nazi was working at the time. I did not know that Nazia would be working at the time. When I first approached the Café, Nazia was nowhere in sight, as she was working at the back, only a while after I started talking to my friend did Nazia appear.

    m)  On 27 October 2019, a Sunday, I went to the café with a friend, I did not know that Nazia would be working on that day, I had just finished getting a haircut and my friend and l, crossed the road from the hiarderesser to the café, so that we can get some tea for ourselves and the hairdresser. I had no intention of bumping into Nazia or seeing her at all.

    n)   I did not speak to Nazia on either occasion or threaten her. Annexed hereto and marked "A" is a copy of the police factsheet in relation to the charges I have been convicted of.

    4.   I am currently studying a diploma of business, at the University of Western Sydney, my studies will be complete in February of 2021. I have currently completed 8 units in Australia, I have 16 more units to complete before my course is finished. If my visa is revoked and I am required to return back home, I will not be able to complete my studies. I have already paid $5,000.00 to the University of Western Sydney in advance for my future studies and that money will be forfeited should I not be able to complete my studies.

    5.   I have never been in trouble with the police before the ADVO matter, not here in Australia nor in Bangladesh.

    6.   I have never even been to a court before the 10 September 2019, when I went unrepresented and could not obtain legal advice through legal aid.

    7.   I understand that I have had convictions entered against me, and for that I am utterly sorry.

    8.   I am not a person of bad character and I hope that the department will take into account, my young age, my lack of criminal history or associations in making its decision.

    9.   I have complete contrition for my convictions and I have absolutely no intention to put my self in a position like that ever again. Annexed hereto and marked with the letter "B" is a copy of the sentencing assessment report, I obtained from Corrective Services NSW after cosulting with me regarding the breach of the ADVO.

    10.  Since receiving the letter from the department my family back home have been constantly worried about me, as they fear that if I fail to complete my studies in Australia, my whole life will be thrown away. I ask the department to consider this when making their decision.

    11.  I love this beautiful country and promise to live by it's laws. It is only ignorance which has put me in this place, this is noted in the sentencing assessment report.

21. The sentencing report attached to the declaration indicates that the applicant asserted that his offending behaviour was a result of him not totally understanding the conditions of the ADVO imposed upon him. The report indicates that the applicant was able to demonstrate the impact of his offence on the victim. It is noted that if the court makes a supervised supervision order, the plan is likely to involve referring the applicant to a Domestic Violence Offender Program, using intervention models aimed at addressing the applicant’s communication, impulsivity and environment management. The report indicates that the applicant is a suitable person to undertake community service work. However, it is indicated that there are no current community service placement/allocations for offenders who have offences of a violent nature as they are currently at capacity.

22. After the hearing the following was provided by the applicant’s migration agent:

    The applicant has enrolled himself in Graduate Diploma of Business and wishes to complete this course before going home.

    ·     The visa of the student was cancelled on “Character Ground” due to the breach of AVO given to him in a family dispute situation.

    ·     The applicant accepts that there was breach of AVO inadvertently because he ended up in a café where the protected person was working. He knew that she was working somewhere else, not there but accidently, the same owner had two business and she was shifted to that business without the knowledge of the applicant.

    ·     Since the above incident, the visa holder has not gone to that café and has not breached the condition of the order. He has not contacted or has not attempted to contact the protected person.

    ·     Since that time the applicant has focused on his studies and completed Diploma course in Australia & enrolled for further studies.

    ·     The applicant is 22 years old now and at the time of the above incidents he would have been 20 years old.

    ·     The applicant is of very young age. He wishes to continue his higher studies in Australia that is why he came from Bangladesh Initially. The applicant is from a business family and upon the completion of the studies he wishes to return to be involved in his parents’ business. He believes that the Australian qualification will make difference in his future upon his return.

    ·     The applicant has respect for law and order and since the last time there has been no further incident that indicates disregard to the law, The applicant has clearly shown that he is a good person and deserves a chance.

    ·     That chance is for his further education in Australia.

    In light of the above, kindly consider allowing him to keep the visa which will help him to shape up his future. He is not a professional, serial, or hard-core criminal or repeat offender.

    He is a young student who got into argument with his partner and partner ended up getting an AVO which gets breached inadvertently.  Such breach is not in control of the applicant. If he had known that she was there he would not have gone there.

23. In the hearing the applicant indicated that at the time he had been issued with the ADVO he knew this prevented him from approaching his former partner, but did not know that it contained a specific provision preventing him from going near her place of work. The applicant indicated that he went to the café, which is popular among Bangladeshis, to get sweets, including after getting a haircut nearby. The applicant acknowledged that he saw his former partner working at the café on his first visit but that he did not know that she would be working there on the second occasion he visited.

24. The Tribunal put to the applicant that given that he knew his former girlfriend worked at the café at least after his first visit, he compounded the offence by visiting on a second occasion when he would have known there would be a chance that his former partner would be there. The applicant maintained that he only visited relatively briefly to get sweets and that he did not definitely know that she would be there.

25. The Tribunal considers that the applicant has had flagrant disregard for the terms of the ADVO, particularly in relation to the second café visit. The Tribunal has significant doubts that the applicant, who clearly has a reasonably good command of English, given his time studying in Australia in English and his command of English in the hearing, was not aware of the specific terms of the ADVO.

26. In the hearing, the applicant acknowledged negligence and culpability on his part. The applicant acknowledged that the visits to the café in the presence of his former girlfriend would have been frightening and intimidating to her.

27. The Tribunal considers it somewhat in the applicant’s favour in not exercising the discretion to cancel the visa that the applicant admits culpability and has insight into the impact on his former girlfriend.  From her perspective, the encounters were so threatening that she made the effort to report the visits to the police.

28. The fact that the applicant has demonstrated flagrant disregard to the terms of an ADVO and has been convicted of two criminal convictions relating to that, albeit at a lower level of seriousness, is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

29. In response to the NOICC, the applicant indicated that the key hardship if the visa was cancelled would be his inability to complete his Diploma of Business, which was due to be completed in early 2021. Shortly before the hearing, the applicant provided evidence of him fulfilling the requirements for the Diploma of Business on 13 March 2021. Thus, the key hardship previously articulated by the applicant would no longer be a hardship because he has finished and passed the Diploma of Business.

30. The Tribunal notes that the student visa that has been cancelled has now ended, and therefore, given that the applicant continued studying while the visa was cancelled and has completed his course, there is no hardship in terms of preventing his study during the time period of the visa that has been cancelled.

31. It is given some weight in the applicant’s favour that he has successfully completed a course of study in Australia while on the visa.

1. In the hearing, the applicant indicated that the key hardship if the visa was cancelled would be his inability to undertake further study. The applicant indicated that he been considering either a Bachelor of Accounting or a Bachelor of Management, with a preference for the latter. A request was made that the applicant be able to provide, following the hearing, his confirmation of enrolment in the latter course. Provided subsequently was a Confirmation of Enrolment in a Graduate Diploma of Management (Learning) to commence on 11 October 2021.

2. The applicant indicated that his previous course will give him credit of one year towards his intended new course. The applicant indicated that at this point he will consider returning to Bangladesh, although he would also consider further study in Australia.

3. The applicant indicated that there will be hardship to him if the visa remains cancelled because of his inability to progress with this intended future study and a partial wasting of his Diploma of Business in terms of not being able to have a credit towards further study.

4. The applicant indicated that his parents have invested significant resources in his study in Australia and that this expenditure will be partially wasted if he is not able to optimise his study experience in Australia.

5. As the visa that has been cancelled has ended, the applicant would need to apply for a new student visa to undertake further study. A decision by the Tribunal to affirm the cancellation of the visa will prevent the applicant applying for many other visas onshore, including a new student visa. The Tribunal accepts that it is not insignificant hardship to the applicant that if the visa remains cancelled, he would not be able to apply for a new student visa and continue with his further intended course of study in Australia. The Tribunal accepts that this could be seen as not optimising the expenditure on the applicant’s travel to and study in Australia, although the applicant has completed his Diploma of Business, which adds to the applicant’s academic qualifications.

6. If the visa remains cancelled, the applicant could be an unlawful noncitizen, although the Tribunal considers that the applicant would remain eligible to apply for a Bridging visa to make his status lawful while he makes arrangements to leave the country.

7. The applicant indicated that there is no one attached to his visa that would be affected by the cancellation.

8. The applicant indicated in the hearing that while living in Bangladesh can be difficult (compared to Australia) he does not fear serious or significant harm in Bangladesh that would entitle him to a Protection visa.

9. There is no evidence that the applicant has breached other visa conditions.

10. These, in the Tribunal’s view, are the relevant discretionary factors which the Tribunal weighs.

11. In summary, the applicant has had the full benefit of the Student visa that has been cancelled in terms of successfully completing a course of study. The Tribunal considers that the key hardship to the applicant if the visa remains cancelled would be his inability to apply for a further Student visa and to continue study in Australia. The Tribunal accepts that the applicant has a genuine intention to undertake further study and that the cancellation of the visa will not fully optimise the time and expense involved in the applicant’s travel to and study so far in Australia.

12. The key issue weighed against this is the fact that the applicant has shown flagrant disregard for the ADVO and caused intimidation and fear for his former partner on two occasions to such a degree that it caused her to report the applicant to the police. The fact that the applicant has been convicted of two criminal offences in Australia, albeit at a lower level of seriousness, significantly weighs against the applicant.

13. Balancing discretionary factors, and accepting not insignificant hardship to the applicant if the visa remains cancelled, in terms of his inability to continue to study and make a life for himself in Australia, the Tribunal determines to exercise its discretion to cancel the visa.

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

    DECISION

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

    David McCulloch
    Member