Thapa (Migration)

[2023] AATA 4593

Thapa (Migration) [2023] AATA 4593 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chitra Thapa

REPRESENTATIVE:  Ms Krishlyn Krisha Chetty

CASE NUMBER:  2212812

HOME AFFAIRS REFERENCE(S):          BCC2022/298724

MEMBER:Kira Raif

DATE:14 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 14 November 2023 at 1:22pm

CATCHWORDS 
MIGRATION – cancellation – Subclass 010 (Bridging A ) visa – criminal conviction – applicant’s relationship with his spouse has broken down –  domestic violence – lacks insight into his conduct and lacks remorse – cancellation of the applicant’s visa will not result in the applicant having to leave Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa (BVA) under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Nepal, born in March 1992. He was granted the BVA in January 2021 in relation to his application for a Student visa. In June 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling his visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner Ms Gopali and his friend Mr Kohli. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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. 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.

5. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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). Regulation 2.43(1)(oa) provides the following 

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (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))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted a Class WA Bridging A visa on 5 January 2021 in association with his application for a Student visa. The Department received advice that on 24 January 2022 the applicant had been convicted of the following offences at Fairfield Local Court:

   ·Intentionally choke person without consent (DV)

   ·Assault occasioning actual bodily harm (DV)

   ·Common assault (DV)

7. The applicant was sentenced to a community corrections order for 6 months, 12 months and 12 months respectively, to be served concurrently.

8. In his submissions to the Tribunal the applicant concedes that the ground for cancellation exists. However, he also states that he pleaded guilty on the advice of his lawyers and did not commit the offences. The applicant told the Tribunal that he had fought against the conviction but his financial and mental situation did not allow him to continue and he did not fully understand the process. He later said that he considered approaching Legal Aid but the time had already run out to lodge an appeal.

9. The applicant had been convicted of offences. There is no evidence of the convictions being overturned. The Tribunal considers that the fact of the conviction is evidence that the offences were committed and the Tribunal is not able to go behind the conviction.

10. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of offences. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

    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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. The applicant told the Tribunal in oral evidence that he initially travelled to Australia as a dependent on his partner’s Student visa. His plan was to make his future in Australia but he has divorced from his previous partner and he now has a different partner and is focused on his study.

13. In his written submission to the Tribunal the applicant states that he had made the application for a Student visa which was refused and set aside by the AAT and is presently before the Department, being assessed against character provisions. The Tribunal is mindful that the processing of the Student visa application will continue irrespective of the outcome of this review.

14. The Tribunal accepts that the applicant travelled to Australia on a Student visa as a dependent of his then partner and that he now intends to pursue study and has made the application for the Student visa. The applicant was granted the Bridging visa in question in association with the application for the Student visa and that application has not been finally determined. The Tribunal accepts that the applicant is fulfilling the purpose of his travel to and stay in Australia.

15. In his submission to the delegate the applicant refers to having a relationship with his new partner and having a business. The applicant’s relationship may constitute a compelling need for the applicant to remain in Australia although the Tribunal is mindful that a Bridging visa in itself does not allow the applicant to remain in Australia on any long term basis but is merely a means to enable him to remain in Australia while the application for the substantive is being processed.

16. The applicant refers to his new relationship and the support he provides to his partner and her child. The Tribunal notes that it is not the purpose of the bridging visa to enable the applicant to remain in Australia with his partner. Neither is it the purpose of the Student visa, that the applicant has applied for, to enable the applicant to remain in Australia with his partner. If the applicant claims that he needs to remain in Australia to be with his partner, then issues arise as to whether the applicant meets the ‘Genuine Temporary Entrant’ requirements relevant to the grant of a Student visa. This is not a matter for the present Tribunal other than to note that the Bridging visa that is the subject of this review would not enable the applicant to fulfill his stated purpose of living in Australia with his partner. The Tribunal notes that the applicant has the option of applying for a Partner visa if he wants to remain in Australia with his partner on a longer term basis.

    The extent of compliance with visa conditions

17. There is no evidence of any non-compliance with visa conditions.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

18. In his submission to the Tribunal the applicant refers to his relationship with the new partner and the close relationship he has established with her child. The applicant submits that his partner and child are dependent on him for emotional support. The applicant submits that he has a substantial need to remain in Australia. In oral evidence the applicant states that if his visa is cancelled, his partner and step-child would be affected.

19. Even if these claims are accepted in their entirety (and there is limited evidence before the Tribunal about the applicant’s relationship and emotional support), as noted elsewhere, the Tribunal does not consider that the Bridging visa that is being considered here is an appropriate vehicle for the applicant to remain in Australia with his partner. The purpose of the applicant’s bridging visa is only to enable the applicant to remain in Australia while his Student visa is being processed. The applicant is able to remain in Australia to await the outcome of the application for the Student visa.

20. It is significant, in the Tribunal’s view, that the applicant will be able to remain in Australia until his application for the Student visa is finally determined. That  it, whether or not the present visa remains cancelled, the applicant will not be separated from his partner and child. If the applicant is granted the Student visa, then his Bridging A visa will cease. If he is not granted the Student visa, he will no longer be entitled to hold the Bridging A visa.

21. In his oral evidence to the Tribunal the applicant states that he had made an application for the Bridging E visa which is still pending. The applicant submits that he has not been granted the BVE due to character consideration and he is presently an unlawful non-citizen who is subject to detention. The Tribunal acknowledges that if the applicant’s BVA remains cancelled and if he is not granted another visa, he will remain an unlawful non-citizen liable to detention and removal from Australia. It does not appear that any steps had been taken to detain the applicant, despite his being an unlawful non-citizen, but the Tribunal acknowledges that it is a possibility.

22. The Tribunal accepts that significant hardship may be caused to the applicant and others if the applicant is detained as an unlawful non-citizen.

    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

23. The ground for cancellation arises because the applicant was a holder of a temporary visa and had been convicted of offences. The applicant provided with his response to the NOICC a copy of his AFP police certificate and a copy of the Intensive Corrections Order.

24. In his submission to the delegate dated 30 June 2022 the applicant provided court documents relating to his offending. The police facts sheets state, in relation to common assault, that on 10 August 2020 the victim was making a TikTok video clip and as she was dancing, she felt a hit on her lower back. It is stated that the applicant kicked her before leaving home. With respect to the offence of intentionally choke person without consent, it is recorded that on 28 August 2020 the applicant approached the victim, grabbed her on the neck and pushed her down to the bed. The applicant is reported to have put both hands around her neck and squeezed. The victim blacked out. With respect to the assault offence, it is reported that on 13 October 2020 the victim observed the applicant and another female lying in the same bed. The applicant chased the victim out of the house and grabbed her on her wrist and hit her on the corner of her eye. The victim ran away and the applicant is reported to have chased her.

25. The Tribunal has been provided with the bail report and a sentencing assessment report dated 2 January 2022 (which indicates that the report could not be completed as the applicant failed to make contact with Community Corrections and could not be located at the specified address).

26. In his submission to the delegate the applicant refers to having an arranged marriage which  had ‘turned sour’. He states that on prior occasions he was attacked and had been named as a victim in an ADVO (the applicant also provided a number of photographs to the delegate and the Tribunal which appear to depict his injuries and what he claims to be a photo of his wife with a knife). The applicant submits in his evidence to the delegate and the Tribunal that he is a victim of an abusive relationship with his ex-partner who was aggressive and demeaning and had an affair. The applicant states that he had paid for his wife’s fees. The applicant provided a number of character references and stated that the offending was out of character. In his later submissions to the delegate the applicant provided further character references, as well as evidence of his participation in a number of rehabilitation courses. The applicant also provided a copy of the ADVO in which he was named as a victim.

27. In his submission to the Tribunal of 9 November 2023 the applicant also outlines the circumstances of his marriage and the ‘issues’ in their marriage, stating that his ex-wife was at times aggressive towards him. He states that they have been living separately since September 2019 and states that he was charged with domestic violence offences and later assault in October 2020. The applicant told the Tribunal that he had supported his wife in her studies but she had a boyfriend and wanted to separate from him and send him back to his home country. The applicant refers to his former partner being aggressive, preparing ‘allegations’ against him and making stories about life in Nepal. The applicant states that there were 18 charges against him but it was his wife who had been aggressive towards him. The applicant states that his ex-wife has been charged with offences and has a court hearing coming up.

28. The applicant claims that he did not commit the offences and pleaded guilty on the advice of his lawyers. The applicant claims that his criminal lawyer did not consider the impact of the criminal proceedings on his visa and the issue of unhappy marriage was not raised before the court. The applicant states that the offending was beyond his control and there is a pending criminal matter in relation to his ex-wife. In his oral evidence to the Tribunal the applicant stated that “he is not that kind of person” and that he had lost his job as a result of the conviction.

29. The Tribunal acknowledges the applicant’s evidence but is mindful that it is the applicant who had been convicted of offences. Whether or not he had been the victim in other incidents, this does not diminish his culpability for the offending set out above. In particular, the Tribunal does not accept the applicant’s evidence that the offending either did not take place or was beyond his control (as noted above, the Tribunal considers the fact of the conviction as evidence that offences took place). The applicant’s present denunciation of all responsibility for the offending conduct and denial of the conduct itself suggests that he lacks insight into his conduct and lacks remorse.

30. The Tribunal is mindful that the ground for cancellation does not arise because of the relationship breakdown – whether or not the applicant had been a victim of family violence – but because of the applicant’s conviction.

    Past and present behaviour of the visa holder towards the department

31. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s 140

32. As the visa in question is a BVC which has no secondary criteria, there would be no consequential cancellations under s. 140.

    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

33. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. The processing of the applicant’s Student visa application is independent of the present cancellation, the applicant would be permitted to remain in Australia to await the outcome of that process. The Tribunal acknowledges that the applicant may be subject to an exclusion period if his bridging visa remains cancelled.

34. If the applicant is not granted another visa, he may be detained as an unlawful non-citizen. If the applicant’s visa is cancelled, he can make an application for another visa in Australia but would be limited in the types of visas he can apply for onshore.

35. In his written submission to the Tribunal the applicant claims that if his BVA is cancelled, he would become an unlawful non-citizen and would be detained and removed from Australia. The Tribunal does not accept that the applicant would be removed, as his application for the Student visa has not been finally determined and the applicant can remain in Australia until it is. The applicant would also be eligible to seek a Bridging E visa on the basis of the outstanding application for the Student visa. (The applicant’s evidence is that he has applied for a Bridging E visa which has not been determined due to the criminal conviction.)

36. The applicant told the Tribunal that he wants to remain in Australia lawfully and he does not want to live in fear of being unlawful. The Tribunal accepts that evidence.

37. In his written submission to the Tribunal the applicant also states that he may apply for a Partner visa but cannot do so in Australia if his visa remains cancelled. The Tribunal notes that this is not the case and the applicant will be able to make a valid application for a Partner visa in Australia and he may also seek that visa from overseas. In oral evidence the applicant suggested that he has no plans to apply for a Partner visa.

    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

38. The applicant told the Tribunal that non-refoulement claims do not arise in this case and on the evidence before it, the Tribunal does not consider that Australia’s protection obligations are engaged.

39. In relation to the family unit, the Tribunal accepts that the applicant’s new partner and her child are in Australia but the Tribunal is mindful that the applicant is able to remain in Australia  while his application for the substantive visa is being considered, and he is also eligible to seek a Partner visa to be with his partner and her child.

40. The applicant refers to his relationship with his partner’s child and he provided a statement from his present partner about the applicant’s relationship with the child. The Tribunal is prepared to accept that evidence but, as noted throughout this decision, the cancellation of the applicant’s visa will not result in the applicant having to leave Australia (while his application for the Student visa is being considered) and there may not be any meaningful difference in the applicant’s interactions with the child whether or not the applicant maintains the Bridging A visa. In the circumstances, the Tribunal does not consider that the best interests of the child will be affected by the cancellation of the applicant’s visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

1. The visa in question is not a permanent visa.

   Any other relevant matters

2. In a submission to the delegate of 4 June 2022 the applicant’s representative refers to the applicant as being a ‘man of the finest character’, who is well educated and cultured and worked in an essential services industry throughout the pandemic. The Tribunal accepts that the applicant genuinely believes that to be the case.

3. The applicant provided to the Tribunal a number of character references and states that others believe him to be a nice and caring person and refer to an unhappy marriage. The applicant states that he is unlikely to commit domestic violence offences in the future and his offending was a one-off incident premeditated by his wife and he has no other offending in Australia. The applicant submits that he pleaded guilty on advice of his lawyers and there were circumstances beyond his control and the applicant refers to the ongoing proceedings in relation to his ex-partner. These matters have been addressed above.

4. The applicant told the Tribunal that he used to be a teacher and his offending also affects his students. However, the issue before the Tribunal is not the applicant’s offending but the cancellation of his visa. The applicant’s partner Ms Gopali told the Tribunal that they met in 2020 and have been living together since that time. Ms Gopali told the Tribunal that the applicant is a good and calm person and the offending was out of character. The applicant’s friend Mr Kohli also gave oral evidence stating that the applicant is a good friend and a ‘decent guy’. The Tribunal accepts that Ms Gopali and Mr Kohli hold these views.

5. The applicant claims that there has been no other offending and he has completed an anger management course. To the extent necessary to determine the risk of reoffending, the Tribunal notes that the applicant has not expressed remorse and has not shown any insight into his conduct, blaming his ex-partner and suggesting that the circumstances were beyond his control. In the Tribunal’s view, these matters are not supportive of a finding that the applicant is rehabilitated and that the risk of reoffending is non-existent.

6. The applicant refers to his contribution to the community through his support for a language school, blood donations and donations to charitable causes. The Tribunal is prepared to accept that evidence.

7. The applicant’s representative submits that the applicant wants to remain lawful in the community to await the outcome of the application for the Student visa and if he is detained, that could further affect his visa options. The representative submits that the applicant was not informed of the implications in relation to his immigration matters when advised to enter a plea. The representative refers to the applicant being of good character .

8. The representative refers to the applicant’s interactions with his partner’s child (and the parent – child relationship) which would be affected if the applicant was to leave Australia for Nepal. As noted above, the applicant would not be expected to leave Australia until his Student visa application is resolved.

9. The Tribunal has considered the totality of the applicant’s evidence. The Tribunal has found that there are grounds for cancelling the visa as the applicant held a temporary visa and had been convicted of an offence.

10. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia as he has expressed an intention to study and is awaiting the outcome of his Student visa application. The Tribunal also acknowledges that the presence of applicant’s new partner and her child may constitute a compelling need for the applicant to remain in Australia, however, it is also significant that the applicant will be able to remain in Australia, awaiting the application for the substantive visa, irrespective of whether he continues to hold a Bridging A visa.

11. The Tribunal accepts that considerable hardship may be caused to the applicant, and potentially his partner and her child, if the applicant is detained as an unlawful non-citizen. The Tribunal accepts that there is a possibility that the applicant may be detained, despite the fact that no steps had been taken to date to detain the applicant to date. The Tribunal also accepts that there will be legal consequences to the cancellation of the applicant’s visa, including limited opportunities for future applications. The applicant had complied with the conditions of his previous visa and has made a contribution to the community. The Tribunal has also given some weight to character evidence. These are all matters that weigh in favour of the visa not being cancelled.

12. The Tribunal has determined that the best interests of children would not be adversely affected by the cancellation and that Australia’s non-refoulement obligations do not arise. These considerations are neutral.

13. In the circumstances of this case, the Tribunal decided to place greater weight on the circumstances in chich the ground for cancellation arose. The applicant had committed family violence offending. The Tribunal considers these to be serious offences that  involved harm to another person. It is not sufficient to claim, as the applicant does, that he was the victim and that it was his partner who had committed violence towards him. It is the applicant’s conduct that is in question here and he had been convicted of the offences described above. The applicant has shown little insight into his conduct, denying the offending or repeatedly stating that he was the victim and that there were circumstances beyond his control. In the Tribunal’s view, these matters weigh heavily in favour of the cancellation and outweigh other considerations.

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

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kira Raif
    Senior Member