Wickramasinghe Rathnayake Mudiyanselage (Migration)

[2019] AATA 2796

Wickramasinghe Rathnayake Mudiyanselage (Migration) [2019] AATA 2796 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pradeep Aruna Shantha Wickramasinghe Wickramasinghe Rathnayake Mudiyanselage

CASE NUMBER:  1901146

HOME AFFAIRS REFERENCE(S):           S16/01107119

MEMBER:Jason Pennell

DATE:28 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 28 March 2019 at 5.20pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – risk to health, safety or good order – charged with threats to kill – Personal Safety Intervention Order (PSIO) in favour of friend – friendship resumed – no risk to health and safety of individual – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(ii), 140
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision dated 10 January 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)(ii) on the basis that the presence of the applicant is or may be a risk to the health or safety of an individual. On 17 January 2019 the applicant sought a review of the s.116 cancellation. 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 28 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Maishani Perera.

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

5.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

6.Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(ii). 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?

1. The applicant arrived in Australia on a student visa on 4 April 2016. The applicant initially enrolled in a Diploma of Business Administration at Homesglen Tafe in Melbourne and later transferred into a Bachelor of Business Administration. His evidence was that he has one more year to complete his studies.

2. On 16 October 2018 the applicant made a threat to kill Ms. Ms Maishani Perera to the applicant’s counselor, Michaela Hosking and a police officer, Senior Constable Anzar. As a result, in October 2018 a Personal Safety Intervention Order (PSIO) was taken out against the applicant in favour of Ms. Perera and in November 2018 the applicant was charged with making threats to kill.

3. The applicant’s student visa was cancelled on 10 January 2019. On 15 January 2019 the applicant received a fine and agreed to an undertaking at the Melbourne Magistrates Court. The applicant was detained under s.189 (1) of the Migration Act following his release for the Melbourne Magistrates Court.

4. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(ii) 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

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 Ms Maishani Perera, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

Applicants purpose of traveling and staying in Australia.

1. During the course of the hearing the applicant confirmed that his intended purpose of traveling and staying in Australia was to study a Bachelor of Business Administration.

2. The applicant’s was granted a Subclass 573 Higher Education Sector on 30 May 2016 and arrived in Australia on 2 December 2014.

3. 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.

Compliance with visa conditions

1. At all relevant times that applicant had complied with his visa conditions. The applicant has not been enrolled in a registered course since 3 December 2018. The applicant failed to re-enrol in his course by 3 December 2018 by reason of the fact that he had been detained by the police at that time. The applicant’s visa was cancelled on 10 January 2019.

2. The Tribunal gives some weight in favour of the applicant in relation to this factor.

The degree of hardship that may be caused to the Applicant. 

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. In particular he would not be able to complete his studies and so return to Sri Lanka to work in his father’s construction business. In addition, he says that he will be shamed in the eyes of his family for not having finished his studies. While the Tribunal recognises that the applicant has suffered 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)(ii) of the Act.

2. The Tribunal accepts that by not completing a Bachelor of Business Administration the applicant will suffer some hardship in the event that he returns to Sri Lanka. However, in circumstances where the applicant was aware of the visa conditions, the Tribunal places little weight on the applicant 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. As such, the Tribunal gives little weight in favour of the applicant in considering this factor.

The circumstances in which the grounds for cancellation arose

1. The applicant evidence was that a month after being issued with the intervention order he traveled to Sri Lanka. He said that after he left for Sri Lanka the police visited his former address and left a card saying they had visited. On his return to Australia the applicant was staying at a different address but visited his old address and found the police card. As a result he went to the police station where he was arrested. 

2. The applicant and Ms. Perera’s evidence was that they were good friends. They had met through their studies and that they had worked together as student counselors at the Tafe College. His evidence was that he had become emotionally upset as a result of her becoming engaged in August 2018. Ms. Perera’s confirmed that they had become very close but she had made it clear to him that a relationship between them was not possible. As a result the applicant became very upset and as a result of his emotional condition he attended the office of Michaela Hosking, a counselor at Homesglen seeking help.  He stated that the threatened to kill Perera was made to Ms Hosking as a reference to how he was feeling rather than as an expression of any intent. His evidence was that it was a ‘hollow threat’ threat made under the influence of alcohol and in an emotionally distressed state. Further, his evidence was that the second threat made to Senior Constable Anzar occurred as a result of a misunderstanding as to what he had said to Ms Hosking. However, the police report on the department file[1] indicates that the applicant threatened Ms Perera on several occasions including in the presence of a number of police officers.    Nevertheless, the applicant’s evidence was that he did not wish to harm Ms Perera.

   [1] Department file No1901665 created 25 January 2019 at 13.43.

3. Ms Perera gave evidence to the Tribunal that she did not fear the applicant. Her evidence was that since the court proceeding she had become reacquainted with the applicant and that they had resumed their relationship. Her evidence was that they were in contact on a regular basis. However, she did confirm that the applicant did not attend her residence in accordance with the court orders, principally because she shared with other women and that it would be inappropriate for him to attend the premises with her.   

4. Ms Perera had attended the court hearing on 15 January 2019 to give evidence in the applicants favour. Despite her statement that to the police that she was in fear of her safety as she had received notification that the applicant was very angry and wanted to harm her, Ms Perera confirmed that she had sought to withdraw the intervention order.

5. The Tribunal notes that apart from the events in 2018 the applicant has not been charged or convinced with any offence in Australia or Sri Lanka. The Tribunal also notes that there is no evidence to suggest that he has harassed or intimidated Ms Perera since his return to Australia. As such, the Tribunal gives considerable weight in favour of the applicant in relation to this fact.

6. The Police records show that the applicant was interviewed by the police after Ms Hosking had requested that they attend due to his behavior. The applicant advised the police that he had spoken to his Tafe counselor on 1 October 2018. She latter informed the police that the applicant had expressed significant anger toward Ms Perera and that he was having thoughts of self-harm. The applicant claims that he has dealt with the anger and frustration that he felt at the time.  Ms Perera confirmed that she and the applicant had resumed their relationship and were on intimate terms.

7. The applicant confirmed that he had only one more year to complete his course. His evidence was that his mother had suffered from a heart condition and that he did not want to tell her about the charges made against him and the fact that his student visa had been cancelled. His evidence was that despite his mother having no knowledge of his circumstances he had told his father and sister. 

8. Given the severity of the charges involved the Tribunal does hold some concerns about the applicant not engaging in similar criminal conduct in the future. However, based on the evidence given by Ms Perera that she has re-established contact with the applicant and she does not hold any fears in relation to him and the fact that the applicant has not been involved in any other criminal activity, the Tribunal is satisfied that the applicant is not a risk to the health or safety of an individual or individuals, in particular Ms Perera, and as such finds that there is not a real risk the applicant will breach Australian Law in the future. 

9. As a result, taking into account all the considerations referred to in these reasons and in particular the evidence of Ms. Perera, the Tribunal is satisfied that the applicant will not be a risk to the health or safety of an individual or individuals for the balance of his time in Australia.

Past and present behaviour of the applicant

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. 

2. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Jason Pennell
Senior Member