Singh (Migration)

[2019] AATA 4460

Singh (Migration) [2019] AATA 4460 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satvinder Singh

CASE NUMBER:  1900608

HOME AFFAIRS REFERENCE(S):           BCC2018/4039361

MEMBER:Justin Owen

DATE:23 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 23 July 2019 at 2:48pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – applicant convicted of an offence – stalking and intimidating a child – concerning explanations for behaviour – applicant ceased enrolment – financial hardship – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 January 2019 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 delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of a criminal offence 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. The applicant appeared before the Tribunal on 25 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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?

7. 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.

8. According to the delegate’s decision record that the applicant supplied to the Tribunal, on 15 August 2018 the applicant was convicted of the offence Stalk/intimidate intend fear physical etc. harm (personal) at the Manly Local Court.

9. At the hearing the applicant agreed that he had been convicted of the offence.  

10. 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

11. 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 Procedural Instructions (previously known as PAM3) ‘General visa cancellation powers’.

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

13. The grounds for cancellation arose out of the applicant’s conviction of a criminal charge of stalk/intimidate fear physical harm (personal).   The Tribunal noted from the decision record the applicant provided that the Police Facts Sheet had stated the victim was a 14-year-old school girl.  The Tribunal noted from the decision record that the Police Facts Sheet which was presented to the Court stated that the applicant during May 2018 would follow the victim from school after her music lesson at about 1730 to a restaurant where she would await collection from her mother.  The Tribunal noted that the victim also recounted the applicant standing in a darkened passageway and asked her to come over to him.      

14. The applicant explained to the Tribunal how the circumstances in which the ground for cancellation arose and these specific criminal charge came about.  He said he was convicted of the stalk/intimidate intend fear (personal) charges out of a situation that occurred whilst working as a cleaner at Avalon Public School.  The applicant said he was working four-hour shifts at the School between 3pm and 7pm.  He was working between 12 and 16 hours a week and had been working at the school for between seven and eight months.  The applicant conceded he had approached the victim one to two times.  He said he was visited by the NSW Police at his home two to three months after these events.

15. The applicant claimed to the Tribunal that his journey home was the same way as the victim and he had to catch the public motor omnibus.  He claimed the victim was right in front of him and said that after finishing his day at work she was in front of him and he ended up following her.   In response to the Tribunal’s questions concerning the claim he had been standing in a dark passageway and asked the victim to come over to him, the applicant agreed he had raised a finger but claimed he was not at the time aware his behaviour was inappropriate.  He claimed the culture in India was different.  The Tribunal asked the applicant if he was aware how old the victim was.  He replied he wasn’t sure but conceded he thought she was a student.  The applicant denied leaving work early to follow the victim.

16. The Tribunal asked the applicant if he thought his behaviour intimidated the victim.  He conceded it could have but claimed he was not aware of the victim’s age and stated in his culture it was permissible to say ‘hello’ to someone.  The Tribunal asked the applicant how he thought the victim’s parents would have felt about his behaviour towards their daughter.  He said they would have been angry and would have taken steps to protect their child.

17. The applicant discussed the laying of the charge by the NSW Police.  He said he was charged at the Police Station after an interview of one to two hours.  He received Police bail.  The applicant said he didn’t have legal representation when he appeared at the Local Court and said that he was told at the conclusion of his Court appearance not to go within 200 to 300 metres of Avalon Public School.  He said he signed a document that committed him to not approach Avalon Public School for twelve months.  He claimed not to have been near the school since this time in August 2018. 

18. The applicant claimed no one ever raised the victim’s concerns with him and he was unaware until the NSW Police contacted him two to three months later.  He said that after the incidents with the victim he started to receive fewer shifts in his job at the school.  The applicant stated he had never had any interactions with the Police previously and has not had any since. 

19. The Tribunal has considered the applicant’s explanation for the circumstances in which the ground for cancellation arose and found the applicant’s oral testimony concerning the events leading to his conviction to be concerning.  Whilst acknowledging his relatively young age, the Tribunal found his explanation as to why he approached the victim to be vague and evasive.  The Tribunal has taken into account the various claims the applicant was naïve, young and immature but it is not convinced this claimed lack of ‘worldliness’ either explains or mitigates his behaviour towards the victim.   The Tribunal notes that the applicant was aware he was at a school and he was aware the victim was of school age.  He was an employee at the school.  The Tribunal does not accept that the applicant was unaware that his behaviour towards the victim was both inappropriate and indeed unlawful.  The Tribunal notes the applicant’s statement, when asked about his behaviour towards the victim,  that it was permissible to say ‘hello’ to someone in India as disingenuous and an deliberate attempt to obfuscate what is, in the Tribunal’s opinion, a serious matter.  

20. There is no evidence before the Tribunal or claim made that the applicant was suffering from any mental health issues during this period.  The applicant’s claim in essence is that he was immature and unaware that approaching the victim, a 14-year old girl, was wrong.  He has also intimated the fact he was following the victim was coincidental, claiming to live in the same direction.  The Tribunal does not on the evidence before it accept that the applicant was either unaware that his behaviour was both intimidating and threatening to the victim, and that his behaviour was unacceptable as both an adult and an employee of the school.

21. The Tribunal has considered the applicant’s attempt to explain his behaviour towards the victim with his statement claim the culture in India was different.  The applicant has provided no corroborative evidence to substantiate this assertion and the Tribunal gives the claim no weight.  The Tribunal furthermore notes that stalking is a criminal offence in India under the Indian Penal Code. 

22. The Tribunal accepts the applicant’s statement that he has no history of any other adverse interactions with the Police.  There is no evidence or claim before the Tribunal that the applicant has been in breach of the restrictions imposed after he was sentenced for the offence.  Nevertheless the Tribunal views the applicant’s behaviour – and his explanations for such behaviour – as particularly concerning.  The Tribunal has considered the circumstances in which the grounds for cancellation arose and weighs this in favour of cancelling the applicant’s visa.        

23. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether they have a compelling need to travel to or remain in Australia. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  In his written submission the applicant through his representative submitted that the purpose of the applicant’s travel to Australia was study.

24. The Tribunal noted that in his written submission in response to the NOICC the applicant had stated that his purpose was to undertake a Diploma of Business followed by a Bachelor of Business at Alphacrucis College.  The applicant said he had completed his Diploma of Business in 2018.  He said that he was not however currently enrolled in a Bachelor of Business as he had planned due to the expensive fees.  The applicant said he was currently enrolled in a Diploma of Leadership and Management at YES College in Parramatta.  He said he enrolled a month or so prior to his conviction and had paid about $4,000-$5,000 in fees for 2018.  The applicant said that he was unable to pay the fees in 2019 as he had no work rights.  He claimed to the Tribunal he was still a student there despite not paying fees.  He said he last attended the campus in January 2019.  The applicant said that he was unsure if YES college had actually cancelled his enrolment as he hadn’t received any mail confirming this.  He said he normally borrowed money from friends to pay his fees. 

25. The Tribunal found the applicant’s oral testimony concerning the status of his studies in Australia somewhat vague and confusing.  The applicant when questioned by the Tribunal whether he was currently enrolled in a course of study answered ‘NO’.  The Tribunal however notes that the applicant in his oral testimony claimed to be a student at YES College despite admitting he had not paid his fees since 2018 and last attended the campus in January 2019.  The applicant said he had a CoE but has provided no evidence of a current CoE to the Tribunal.  The Tribunal accepts the applicant is currently facing some financial hardship and gives some positive weight to the fact that the applicant completed a Diploma of Business in his studies.  The Tribunal nevertheless notes he does not on the evidence before it appear to be currently enrolled in a course of study despite the purpose of his visa being for study and education purposes.  The Tribunal on the evidence before it does not accept the applicant is currently enrolled in a course of study. 

26. The Tribunal does not consider the applicant has a compelling need to remain in Australia.  The applicant is not on the evidence before the Tribunal currently enrolled in a course of study.  The Tribunal has considered the applicant’s vague and evasive comments concerning his enrolment but is not satisfied the applicant has maintained an enrolment.  The Tribunal furthermore notes the applicant’s statement that he is unable to afford his tuition fees and is facing considerable financial difficulties.  The Tribunal is not satisfied the applicant has any compelling need to remain in Australia.  

27. On the evidence before it the Tribunal weights the consideration of the applicant’s travel to and stay in Australia and whether they have any compelling need to travel to or remain in Australia slightly in favour of cancelling the applicant’s visa. 

28. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal notes that based upon the applicant’s testimony to the hearing, the applicant has also failed to meet the requirement in a Student visa that he remains enrolled in a course of study.  The Tribunal weights this factor slightly in favour of cancelling the applicant’s visa. 

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

30. In his written submission in response to the NOICC the applicant stated that the degree of hardship would be ‘severe’ on both the applicant and his family.  The claim was made that the applicant and his family are in a ‘traumatised condition’ and cancellation would affect them drastically. 

31. In relation to his family, at the hearing the applicant stated he belongs to a middle-class family. He said his family had taken financial loans to send him to Australia to study.  He said his family had expectations that he would return with an education and set up a business in India that would make their life comfortable.  He claimed he had come to Australia to complete his education and make his family comfortable.  He said his parents’ hopes and aspirations were with him.  The applicant has one brother and sister at school ages that live in India. The applicant stated he does not have any family in Australia. 

32. The applicant said he thought his parents had spent about AUD$40,000 in total on his education in Australia. 

33. The applicant said his parents were unaware that his visa had been cancelled.  He said they  were unaware of his conviction.  He told the Tribunal that his parents think that he is continuing to study.  He said that his parents were no longer sending him money and had not done so since 2018.

34. The Tribunal asked the applicant about his current living arrangements.  He said his flatmate was looking after most of the living costs though he sometimes borrowed money from other friends to assist. 

35. In relation to hardship to himself, the applicant said he had come to Australia for a better life and to get an education.  He said he wanted after completing his education to return to India and help his family.  He said he simply wanted to complete his studies in Australia and then return. 

36. The Tribunal asked the applicant why he wouldn’t be able to study offshore if his visa was cancelled.  The applicant responded that education in India was expensive and he had always studied in an English medium.  He said he wanted to get work rights in Australia and then take all his experiences back to India. 

37. The applicant said he didn’t know whether his enrolment in the Diploma of Leadership had been cancelled or not.  He said he was still receiving assignments in the mail up until a month ago (May 2019) from YES college.  He said he last submitted an assignment to the college in last semester 2018.  The applicant said he was receiving assignments but had not paid his fees and had not attended YES College since January 2019.  He said he last submitted work to YES College in 2018.

38. The Tribunal has considered the applicant’s submissions and does not consider the hardship that may be caused to the applicant and his family is particularly onerous. 

39. In relation to his family, the Tribunal accepts that his parents will be disappointed that their son the applicant has been convicted of a criminal offence and his visa has been cancelled.  The Tribunal accepts that they will furthermore be disappointed that he has not completed more study and gained further work experience in Australia.  The Tribunal has also taken into account the applicant’s claim his parents have spent around AUD$40,000 on his studies and owe money to the bank and other relatives.  Whilst there is no evidence of financial support of this quantum, the Tribunal accepts the applicant’s parents have provided him with some support in his studies in Australia and will be disappointed that the applicant is unable to complete his studies in Australia. The Tribunal accepts they will be disappointed after investing money in their son the applicant’s future.  The Tribunal also accepts they will feel a degree of humiliation for the family.  

40. The Tribunal notes that the applicant’s family is not in Australia and notes the applicant has conceded he has no wife or partner here in Australia. 

41. The Tribunal notes that the applicant’s family can choose to support the applicant in recommencing his studies in India or elsewhere if they so wish.  That is a decision for them to make.  The Tribunal on the evidence before it considers the hardship the applicant’s family will face by the cancellation of his visa to be limited.    

42. In relation to hardship that may be caused to the applicant by the cancellation of the visa, the Tribunal accepts that the applicant will face a degree of disappointment in failing to meet his educational and potential employment goals in Australia.  The Tribunal accepts he may feel a degree of humiliation upon returning to India in such circumstances.   The Tribunal does not however consider the applicant’s feelings on such matters weigh in favour of not cancelling the applicant’s visa.    

43. The applicant has no family in Australia so he will not be facing any hardship in relation to himself leaving family members behind should his visa be cancelled.

44. The Tribunal notes the applicant’s claims that he is the hope for his parents and the weight of expectation he has in helping look after them including setting up a business for the family’s future after completing his education.  The Tribunal notes that the applicant is 21 years of age.  There is little to preclude him from pursuing further studies offshore and developing a career in India where he can provide similar assistance and support to his parents and wider family.  The Tribunal considers any hardship in this area caused by cancellation to be very limited: he still retains the ability to pursue further studies and build a career or business in India or elsewhere offshore.  English is the language chiefly used in major universities and colleges in India so he retains the ability to study in an English medium.  The applicant currently suffers from financial hardship in Australia and problems with paying his tuition fees.  The Tribunal notes if he returns to India he can both seek employment as well as being closer to his family and can seek their support to assist fund his education if they so desire. The Tribunal does not accept the claim that his future career prospects depend upon the applicant being able to complete his studies in Australia.     

1. The Tribunal has considered the issue of financial hardship.  The Tribunal notes the applicant’s claims concerning the financial hardship he is facing today and in recent times due to his lack of work rights and his necessity on relying on support from friends in Australia.  The Tribunal considers this hardship would in all likelihood be diminished if he returned home to India to his family where he can seek gainful employment and be close to his family. 

2. The applicant in his written response to the NOICC claimed that he was progressing well with his enrolled courses and had passed all the subjects/units (D1, Folio. 17).  The Tribunal notes the oral testimony of the applicant however pertaining to his current enrolment with YES College.  The applicant provided confusing oral testimony to the Tribunal in relation to his current enrolment status, claiming to still be receiving assignments but not sure whether he is enrolled or not.  The Tribunal considers the applicant would be aware whether he was enrolled in a course of study or not.  On the evidence before it the Tribunal is not convinced that the applicant is currently enrolled in any course of study.  The Tribunal considers the impact and hardship the cancellation of the applicant’s visa will have on any of his existing educational commitments to be very limited. 

3. The applicant has also raised the issue of the judicial penalty he received for his offence and has submitted that any cancellation of his visa is another penalty.  In his written submission to the NOICC it was submitted that the applicant had already been punished for his behaviour and cancellation would enhance his sufferings and hardship.  The Tribunal does not consider this to be the case.  The Tribunal notes that its review and consideration of the cancellation of the applicant’s visa relates to his conviction for an offence.  It is not additional punishment or for the purpose of imposing extra penalties upon the applicant.   The Tribunal does not consider cancellation of his visa represents the imposition of further hardship by the Tribunal through extra judicial punishment and further punishment.       

4. In relation to any hardship the cancellation of his visa will cause to the applicant and the applicant’s family, the Tribunal finds the hardship to be limited.  The Tribunal weighs this factor in favour of cancelling the applicant’s visa.     

5. 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. 

6. 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

7. 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 an s48 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.

8. The Tribunal has considered whether there are 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 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 neither in favour nor against cancelling the visa.

9. At the hearing the Tribunal noted, as outlined in the delegate’s decision record the applicant provided, that the applicant had previously submitted that subsection 116(2) should also be taken into consideration when considering cancellation. The Tribunal notes that subsection 116(2) provides that the Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exists prescribed circumstances in which a visa is not to be cancelled. At the hearing the Tribunal raised the matter with the applicant and his representative and asked if they wished to make any submissions or comments on this point. No oral submissions were made on this matter at the hearing. The Tribunal invited the applicant’s representative to make any further submissions on the matter and asked him to do so in the next week. No submissions were made in that period or indeed have been made on the matter up until the time of decision, over three weeks since the hearing. No requests for an extension were made. The Tribunal has taken into account the applicant’s written submissions in his NOICC response concerning s116(2) but nevertheless notes that no prescribed circumstances currently exist in the legislation in regards to subsection 116(2). The Tribunal gives the claim no positive weight in its consideration of its discretion not to cancel the applicant’s visa.

10. The Tribunal also noted the applicant’s previous submission to the delegate that the applicant was prepared to depart Australia to avoid his visa being cancelled under section 116(1)(g) relying on regulation 2.43(1)(oa). The applicant’s representative stated at the hearing the issue would be addressed in their written submission to the Tribunal. No written submission was subsequently made on this issue and no request for an extension was made. Almost four weeks have now elapsed since the hearing. The Tribunal notes that the applicant’s representative at the hearing did point out that a cancellation of the applicant’s visa in Australia would have a subsequent knock-on effect on any attempts to study or seek a career in other countries. The Tribunal accepts that the cancellation of his visa in Australia may impact upon future visa applications in other jurisdictions. Making an offer to voluntarily departing Australia however does not mitigate, in the Tribunal’s opinion, the ground for cancellation. The Tribunal has recognised the applicant’s offer to depart Australia to avoid a s116(1)(g) cancellation but notes policy considerations are still to be followed when a visa holder is in breach of the conditions attached to his visa. The Tribunal weights this factor neither in favour nor against cancelling the applicant’s visa.

11. The Tribunal is satisfied that the grounds for cancelling the applicant’s visa exist.  The applicant has conceded the grounds exist. The Tribunal has taken the applicant’s circumstances into account and has weighted up each of the considerations.  The Tribunal considers the behaviour of the applicant towards his victim as outlined in the delegate’s decision record supplied by the applicant grossly inappropriate and of understandable concern to the victim, her parents and indeed the school that had placed its faith in him to work in proximity to children.  The Tribunal accepts the applicant was relatively young when committing the offence but does not accept he was unaware his behaviour was inappropriate and threatening to the young victim.  The Tribunal has determined on the basis of the information before it that the visa should be cancelled. 

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

    DECISION

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

    Justin Owen
    Senior Member