Singh Poudel (Migration)

[2023] AATA 3010

Singh Poudel (Migration) [2023] AATA 3010 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Suresh Narayan Singh Poudel

REPRESENTATIVE:  Mr Dhruba Dahal (MARN: 1383851)

CASE NUMBER:  2306783

HOME AFFAIRS REFERENCE(S):          BCC2023/983617

MEMBER:David McCulloch

DATE:4 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 September 2023 at 2:15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – secondary applicant on wife’s visa – criminal convictions, community correction order, fines and apprehended domestic violence order – discretion to cancel visa – ground for cancellation conceded – circumstances of offending – one-off, uncharacteristic incident – guilty plea, mental health and treatment – full support of wife, who is continuing to study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 May 2023 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 (Cth) (the Act).

2. The applicant is a citizen of Nepal, born in 1991. The visa that was cancelled was granted on 12 January 2022 with a stay period to 9 September 2023.

3. The applicant was listed as a dependant applicant on his partner’s visa. He was not enrolled in any courses.

4. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 11 April 2023. The applicant did not provide a response to the NOICC.

5. 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.

6. The applicant appeared before the Tribunal on 1 September 2023 at 9.30am to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, Ms Sushma Baraily. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

7. The applicant was represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   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 (Cth) (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 indicate that the applicant was convicted of ‘Actual offence – Assault occasioning actual bodily harm (DV)-T2’ and ‘Actual offence – Common Assault (DV) – T2’ on 14 February 2023 at Manly Local Court. The applicant was convicted and sentenced to a community correction order for a period of 12 months, commencing on 14 February 2023. He was ordered to pay $900 in total in fines.

12. In the hearing the applicant acknowledged the convictions and sentence.

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 s 116(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, and 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 following is a summary of the New South Wales Police Facts Sheet dated 7 February 2023, which outline the charges against the applicant. At around 12:00am on 7 February 2023 the applicant and his wife (the victim) were in bed together when the victim questioned what the applicant had been smoking. The applicant became agitated and pushed the victim. The couple got into a verbal argument and the applicant pushed the victim twice. On the second push, the victim fell and sustained swelling to her ankle. The applicant then slapped the victim on her face with an open palm. The victim attempted to call the applicant’s father; however, the applicant grabbed her phone and threw it. The applicant pushed the victim with two hands, which caused her to fall. The applicant then proceeded to grab the victim by her hair and pull her onto the floor. The victim left the unit and a neighbour called 000. Police attended the scene wearing body cameras and the victim showed them where she had been assaulted. Police entered the applicant’s apartment, and he was arrested and cautioned at the scene. The applicant was not offered an opportunity to participate in a recorded interview due to his intoxication.

16. The Tribunal at the hearing put the information in the Police Facts sheet to the applicant pursuant to the procedural requirements of s 359AA of the Act. The Tribunal indicated that the information was relevant because it indicates, in the context of the conviction, violent conduct by the applicant toward his partner. The Tribunal put to the applicant that the consequence of relying on the information could be to conclude that the applicant had obviated his right to be in Australia holding the student visa.

17. The Tribunal indicated that it would take into account the following various written submissions, psychological reports, documents and supporting statements by the applicant and others provided in advance of the hearing:

    ·Legal submissions prepared by the applicant’s representative.

    ·Statutory Declaration by the applicant dated 20 July 2023.

    ·Community Correction Order dated 14 February 2023.

    ·Final Order – Apprehended Domestic Violence issued to the applicant, ending on 13 February 2025.

    ·Counselling Psychological Mental Health and Medical Assessment by Rajesh Prasad dated 29 June 2023. The report states the applicant has been attending ongoing sessions since 29 June 2023. The diagnosis for the applicant is stress, depression and anxiety. The report states that the applicant is undergoing treatment and undertaking programmes to support his mental health and addiction to alcohol.

    ·A certification from the Australia Red Cross stating the applicant donated blood on 23 May 2023.

    ·A character reference from Menuka VK, the applicant’s cousin, dated 6 July 2023. The letter states the applicant had financial problems back home, which caused him to be mentally stressed. It also states that the applicant has been a good husband to his wife. The applicant’s cousin attests that the applicant promises he will not make the same mistake again.

    ·A character reference from Puspha Lamichane, the applicant’s team manager and friend, dated 4 July 2023. The letter states the applicant is a helpful, supportive, caring and respectful person. It further states that the applicant expressed a deep sense of remorse.

    ·A character reference from Shree Napit, Patron of Northshore Nepalese Community, dated 23 July 2023. The reference letter confirms the applicant has volunteered for various Nepalese Community programs. The letter attests that the applicant will correct his behaviour if given the chance to do so.

    ·A character reference from Lesila Puafisi, the applicant’s store manager, dated 1 July 2023. The referee states they have known the applicant since March 2022, and since then they have known the applicant to be punctual, hardworking and polite, and a valuable member of society.

    ·A character reference from Sushma Baraily, the applicant’s wife, dated 25 July 2023. It states that Ms Baraily and the applicant have known each other for over nine years, and they have been married since 3 December 2017. Ms Baraily states that the applicant is not an offensive person, and his behaviour on the night of the incident was unexpected. The applicant’s wife states the applicant has never been involved in violence, and at the time of the incident he was experiencing financial issues, which the applicant acknowledges did not excuse his actions. The applicant’s wife further states the applicant is undertaking counselling and anger management counselling once a week. The applicant has the full support of the referee.

18. Written submissions and the applicant’s written statement indicate remorse by the applicant for contravening New South Wales laws. They state that he realises the seriousness of the conduct. He is serving the punishment that has been given. The actions were a result of the applicant’s anger and alcohol use, which caused him to disregard his wife’s dignity and personal integrity. The applicant has committed to controlling his anger and has undertaken psychological counselling, evidence of which is provided. Relevant courses have been completed. The applicant is a first-time offender and entered a guilty plea for the charges.

19. It is submitted that the applicant’s wife had never had any prior issues with the applicant, and this was a one-off incident. This has been confirmed by the applicant’s wife. Apprehended Violence Orders were amended to allow the applicant to live with his wife.

20. It is submitted that there is a hardship if the visa remains cancelled in terms of family unity, in that the applicant and his wife would be separated. The applicant’s wife is currently studying in Australia and is determined to achieve a career in her field of studies here before returning to Nepal. Cancellation of the applicant’s visa will significantly affect her mental health and impede her studies. The applicant provides physical, mental, emotional, psychological and financial support to his wife.

21. It is submitted that the applicant has always otherwise complied with visa conditions and been cooperative and truthful in communications with the Department. The guilty plea of the applicant shows he has respect for Australian laws.

22. The applicant was given the opportunity in the hearing to provide any oral comments or to elect to provide further written information after the hearing. In response the applicant indicated the importance of the Tribunal’s decision in relation to the future of the applicant and his wife.

23. The applicant gave evidence in the hearing taking responsibility for what occurred when the argument escalated and he acted out of control, his behaviour being exacerbated by alcohol. He indicated that what had happened would not be repeated again.

24. Ms Baraily, the applicant’s wife, gave evidence at the hearing. She indicated that since her arrival in Australia in April 2019, she had successfully completed the following studies:

    ·Graduate Diploma of Management.

    ·Certificate IV in Commercial Cookery.

    ·Diploma of Hospitality Management.

25. Evidence was provided of completion of these courses, with the last course only being completed in the last couple of weeks. Ms Baraily indicates that she is currently working as a chef and wants to apply for a Subclass 485 graduate work visa. She wishes to gain relevant work experience in Australia for about two years before returning to Nepal.

26. She indicated the degree of hardship if the applicant’s visa remains cancelled in terms of the potential separation from the applicant given her desire to obtain relevant work experience before returning to Nepal.

27. The Tribunal accepts that there would be quite considerable hardship for the applicant’s wife, either in terms of her having to remain in Australia working without the financial, emotional and psychological support of her husband, or alternatively deciding to return to Nepal with her husband and cutting short her desired work experience in Australia. The Tribunal accepts the evidence of the applicant’s wife that the violent action by her husband was uncharacteristic and a one-off event.

28. This weighs significantly against exercising the discretion to cancel the visa. In this respect, the applicant’s wife was the victim of the assault by the applicant and the continued cancellation of the applicant’s visa would compound her suffering as a result of the assault.

29. The applicant has taken responsibility for the assault and the Tribunal accepts that he is genuinely remorseful and has taken remedial steps to seek to rectify the behaviour, including seeing a psychologist and taking steps to combat alcohol abuse.

30. The Tribunal also takes into account in the applicant’s favour various supporting references provided as to his activities and character.

31. Not insignificantly adverse to the applicant are the factual circumstances leading to the correction order and the violent action by the applicant towards his wife. However, the Tribunal considers that the various circumstances above outlined in his favour, including genuine remorse and remedial actions taken, and the significant hardship that would be suffered by the victim of the assault, the applicant’s wife, outweigh the matters adverse to the applicant.

32. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member