Singh (Migration)

[2019] AATA 3997

Singh (Migration) [2019] AATA 3997 (19 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anoop Partap Singh

CASE NUMBER:  1904805

HOME AFFAIRS REFERENCE(S):           BCC2018/3822677

MEMBER:Jason Pennell

DATE:19 June 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 19 June 2019 at 12.50pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – criminal offences – risk to the community – no remorse – poor academic history – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 116

CASES

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 27 February 2019 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) on the basis that the applicant 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. 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 13 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, Ms Ravneet Kaur.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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

1. 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.

2. The applicant was born on 5 October 1990 in Mullanpur Dakha, Punjab, India. The town of Mullanpur Dakha, also known as Mandi Mullanpur, and is located in the Ludhiana district in Punjab, India. The applicant claimed that his father passed away in 2006 and worked as a government employee for the Food Marketing and Production Board. The applicant’s mother continues to live in India. By her affidavit dated 15 June 2019[1] she states that the applicant’s father died in 2002. She says that she lives in Bhai Ranhir Singh Nagar, Ludhiana, Punjab, India and that she is currently working as a supervisor in Mullanpur for an Indian Government Agricultural Enterprise, Committee Food Corporation.  

   [1] Affidavit of Kamal Jeet Kaur sworn on dated 15 June 2019 at Ludhiana, Punjab, India.

3. The applicant has two sisters, both of whom live in Australia.  The applicant currently lives with one of his sisters, Ms Ravneet Kaur and her husband, Mr Rakeesh Mathur. The applicant assists his sister’s family by caring for his three year old nephew and Mr Mathur who is on dialysis. The applicant is not married.

4. The applicant attended school in his local village until year 10. He then attended Punjab Agricultural University (PAU) for the final two years of high school. The applicant’s evidence was that he then obtained an Automobile Diploma from Lala Lagpat Rai College in Moga Punjab.     

5. The applicant did not work in India.

6. On 27 May 2014 the applicant was granted a Student (subclass573) visa to complete a package of courses leading to a Bachelor of Business (Marketing Management) from the University of Canberra. On 6 August 2014 he arrived in Australia.

7. The applicant evidence was that he did not attend the University of Canberra but rather travelled to Melbourne and completed an English course at Holmesglen College. He then attended Holmes College and enrolled in a Certificate III and Certificate IV course, which he failed to complete. The applicant said that he was not happy with the standard of tuition at Holmes College. As a result, he enrolled in Boston College for the Certificate III and IV course which he completed in 2017. The applicant then enrolled in a Diploma of Hospitality and was due to complete the course in March 2019 upon which he his evidence was that he intended to commence a Bachelor of Business.

8. Information was made available to the Department that on 28 September 2018 that the applicant was charged with two counts of sexual assault and two counts of unlawful assault (‘the criminal offences’). The applicant was summons to appear at the Dandenong Magistrates court on 7 March 2019.

9. By a Notice of Intention to Consider Cancellation dated 8 February 2019 (‘NICC’) the applicant was informed that it had come to the delegate’s attention that there appeared to be grounds for cancellation of the applicant’s student visa under section 116 of the Act. The applicant was invited to comment and to provide any relevant evidence as to why he thinks the grounds for cancellation does not exist or why he thinks it should not be cancelled.

10. In response to the NICC the applicant provided the delegate with a statement dated 15 February 2019 (‘the statement’) together with a statutory declaration made by Ms Raveet Kaur dated 14 February 2019, a statutory declaration dated 15 February 2019 by Ms Helen Nettlefold, letter from the Renal Transplant Team at Monash Health dated 8 February 2019 to Mr Rakeesh Mathur and correspondence for Eastern Health in relation to Mr Mathur medical condition. In the statement the applicant admits and confirms to the delegate that he was charged with the criminal offences but denies he committed the criminal offences as alleged.     

11. By a Notification of Cancellation dated 27 February 2019 the delegate advised the applicant that his Student visa had been cancelled.  

12. On 3 June 2019, the applicant pleaded guilty to one charge of sexual assault at the Dandenong Magistrates Court. The Court found one charge of sexual assault proven and, without conviction, ordered that the applicant serve 150 hours of community work upon his release from immigration detention.

Does the ground for cancellation exist?

s.116(1)(e) - risk to Australian community or individual

1. A visa may be cancelled under s.116(1)(e) of the Act 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,[2] or the health or safety of an individual or individuals.[3] 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.[4]

   [2] s.116(1)(e)(i) of the Act

   [3] s.116(1)(e)(ii) of the Act

   [4] Gong v MIBP [2016] FCCA 561, at [41]

2. The expression ‘good order of the Australian community’ is not defined in the Act. However, in Tien v MIMA (1998) 89 FCR 80 the Court considered an earlier version of s.116(1)(e), and held[5] 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.

   [5] Tien v MIMA (1998) 89 FCR 80 @ 94

3. On 28 September 2018 the applicant was charged with two counts of sexual assault and two counts of unlawful assault (‘the criminal offences’). The applicant was summons top appear at the Dandenong Magistrates court on 7 March 2019.

4. On 3 June 2019, upon receiving the applicant guilty plea, the Dandenong Magistrates Court, without conviction found one charge of sexual assault proved and imposed a community correction order, that the applicant serve 150 hours of community upon his release from immigration detention.

5. For these reasons, the Tribunal is satisfied that the ground for cancellation pursuant to s.116(1)(e)(i) of the Act does exist. 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

1. 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’.

2. At the hearing the applicant’s representative provided submissions to the Tribunal.[6] In addition by an email dated 17 June 2019 the applicant made further submissions together with statutory declarations by Rakeesh Mathur, Rakesh Rawat and Gurpratap Singh and Ravener Kaur in support of his application for review. In this decision the Tribunal has taken into account each of the statutory declarations, in particular their comments as to the applicant’s good character.   

The purpose of the visa holder’s travel and stay in Australia.

[6] Applicant’s submission dated 11 June 2019

1. On 27 May 2014 the applicant was granted a Student (subclass 573) visa to complete a package of courses leading to a Bachelor of Business (Marketing Management) from the University of Canberra.

2. The applicant’s evidence to the Tribunal was that the purpose and intention of traveling and staying in Australia was to study a Bachelor of Business (Marketing Management) from the University of Canberra.

3. The Tribunal questioned the applicant as to why he did not commence the Bachelor of Business course in Canberra. He stated that the course was too difficult and as such he enrolled in the certificate courses on Melbourne in order to be close to his family.

4. The applicant claims that he has ‘consistently and successfully completed his studies in Australia.’[7] He states that he has successfully completed the Certificate III and Certificate IV level courses and that he only has two units remaining before attaining his qualification.[8] However, the Tribunal notes that the applicant failed the certificate courses and switched education providers before completing them. The Provider of Registration and International Student management System (PRIMS), the Department of Education and Trainings database for overseas student enrolments, indicates that the applicant was not due to complete the Diploma of Hospitality until 3 March 2019. Nevertheless, the applicant claims he has substantially completed a Diploma in Hospitality, which, he claims, represents part of the package of courses required for him to enrol in the Bachelor of Business. The Tribunal was not provided any evidence that the Diploma of Hospitality was part of the package of courses leading to a Bachelor of Business or that he would be credited for any subjects completed in the Diploma course as part of the Bachelor of Business. 

   [7] Applicant’s statement dated 15 February 2019. AAT File No 1904805 @ f.39

   [8] Applicant’s submissions to Tribunal dated 11 June 2019.

5. In response to the NICC, the applicant stated that part of his ongoing purpose of his stay was to be able to provide support to his sister who he claimed was going through a difficult period in her life due to her husband’s illness. The applicant states[9] that he has the responsibility of caring for his three year old nephew and helping his brother in law who is on dialysis.  He claims that his sister is the only breadwinner in her family and is able to sustain full time employment due to the fact that he helps to look after the family. The Tribunal accepts the applicant’s evidence in relation to the domestic assistance he provides to his sisters family. In fact, taking into account the applicant’s poor academic history it appears the applicant has been more concerned for caring for his sister’s family rather than concentrating on his studies.

   [9] Applicant’s submission dated 17 June 2019

6. Nevertheless, the Tribunal is satisfied that the applicant’s intention at the time of his visa application was to travel and stay in Australia to study. As such, the applicant’s intention at the time of his visa application does not constitute a reason to cancel his visa. Accordingly, the Tribunal has given some weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to study.

The extent of compliance with visa conditions

1. The applicant claims that he has always complied with the conditions of his student visa. However, the grant of the Student visa includes the condition that condition 8516 must be imposed. Condition 8156 states that:

   ‘The holder must continue to be a person who would satisfy the primary and secondary criteria, as the case requires, for the grant of the visa.

2. The applicant was granted a Student visa to study a package of courses leading to a Bachelor of Business (Marketing Management). However, PRIMS indicates that since 30 June 2015, the applicant has not maintained enrolment in a registered course of study at a higher education sector level, as required by the Student visa granted to the applicant. The applicant claimed that the Diploma of Hospitality was part of the package of courses required in order for him to enrol in the Bachelor of Business. As such, he intended to enrol in the Bachelor of Business upon completion of his Diploma course. However, it seems illogical and unnecessary to have commenced the Diploma course in circumstances where he had completed the Certificate III and Certificate IV courses necessary to enrol in the Bachelor of Business course. Therefore, in the absence of any evidence to support his claim, the Tribunal does not accept that the Diploma course was part of the package of courses required for the applicant to enrol in the Bachelor of Business. In addition, given his poor academic history and the fact that he enrolled in the Diploma course in circumstances where it appears he has completed the necessary prerequisites to enrol directly in the Bachelor of Business degree, the Tribunal has great reservations that he has any intention of completing the Bachelor of Business as claimed. 

3. Nevertheless, there was no evidence before the Tribunal to indicate that he had not complied with the other conditions of his Student visa. Accordingly the Tribunal gives some weight in the applicant’s favour in consideration of this factor.

The degree of hardship that may be caused

1. The applicant’s evidence was that in the event his visa was he would suffer hardship by not being able to complete his studies in Australia. The applicant’s evidence was that he was very close to completing his Diploma of Hospitality and that it would prevent him for going onto to study his Bachelor of Business Degree. The applicant’s evidence was that he initially had difficulty in completing the Certificate III and Certificate IV courses. He said that having been introduced to the hospitality trade by his brother in law he decided to take a course of study, being the Diploma of Hospitality, which was more suitable to him. While the Tribunal accepts that the applicant will suffer harm if his Student visa is cancelled by not being able to finish his Diploma of Hospitality, the Tribunal notes that he has gain experience working in the industry while he has been in Australia. As a result the Tribunal gives this consideration little weight.  

2. In addition, he says that his family have paid a lot of money for him to study in Australia. The Tribunal accepts that his family may have paid for his education in Australia which may have caused them financial hardship and that he would be embarrassed and ashamed in the event he was to return to India without having completed his course. However, the Tribunal notes that the applicant has contributed to his family’s financial hardship by not initially completing the Certificate III and Certificate IV courses. While the Tribunal accepts that he will be embarrassed and ashamed for not having completed his studies he still has the option of applying himself to his studies in India. While the applicant claims that the standard of education in India is relatively poor, nevertheless there are many Universities in India that offer Bachelor of Business degrees to which the applicant may be able to be credited for the study he has undertaken in Australia.  He is still relatively young and can afford to take the extra time to gain the necessary qualification for university entrance in India if required.  As a result the Tribunal gives this consideration little weight.

3. The applicant says that he will be shamed in the eyes of his family and his community in the event that he is forced to return to India. He says that he wishes to return to India and get married. As a result of him failing to complete his studies and having been found guilty of the criminal offence he will be less desirable to any potential wife in India. However, in circumstances where the applicant pleaded guilty to the criminal offence and was aware of the visa conditions, the Tribunal places little weight on the applicant’s evidence as to the hardship he may suffer in the future. Having known the conditions of his visa the applicant would have reasonably known that breaching the visa conditions would impact on his eligibility to continue as a student in Australia. Therefore, while Tribunal recognises that the applicant may suffer social and financial hardship as a result of his visa being cancelled, it places no weight on this consideration as it is a necessary consequence of the applicant having breach condition s.116(1)(e) of the Act.

4. Finally the applicant says that he has family responsibilities in Australia. He says that his sister and her husband are dependent on him for family support. The Tribunal accepts the applicant’s evidence in relation to the support he provides to his nephew and brother in law. However, the applicant claims that it has always been his intention to return to India. In addition, a condition of his Student visa is that he returns to India upon completion of his studies. In such circumstances, the applicant’s stay in Australia was always for a limited time requiring his sister’s family to make alternative arrangements in relation for the support currently provided by the applicant. As a result the Tribunal gives this consideration little weight.

The circumstances in which the grounds for cancellation arose

1. Information was made available to the Department that on 28 September 2018 the applicant was charged with two counts of sexual assault and two counts of unlawful assault (‘the criminal offences’). The applicant was summons to appear at the Dandenong Magistrates court on 7 March 2019.

2. In the applicant’s statement in response to the NICC he confirmed that he had been charged with the criminal offences but denied the allegations made against him.  Nevertheless, the applicant pleaded guilty to one charge of sexual assault. As a result, the applicant was found guilty of the offence and, without conviction, a community corrections order was imposed by which he was ordered to serve 150 hours of community upon his release from immigration detention.

3. The Tribunal explained to the applicant by pleading guilty to the offence he had accepted the circumstances in which the charge was made against him. The applicant said that he understood that but insisted that in circumstances in which he was charged with sexual assault ‘happened by a huge misunderstanding and with mutual consent and attraction.’[10] He said that he pleaded guilty to the criminal offence because of the cost and time of defending the charges in Court. Despite claiming in his submission dated 17 June 2019 that he feels remorseful and shame for the incident,[11] during the course of the hearing the applicant continued to deny the charges and showed no remorse for any harm that may have caused the victim. The applicant claimed that he was not a risk to the community and referred to the fact that he had no previous criminal convictions and that he had received a community based order without conviction.

   [10] Applicant’s submission dated 17 June 2019.

   [11] Applicant’s submission dated 17 June 2019

1. The delegates decision included a summary of the alleged facts as provided to the Department.[12]  It stated that the victim was an 18 year old female from Nepal who had limited English. The victim had advertised for casual employment as a house cleaner on Gumtree. The applicant responded to the victim’s advertisement and requested that she attend his home for an interview. When the victim arrived at the applicants home he invited her in and to sit on one of the two beds located in the front room of the applicants home. The victim sat on one bed and the applicant on the other. The applicant then took the victims hand and kissed it.[13]

   [12] Delegate’s decision dated 27 February 2019 @ p.5; AAT File 1904805 @ f16

   [13] Delegate’s decision dated 27 February 2019 @ p.5; AAT File 1904805 @ f16

2. After talking for a short time the victim then stated that she was there for a housecleaning job and asked the applicant if there was a real job. The applicant said it was but stated that he wanted to become friends first before talking about the job.  The applicant then invited the victim to sit with him on his bed and kissed her on the mouth. The victim pushed the applicant and stood up. To which the applicant stated ‘These sort of things are normal in Australia and police don’t care.’[14]

   [14] Delegate’s decision dated 27 February 2019 @ p.6; AAT File 1904805 @ f15

3. The victim stated that she wished to leave but the applicant continued to try and convince her to stay by saying that ‘he only wanted to have a friendship with her.’ After a short time the victim walked toward the door with the intention of leaving. The applicant stated ‘Ok go. But I want to kiss you one last time.’ The applicant then grabbed the victim and hugged her. The accused then took the victim’s hand again, pushed her against the wall and kissed her twice on the mouth.[15]

   [15] Delegate’s decision dated 27 February 2019 @ p.6; AAT File 1904805 @ f15

4. The applicant claimed that the he had kissed the victim by mutual consent. However, having pleaded guilty to the charges the applicant accepted the statement of alleged facts as described in the delegate’s decision.  Having invited a young female with limited English to his home for a job interview, the applicant has demonstrated behavior of an opportunistic and predatory nature in which his intention was to dominate and exert power over the victim. The applicant states that the events that took place between him and victim were by mutual consent. However, there was no evidence in the in the statement of alleged facts by which it can be said that the victim consented to the applicant’s advances toward her.  As such the Tribunal does not accept the applicant’s evidence that his actions toward the victim were by mutual consent. In fact the applicant’s actions toward the victim display a complete lack of regard for her safety or wellbeing and a flagrant disregard and lack of respect for the Australian law.  

5. Notwithstanding the fact that the applicant has received a relatively light sentence in relation to the criminal charges, they remain serious charges. While the applicant has presented to his family and friends as personable and of good character, his actions were opportunistic and predatory nature and showed a flagrant disregard for law. As a result, the Tribunal is of the view that there is an element of risk that the applicant’s presence in Australia might be disruptive to the observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.[16] Accordingly, the Tribunal finds that the applicant 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 pursuant to s.116(1)(e)(i) of the Act.

Past and present behaviour of the applicant

[16] Tien v MIMA (1998) 89 FCR 80 @ 94

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

DECISION

1. Having considered the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.  Therefore, the Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Jason Pennell

Senior Member