Thakur (Migration) - [2022] AATA 752

Thakur (Migration) [2022] AATA 752 (22 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kush Thakur
CASE NUMBER:  2109013
HOME AFFAIRS REFERENCE(S):          BCC2020/2854248
MEMBER:Brendan Darcy
DATE:22 February 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 22 February 2022 at 12:53pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – secondary visa holder to wife’s primary visa – criminal convictions and community correction order – adverse information – separation from wife – discretion to cancel visa – state of relationship and applicant’s financial and emotional support of wife – no supporting evidence from wife or post-hearing submissions from applicant – potential distress and hardship – circumstances of offences and legal proceedings – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 359AA, 376
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
CASES
MIMA v Eshetu (1999) 197 CLR 611
Ngaronoa v MIAC [2007] FCA 1565; (2007) 244 ALR 119
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 July 2021 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).
The delegate cancelled the visa under s 116(1)(g) on the basis that there were grounds for the cancellation under the prescribed grounds at reg 2.43(1)(oa) of the Migration Regulations 1994 (the Regulations); and because the delegate was not persuaded the visa should not be cancelled. The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 January 2022 to give evidence and present arguments, via an internet-enabled audio-visual platform. The Tribunal also received oral evidence from the applicant’s brother, Gagan Thakur (DOB: 25 November 1981).
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by a legal practitioner from Asky International Lawyers.
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
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?
Section 116(1)(g) – prescribed ground
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 Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant, which states:
(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder 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));
Background
The applicant is a male citizen of the Republic of India and was born on 13 July 1985 in India.
He arrived in Australia on 4 June 2019 while holding a visitor visa.
The applicant applied for a Class TU (Subclass 500) visa while holding a visitor visa and was granted the student visa on 22 October 2019 for the purposes of remaining in Australia with his spouse, Jaspreet Thakur, who was enrolled in full-time studies.
The visa was set to expire on 24 June 2022.
According to the decision record, it came to the attention of the Department that the applicant was convicted of the following offences on 26 March 2021 at Broadmeadows Magistrates’ Court in the State of Victoria:
·Two charges of unlawful assault; and
·Wilful damage of property.
The offending occurred on or around 24 May 2020.
At the scheduled hearing, the applicant informed the Tribunal that he had pleaded guilty to the offences. The applicant was penalised with a Community Correction Order for 12 months to perform 150 hours of unpaid community work. The condition started on 26 March 2021.
The applicant received a Notice of Intention to Consider Cancellation (NOICC) on 25 May 2021. The letter invited the applicant to comment on the grounds for cancellation and the reasons his visa should not be cancelled, and to do so by 28 June 2021, after being granted an extension of time.
The applicant provided a written response on 28 June 2021 via his appointed legal practitioner from Asky International Lawyers to act on his behalf in relation to the consideration of this visa cancellation. The response to the NOICC the visa holder provided included the following:
·A submission from his representative from Asky International Lawyers;
·A statutory declaration signed by the applicant dated 26 June 2021;
·A letter of support from the applicant’s friend, Vikas Arora, dated 28 June 2021;
·A letter of support from his employer Sahib Group Pty Ltd dated 26 June 2021;
·A letter of support from the applicant’s co-worker Jagdeep Singh dated 27 June 2021;
·A letter of support from the applicant’s friend, Kartar Singh dated 27 June 2021;
·A statutory declaration from the applicant’s brother Gagan Thakur dated 26 June 2021; and
·A statutory declaration from the applicant’s sister-in-law (both his brother’s wife and his wife’s sister) Manpreet Thakur dated 27 June 2021.
In the written response, the applicant agreed that the above cited convictions were records against his name and that he provided claims in relation to the circumstances in which the grounds for a cancellation decision arose. It further mentions that the applicant was seeking legal assistance to appeal the conviction at the Melbourne County Court.
In his statutory declaration, the applicant admits to the non-compliance as outlined in the NOICC. The applicant further submits the circumstances arose because he and his wife had a heated argument, she contacted the police and they subsequently sought an intervention order against him, against their wishes. He was subsequently charged for unlawful assault and causing wilful damage to the property.
The delegate acting on behalf of the Minister proceeded to cancel the applicant’s visa on 8 July 2021. In the applicant’s decision record, the delegate states the grounds for the cancellation were made out. The decision record also states that there was no information before the delegate to suggest the process of an appeal had commenced.
The applicant validly applied to the Tribunal for review of the cancellation decision on 14 July 2021, with the cancellation notice and decision record attached to the review application.
The Tribunal did not receive any legal submission or relevant documents with regard to the grounds for cancellation prior to the hearing.
The Tribunal raised with the applicant at the hearing the following statements in his 26 June 2021 statutory declaration (unedited):
The police sought an intervention order against our (the applicant’s and his then spouse’s) wishes not to apply for (an) intervention order.
I was unaware about the Australian legal system and the Court procedure to deal with such (a) scenario. I did not ake any legal advice before appearing in the Court. In (the) absence of legal advice, I was unable to express my side of the story to the Honourable Court and on or around March 2021, an order for conviction has been made against me.
I am currently seeking legal advice to appeal the orders against me wit the Country Court Melbourne.
I have also successfully followed the community correction orders and no incdent occurred aft the incident of May 2020.
My wife and I have resolved our all (sic) issues and enjoying life together.
On 24 January 2022, the Tribunal received a further legal submission. As discussed in the hearing, there is no mention of any appeal being lodged or pending to overturn the criminal convictions.
During the hearing, the applicant provided oral evidence that he was convicted of the offences outlined in the NOICC. The criminal convictions were against laws issued by an Australian State which is a prescribed ground for cancellation as outlined in reg 2.43(1)(oa). In a written statement, the applicant claimed he pleaded guilty because he did not understand the charges against him due to a lack of legal counsel.
At the hearing, the Tribunal enquired whether the applicant was provided an interpreter and whether he had been allocated any legal representation or support. The applicant responded that an interpreter was provided as well as legal representation. The applicant added his legal counsel assisted him by having the number of community service hours reduced as part of his penalties.
The Tribunal enquired if he has lodged an appeal to date, and, if so have the convictions been overturned to date. He said that he had not appealed the convictions to date. He said he had not done so claiming variously emotional distress, a lack of knowledge, a lack of financial capacity and because he had a number of physical injuries. The Tribunal said if the convictions were not quashed, then it would be likely that it would find the grounds for cancellation exist. The applicant responded that it was his intention to appeal. The applicant’s representative said that the applicant has been advised he can appeal but there is no application pending.
During the hearing, the Tribunal put to the applicant the gist of information that was subject to a non-disclosure certificate issued under s 376 of the Act. The signed non-disclosure certificate was dated 20 July 2021 and was placed on the Tribunal’s file. It states the disclosure of this material would be contrary to the public interest because to disclose it may enable a person to ascertain the existence or identity of, a confidential source of information, and the provider of the information has not consented to the disclosure of the information.
A copy of the certificate was provided to the applicant and his representative for comment. Of particular relevance to establishing whether the grounds for cancellation under s 116(1)(g) were made out had been information pertaining to a criminal check by the Australian Criminal Intelligence Commission indicating that the applicant was charged with the offences outlined above.
The gist of the other information was also put to the applicant:
a)    Information that has been disclosed by a third person who contacted the Department in late 2020 claims the applicant and his wife are separated leading to divorce. It also indicated that the applicant’s wife was not residing in the applicant’s residence;
b)    The Tribunal also has obtained a record pertaining to the applicant’s claimed spouse from the Integrated Client Services Environment (or ICSE). Access to ICSE allows Tribunal officials to read records and interactions of applicants/visa holders with the Department of Home Affairs. The record indicates that the applicant’s wife has not informed the Department about any change of circumstances since she last indicated to the Department a change to her marital status and her residence at some time in 2020;
c)    In a written statement dated 26 June 2021 provided to both the Department and the Tribunal and in the applicant’s oral evidence, the applicant stated that he and his wife have reconciled and that his current marital status was married, and his wife resides with him at his Craigieburn address;
d)    At this hearing, the Tribunal also received written statements dated 26 June 2021 and oral evidence from the applicant’s brother that the marriage has not broken down;
e)    The Tribunal notes the applicant’s claimed spouse has not provided any written or oral evidence that she has reconciled with the applicant after a family violence incident or that she resides with the applicant;
f)     As the Tribunal has already explained to the applicant providing evidence that is not credible invites the Tribunal to consider other evidence may not be credible.
It was explained to the applicant why this information was relevant and that, subject to any comment or response the applicant makes, it would be the reason, or a part of the reason for affirming the decision that is under review. The applicant and his representative were provided with a natural justice break to discuss how to proceed. When the hearing resumed, the representative explained that the applicant will respond in writing.
At the end of the hearing, the applicant was provided with an opportunity to provide any further information to support his overall claims discussed in the hearing, including the information that was put to him as adverse information, and to do so by 8 February 2022. Right up to the time of making this decision, the Tribunal has not received any submissions or comments, either from the applicant or by anyone acting on the applicant’s behalf.
The Tribunal is satisfied the applicant had a fair opportunity to comment on the validity of the abovementioned non-disclosure certificate as well as the adverse information put to him. The Tribunal is satisfied the non-disclosure certificate was validly issued.
The evidence before the Tribunal is that the applicant has been convicted of three criminal charges: two charges of unlawful assault and one charge of wilful damage of property. The convictions and the penalty for the offending were issued on 26 March 2021 by a magistrate in the State of Victoria. They related to offending that occurred on or around 24 May 2020. There is no evidence the applicant has an appeal pending or that the convictions in question have been quashed.
Overwhelmingly the evidence is that the applicant, as a student visa holder, had been convicted of an offence against a law of a State, which is a prescribed ground for cancellation set out in reg 2.43(1)(oa) for the purposes of s 116(1)(g).
Based on 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
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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’.
The purpose of the visa holder’s travel to and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
In 2017, the applicant first travelled to Australia with his spouse, Jaspreet Thakur, and his two children, on visitor visas. They returned to his country of nationality without overstaying their visas.
The applicant and his spouse returned to Australia as visitor visa holders on 4 June 2019. As visitor visa holders, the applicant’s wife applied for a student visa with the applicant attached as a secondary or subsequent applicant. On 22 October 2019 for the purpose of remaining in Australia with his spouse, the applicant was granted a student visa while his wife studied on a full-time basis.
According to the applicant, his wife was studying commercial cookery. The applicant’s children remained in India where they were schooling. Due to the impact of Covid-19, neither parent was able to return to India to visit their children. The applicant claimed he worked in delivering goods within the limited work condition (8104) imposed on his student visa.
During the hearing, the Tribunal enquired into his current marital status. The applicant claimed that they are not living together, but they are not formally divorced. He said that he had last talked to his spouse three to four months ago. The applicant claimed his children live with their maternal grandparents. However, he and his spouse intend to live together. The Tribunal enquired whether the applicant and his spouse were attending couples’ counselling. The applicant said he was not but his brother and his sister-in-law have been counselling them to help them reconcile. The Tribunal asked if the applicant’s spouse was aware of the hearing, to which the applicant stated that she was not and that his spouse needed more time, arising from stress. The Tribunal enquired whether she had not provided any supportive evidence to date because she fears the applicant. The applicant said that was not possible.
The Tribunal enquired whether the applicant’s written statement was accurate when he wrote in June 2021 that he had reconciled with his wife. The applicant attempted to qualify the statement saying it was accurate but they were giving each other time to reconcile by living separately.
The Tribunal notes that the applicant’s brother (the witness) provided oral evidence at the hearing. He claimed that the applicant and his wife resolved their marital difficulties or issues. The witness claimed they have a great future together and wish to remain here permanently if the law permitted it. When the Tribunal pressed the witness about whether he and his wife were residing at the same household as the applicant and his spouse’s residence in Mickleham (to where they have recently moved), the witness said the applicant’s wife was living in the same area and that they meet each other regularly so as to give each other time and space to eliminate any misunderstandings.
As discussed in paragraph 30, the Tribunal put to the applicant information that would be the reason or part of the reason for affirming this decision. It was specifically put to the applicant that it appeared the applicant’s spouse had not been residing with the applicant and there was no written or oral evidence from the applicant’s spouse to support his claims. The applicant undertook to provide a response to the information put to him under s 359AA after the hearing. The Tribunal has not received any responses, including a request for an extension of time.
Had there been a reconciliation whereby the applicant’s spouse shared the same residence or whereby a reconciliation was underway, it would have been reasonable for the applicant’s spouse to provide some supportive oral or written evidence in favour of this claim. Not doing so has undermined the credibility of the applicant’s critical claim that there was a compelling reason for the applicant to remain in Australia to support his spouse on the basis of a marital reconciliation being reached to a satisfactory degree of union or that such a meaningful reconciliation was underway. The Tribunal accepts marital reconciliations, especially when they involve children, are not implausible. However, the plausibility of such reconciliation is significantly diminished whereby domestic violence has been perpetrated against a spouse. Moreover, the couple have never undertaken any counselling overseen by any professional, such as a relationship counsellor. The applicant admitted he had not spoken to his wife for three or four months. There is also evidence from a third party that the relationship was not only over but leading to a divorce. Based on these numerous credibility concerns about his claims about his marital status, the Tribunal’s concerns about his critical claims are so deep that it has seriously considered that the relationship between the applicant and his spouse has been irretrievably broken down for some time.

Based on the available relevant evidence and the applicant’s lack of response to the adverse information put to him, the Tribunal does not accept the applicant and his wife have been living in the same residence, or that they had reconciled or that they were in the process of reconciling, at any time since the offending in May 2020, as variously claimed. The Tribunal finds there is sufficient probative material for it to reach a finding that the applicant has been living apart from his spouse on a permanent basis and that the applicant’s spousal relationship has irretrievably broken down since the offending. The applicant’s spouse – a victim of his aggression upon her person – is estranged from the applicant and she does not rely on the applicant remaining in Australia for any combined benefit from his emotional and material support. The Tribunal finds that the applicant and other parties have provided written and oral evidence to fabricate his marital status to wilfully deceive decision makers from the Department and the Tribunal to consider not to cancel this visa.[1]
[1] Thus, while different considerations may apply in relation to cancellation under s 109, it appears that the principle in Briginshaw is not generally applicable in the context of s 116 and that, provided the Tribunal’s satisfaction is based on findings or inferences of fact which are supported by probative material and logical grounds, it is a matter for it what weight to attach to particular matters and how to evaluate them. See Ngaronoa v MIAC (2007) 244 ALR 119 upholding Ngaronoa v MIAC [2007] FCA 1565. The Full Court at [12] described as ‘misplaced’ a contention that in considering the applicant’s criminal conduct for the purpose of his discretion under s 105 the Minister should have applied the Briginshaw standard of proof. The Court agreed with the primary Judge ‘that it was a matter for the Minister what weight to attach to particular matters and how to evaluate them for the purpose of the exercise of his discretion. Provided the Minister does not act arbitrarily or capriciously, or outside the limits of jurisdiction established by the Act, the exercise of his discretion is not subject to judicial review’. Although in that case the issue arose in the context of discretionary considerations under s 501, the reference to MIMA v Eshetu (1999) 197 CLR 611 at [145] suggests that the Court’s reasoning would be applicable more broadly to factual findings that go to questions of satisfaction, including satisfaction as to whether a ground for cancellation under s 116(1) exists.
The Tribunal accepts the original purpose of the applicant’s student visa, set to expire in June 2022, was to support his wife, both emotionally and financially. The applicant’s children reside in India and he has strong ties to the Indian community. Having made findings that the applicant’s spousal relationship has been irretrievably broken down and given the purpose of the applicant’s student visa was to support his wife as a full-time student, the Tribunal finds that there is no longer any compelling reason for the applicant to reinstate his temporary student visa.
Given the purpose of the applicant’s now cancelled student visa no longer exists, the Tribunal places significant weight on the lack of any compelling reasons for the visa remaining cancelled.
The extent of compliance with visa conditions
According to the Department, there is no evidence before it that the applicant has failed to comply with any visa conditions while holding visitor visas or a student visa.
During the hearing, the Tribunal asked if the applicant updated the Department about a recent change of address as a holder of a bridging visa. The applicant said he would do so. As discussed in the hearing, there was not a significant issue in the context of his general history of compliance with visa conditions.
The Tribunal gives this consideration some weight against the visa remaining cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In his NOICC response, the applicant submitted that his wife solely depends on him for emotional and financial support and that if the visa is cancelled, it will cause financial hardship for the couple in relation to sustaining their stay in Australia. He further submitted that he is the sole income earner who supports his wife and her studies.
At the hearing, the applicant emphasised the financial hardship on him and his family should he be returned to India. In particular, he argued that the rates of remuneration for the same work in Australia were greater than in India. He claimed that he has limited education. The Tribunal accepts he has ongoing responsibilities to his children and has limited education, but it does not accept the financial hardship arising from finding suitable employment will be notable or significant given his ties to the Indian community and because the cost of living is less than in Australia.
The applicant also claimed he would be emotionally and psychologically negatively impacted by returning to India. He claimed he would be away from his wife. However, as discussed above, the applicant’s marriage has ceased. He further argued his mental health will deteriorate. However, the applicant vaguely claimed only to have undertaken some counselling. He admitted he has not seen any doctor or psychologist and he is not receiving supervised treatment for a diagnosed mental health condition. The Tribunal does not accept the applicant has any significant mental health conditions. Nonetheless, it accepts the applicant will experience some but not a significant amount of emotional and psychological distress should this visa remain cancelled. After all, his marriage has ended and his plans as a couple to migrate to Australia are significantly stymied. The convictions against his name have also caused his reputation some harm, leading to embarrassment or shame. However, the applicant will be returning to India where his children and other family members reside. He has no compelling reasons to remain in Australia and is well placed to restart his life which will ameliorate any emotional or psychological hardship he would encounter, should this visa remain cancelled.
When considering the cumulative impact on hardship – material, emotional and psychological, the Tribunal assesses the degree of hardship to be reasonably characterised as negligible or low and not notable, considerable, significant or severe. The Tribunal places some but not a notable amount of weight on these considerations in favour of the visa being reinstated.
Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
As outlined above, the applicant pleaded guilty before a magistrate to three charges: two involving unlawful assault and another wilful damage to property. These convictions were grounds on which the cancellation arose.
In the applicant’s written response to the NOICC, he submitted some reasons for his offending. He claimed that after a heated argument, his wife called the police, and they took out an intervention order against him. He stated it was against the couple’s wishes. He claims due to his unfamiliarity with the Australian legal system, he subsequently appeared in court without first seeking legal assistance which resulted in his inability to convey his version of events and led to his convictions.
At the hearing, the applicant’s brother as a witness conceded the applicant pleaded guilty to the charges. He elaborated that his brother was without legal support. He claimed his brother’s conviction about wilful damage was about pulling a wire out of the wall and described the incident from May 2020 as a misunderstanding and as a mistake and attributed it to his brother not having employment. The employment difficulties appear to have been caused by physical injuries.
Contrary to the evidence provided, the Tribunal has received oral evidence from the applicant that he had legal counsel for his criminal charges and that he was provided with an interpreter. This fundamentally undermined his earlier written claim about a lack of support. There is no credible evidence before the Tribunal that he was denied any procedural fairness or was unable to convey his version of events. The applicant knowingly pleaded guilty. At the time of making this decision, there is no evidence the applicant has sought to appeal those convictions, let alone that those convictions have been quashed. The evidence is the applicant admitted guilt on the basis there was credible evidence before the police, prosecution and the court that he was responsible for such distressing and intimidatory behaviour for which he was charged.
With regard to any extenuating circumstances such as joblessness, financial stress, rage, mental health challenges, physical injuries or through misunderstanding or mishap or a combination of these reasons, these explanations lacked any credible persuasiveness that those circumstances were beyond the applicant’s control. As mentioned above, there is no evidence the applicant has any medical or psychological assessment that he suffers or suffered from any mental health difficulties at the time of the offending. The proffered reasons seemed designed to persuade decision makers that the applicant lacked meaningful responsibility or agency for behaviour involving family violence and intimidation. Many, if not most, people in adult relationships endure financial distress and emotional turmoil and they do not necessarily harm or harass their intimate partners.
There are no extenuating circumstances where the circumstances in which the ground for cancellation arose were beyond the applicant’s control. The Tribunal places considerable weight on the lack of extenuating circumstances that were beyond the applicant’s control at the time of his criminal offending.
Past and present behaviour of the visa holder towards the Department
According to the Department there is no evidence that the applicant has not been cooperative with the Department.
However, as mentioned above, the applicant’s written evidence and supportive third-party statements to the Department have claimed that the applicant and his wife were reconciled and living in the same household. The Tribunal has made findings that it does not accept the applicant has reconciled with his spouse and that such statements were significant fabrications. These fabrications were wilfully posited to garner a favourable outcome for the applicant and not because they reflected his actual marital status. Such deceptive behaviour is a serious matter to the Tribunal. Accordingly, it places some weight on this behaviour towards the Department against the reinstatement of this visa under review.
Whether there would be consequential cancellations under s 140
The student visa held by the applicant’s former spouse was not consequentially cancelled under s 140 when the applicant’s visa was cancelled. The applicant’s child resides in India with her maternal grandparents. In the event, that this visa remains cancelled, it will not result in any consequential visa cancellations. The Tribunal no relevant weighting on this consideration either in favour or against the visa remaining cancelled.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the visa remains cancelled, the visa holder may become an unlawful non-citizen. In such circumstances, his visa options would be subjected to s 48 provisions which would considerably limit those options. He risks being detained and forcibly removed from Australia under s 198 of the Act, if he does not voluntarily depart. It is open to him to apply for a bridging visa to enable him to make arrangements for departure, but there is no guarantee he will be granted the visa or be successful on merits review. The provisions of PIC 4013 would also prevent further offshore visas being granted to him for a period of up to three years from the date of cancellation.
When discussing these mandatory legal consequences, the applicant responded generally by describing the consequences as very disappointing and terrible for his family and his plans for his family.
In the context of a lack of any compelling or meaningful need to remain in Australia, the Tribunal places some weight on these mandatory legal consequences against the visa remaining cancelled.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]–[28].)
During the hearing, the applicant said that he was not a person of interest to anyone in India who may want to harm him. However, he was concerned that he would not be able to find work in India whose labour market had been adversely affected by the Covid-19 pandemic and associated public health measures and the impact this would have on his family. The applicant stated he was vaccinated twice in the last year for Covid-19 and conceded there was access to further vaccinations in India. There is no evidence before the Tribunal that the applicant would be denied access to any health care services, including mental health services. The applicant emphasised that it would be a financial liability for him to return to India and the rates of pay were better in Australia than India. Should the applicant return to India, the Tribunal does not accept the applicant would be unable to find remunerative work. While it accepts the economy and labour market in India are very different, the Tribunal notes the cost of living in India is significantly more affordable than in Australia. The Tribunal does not accept the applicant has a real chance of serious harm or a real risk of significant harm arising from his economic circumstances and India’s health system, should he return to his country of nationality and reference into the foreseeable future.
As the applicant has not applied for a protection visa, it places only a small amount of weight on whether the Refugees Convention and any other relevant international protocol of which Australia is a signatory, would be breached as a result of this cancellation remaining in place.
During the hearing, the applicant claimed that if his visa remained cancelled, the rights of his children would be significantly and adversely affected by the burden of providing for his family. The applicant claimed this was relevant to the Convention on the Rights of the Child (CROC), given his responsibilities to his wife and children. Given the applicant will be able to work on a full-time basis in India, no matter what his marital status is into the near future, the Tribunal does not accept a decision to cancel the visa would be in breach of any international agreements to which Australia is a signatory, including the CROC and any other relevant international protocol of which Australia is a signatory.
If it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties
This consideration is not relevant as the student visa under review belongs to a class of temporary visas.
Any other relevant matters
Seriousness of the offence
The applicant’s convictions involved offending directed towards his former female spouse.
The applicant’s penalty was not at the severe end of punishment. There is no evidence before the Tribunal that the applicant has breached any other laws in Australia or that he had done so in India. There is no evidence the applicant has breached any intervention orders or bail conditions imposed on him. The Tribunal accepts the convictions recorded against his name have caused his reputation to suffer, not least among his own family and that of his spouse.
Without diminishing the gravity of the offending, the Tribunal finds that it was neither trivial nor so heinous in its severity that it merited imprisonment or liabilities.
According to the Institute of Health and Welfare, family, domestic and sexual violence is a major national health and welfare issue that can have lifelong impacts for victims and people who use violence (perpetrators). According to the Australian Bureau of Statistics 2016 Personal Safety Survey, 2.2 million Australians have experienced physical and/or sexual violence from a partner and 3.6 million Australians have experienced emotional abuse from a partner. About 2.2 million Australians have experienced sexual violence since the age of 15.[2] Domestic violence against women and children is a serious problem in Australian society, the subject of considerable community consternation when perpetrators are not punished or sufficiently punished.
[2] AIHW website: Family, domestic and sexual violence data in Australia, last updated 16 December 2021, >
The seriousness of the offending can be reasonably characterised as grave and distressing. There were no acceptable reasons for the offending. The applicant has denied any meaningful responsibility for the offending, as outlined above. This indicates that the applicant is not a person of good character. Despite a lack of long criminal history, the convictions now recorded against the applicant’s name are markedly beyond community standards. The Tribunal places considerable weight on these considerations about the gravity of his offending in favour of this student visa under review not being reinstated.
Involvement in the community
In the legal submission, it was argued that since living in Australia, the applicant claims he has been actively involved in the Indian community in Australia; that he makes positive contributions; and is adapting to the Australian lifestyle. It was further advanced that he has developed strong social and emotional ties with the Australian community particularly in the Craigieburn area where he is currently residing since he arrived in Australia. At the hearing, there was a generalised claim advanced by the applicant that he has paid taxes while employed. The Tribunal pointed out to the applicant that he was required to do so by law. He further advanced he was a respected member of the community on the basis that he and his family ‘lived in a respected manner’. As discussed in the hearing, the Tribunal found that to be a vague answer regarding his involvement in the community. The applicant did not nominate participation in any specific community events or religious or charitable organisations. Given the applicant was unable to nominate any specific voluntary activities and given the seriousness of the offending which has diminished his standing among his family and in the community, the Tribunal places only a minute amount of weight on this consideration in favour of the visa being reinstated.
Conclusion
The grounds for the cancellation of this visa under s 116(1)(g) have been made about.
The grounds for cancellation involved convictions in the State of Victoria relating to domestic violence. There were no extenuating circumstances beyond the applicant’s control at the time of offending. In the context of the applicant’s spousal relationship ceasing after his offending, there were no credible reasons put to the Tribunal that he had compelling reasons to have the visa reinstated. The applicant has not been able to identify a significant degree of financial and emotional hardship to be faced by the applicant, should this visa remain cancelled. The Tribunal has also placed notable weight on the applicant’s fabrication that he has reconciled or was in the process of reconciling with his spouse and on the general gravity of his offending.

For the reasons outlined above, the Tribunal assesses that those factors in favour of the visa being reinstated have not outweighed those factors in favour of the visa remaining cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Brendan Darcy
Member