Aronno (Migration) [2021] AATA 3948 (29 September 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Al Nahian Aronno
CASE NUMBER:	2015943
HOME AFFAIRS REFERENCE(S):	BCC2020/1219472 
MEMBER:	Antoinette Younes
DATE:	29 September 2021
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 29 September 2021 at 10:45 AM

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the safety of the Australian community – applicant convicted of an offence – mental health issues – family’s investment in the applicant’s education – several letters of unconditional support – decision under review set aside	

LEGISLATION
Migration Act 1958, ss 48, 116, 140, 359A
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.43

CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234	

STATEMENT OF DECISION AND REASONS
application for review
1.  	This is an application for review of a decision dated 26 October 2020 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).
2.  	The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted in NSW. 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 15 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from 5 witnesses.
4.  	The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
5.  	The applicant was represented in relation to the review by his registered migration agent. 
6.  	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
7.  	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
8.  	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 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.
9.  	Section 116(1)(g) provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: 
…
(g) a prescribed ground for cancelling a visa applies to the holder. 
10.	The prescribed grounds for cancellation under s 116(1)(g) are found in reg 2.43(1)(oa) of the Regulations, which provides: 
(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));…
11.  	During the hearing, and in accordance with s 359A, the Tribunal advised the applicant that there is information before the Tribunal indicating that on 3 March 2020, at Burwood Local Court, he was convicted of the offence of Assault Occasioning Actual Bodily Harm for which he was sentenced to a Community Correction Order of 14 months commencing on 3 March 2020 and concluding on 2 May 2021. The Tribunal further advised the applicant that the NSW Police Fact Sheet indicates that on 1 December 2019, the applicant punched the victim who was a friend with a closed fist on the left side of the jaw, he kept shouting and punching the victim, he and the co-accused continued to push the victim causing him to fall over and ripped his shirt, there were witnesses, and that during an electronically recorded interview, the applicant claimed that he had been drinking and could not recall anything. The Tribunal advised the applicant that it considered the information to be adverse as it suggests that the conviction concerned a violent incident and that the ground for cancellation arises. When invited to comment on, or respond to the information, the applicant answered that he would comment later. He subsequently said that he was heavily intoxicated and does not recall the details of the incident. He indicated that he pleaded guilty without legal representation. He stated that he did not mention the drinking to the Court.
12.  	The Tribunal explained to the applicant that the Tribunal must accept the Court’s findings and conclusions. 
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/Notice) & RESPONSE
13.  	The Department sent to the applicant a NOICC to which he responded. In that response and to the Tribunal, the applicant confirmed that he agrees that the ground for cancellation arises. He provided explanations as discussed below.
14.  	In support of the response to the NOICC and to the Tribunal, the applicant provided documents such as Statutory Declarations explaining the reasons for the offending conduct, copies of Confirmations of Enrolment (CoE), multiple character references, 5 of whom are from persons who gave evidence in the course of the hearing, letter dated 2 March 2020 from Medilink Counselling referring to the applicant suffering from anxiety and depression, and written submissions.
15.  	There is no issue relating to the validity of the NOICC and the Tribunal finds that the Notice is valid.
16.  	The undisputed evidence before the Tribunal is that the applicant was convicted of the offence of Assault Occasioning Actual Bodily Harm. The applicant has provided explanations and submissions discussed below relating to the consideration of discretion. The Tribunal is satisfied that the conviction means that s 116(1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by reg 2.43(1)(oa).
17.  	As s 116(1)(g) does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
18.  	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
19.  	The applicant was granted the Student visa to enable him to undertake studies in Australia. He arrived in Australia on 24 November 2017 to undertake a Bachelor of Information and Communications Technology (ICT) at the University of Western Sydney (UWS), which he commenced on 23 February 2018, subsequent to the completion of an Academic English for Tertiary Studies course. He gave evidence that he commenced ICT studies in Bangladesh and wanted to pursue them in Australia. 
20.  	The Tribunal discussed with the applicant his progress in the ICT course at UWS. The applicant stated that he has changed from UWS to another institution (evidence provided) due to that institution being less expensive – by $5000. He stated that he has been credited with 8 subjects completed at UWS and there remain 12 more subjects to complete the requirements for the ICT degree. He stated that it would take up to a year to complete the ICT degree, assuming he passes the 12 subjects. The applicant gave evidence that he would like to complete his degree and potentially pursue a Master’s degree.
21.  	In submissions, it was noted that although the applicant has struggled with his studies and he had several fail grades, he is committed to completing his qualifications and focussing on his studies. It was noted that the applicant ceased employment when lockdown restrictions were introduced to Sydney but he decided not to seek other employment because he wanted to focus on finishing his studies. 
22.  	Although the applicant’s academic progress has not been without challenges, the Tribunal is satisfied that the applicant’s purpose to travel to Australia and stay in Australia is consistent with the purpose for which he was granted the Subclass 500 (Student) visa.
23.  	The Tribunal accepts that the applicant is staying in Australia because he wants to complete his studies, which is a compelling reason for him to stay in Australia. 
24.  	The Tribunal gives weight to this consideration in favour of the applicant. 
The extent of compliance with visa conditions
25.  	There is no evidence of breach of visa conditions. 
26.  	The Tribunal views compliance with visa conditions to be a legitimate expectation and as such the Tribunal gives neutral weight to this consideration.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
27.  	The applicant is 22 years old. He is single and his parents live in Bangladesh. 
28.  	The applicant has claimed that the cancellation of his visa would cause him and his family significant emotional, psychological and financial hardship.  He contended that not being allowed to complete his studies in Australia would have insurmountable adverse consequences, including the fact that the conviction and potential cancellation are likely to mean that he would not be permitted to study in any other English-speaking country. He argued that he has invested a significant amount of time, money and effort into his studies and that it would be serious for him to not be able to complete his Bachelor’s degree. He indicated that his parents have invested a large sum of money into his education and that they would be distraught if the visa was cancelled and the money they had invested into his international education did not achieve a positive outcome. He submitted that if he is unable to complete his studies and is required to return to Bangladesh without a degree, he would lose his parents’ trust and would likely be seen by his parents as a failure and an immature child, which would cause worry to his parents as well as a degree of shame and judgment from the wider community.
29.  	There is before the Tribunal evidence which the Tribunal accepts that the applicant has suffered from depression and anxiety. 
30.  	The Tribunal acknowledges that the cancellation of the applicant’s visa has the potential to cause the applicant further and/or worsening of the mental health issues, and could result in hardships including psychological, financial, employment and emotional to both the applicant and to his parents who would also be disappointed. The Tribunal accepts that cancellation would disrupt the applicant’s studies in Australia and that given the conviction and cancellation, there would be challenges for the applicant in being able to complete his studies in another English-speaking country outside of Australia.
31.  	The Tribunal gives significant weight to this consideration in the applicant’s favour.
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
32.  	The circumstances in which the cancellation arose were as a result of the applicant being convicted of an offence in NSW. As outlined above, the Tribunal takes the view that the offence is serious.
33.  	The applicant provided submissions and documents, including:
•	Statutory Declaration of Respondent, signed on 30 September 2020;
•	Police Fact Sheet of Incident;
•	Applicant’s Online Academic Transcript for Current Studies, Confirmation of Enrolment, OSHC Policy;
•	Character References (and evidence of citizenship for some) from Abu Mustafa Muhammad (Statement dated 25 September 2020), Shammia Bushra Tanni (Statement dated 25 September 2020), Md Ashadul Islam (Statement dated 28 September 2020), Louise Elizabeth Smith and Evidence of Citizenship (Statement dated 28 September 2020), Shilby Sohail Abdullah (Statement dated 27 September 2020), Al Mahmud (Statement dated 29 September 2020), Tofayel Ahmed Topu (Statement dated 29 September 2020); 
•	Letter from Clinical Social Worker Submitted to Magistrate Prior to Sentencing;
•	Court Attendance Notice;
•	Community Correction Order, signed by the applicant on 3 March 2020; and
•	Notice of Penalty from the Local Courts of New South Wales dated 3 March 2020.
34.  	The Tribunal heard evidence from 5 witnesses who spoke highly of the applicant’s character.
35.  	The applicant expressed remorse and submitted that he has no prior convictions, that his behaviour is attributable to study stress, anxiety, depression and alcohol issues. He assured that he would not re-offend and he asked for another chance to complete his studies. He advised the Tribunal that he wrote a letter of apology to the victim who did not accept the letter.
36.  	The Tribunal has noted the applicant’s explanations and it is plausible that the applicant had been stressed, depressed and had alcohol-related issues, which might have contributed to the offending but this does not mean that the offending was beyond the applicant’s control. The Tribunal accepts on the evidence that the applicant has no prior conviction, but the applicant has been convicted of a serious first offence. The applicant has contended that he would not re-offend. The Court’s finding is that the applicant had committed the offence with which he was charged. The Court imposed a sentence which the Court considered to be appropriate. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures, and are not for review by an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…
37.  	The applicant has contended that excessive alcohol consumption played a role in him offending but that he was naive about the effects of excessive alcohol consumption because in Bangladesh which is a strict Islamic nation where drinking is forbidden, he did not receive education about alcohol consumption.
38.  	Although there are explanations for the applicant’s conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond his control – the consumption of alcohol is within a person’s control and personal responsibility. Moreover, it is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions. The Tribunal is of the view and this is despite the applicant’s contentions, that it is reasonable to assume that the Court took all relevant matters into account. 
39.  	The Tribunal considers the applicant’s offending conduct to be serious, involving a victim. 
40.  	The Tribunal gives significant weight to this consideration in favour of cancellation.
Past and present behaviour of the visa holder towards the Department
41.  	The applicant responded to the matters raised in the NOICC and has fully engaged with the cancellation process.
42.  	The Tribunal gives this aspect weight in favour of the applicant.
Whether there would be consequential cancellations under s 140
43.  	There is no evidence of consequential cancellation under s 140.
44.  	The Tribunal gives this consideration neutral weight.
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
45.  	The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s 48 of the Act, which means that he could face difficulties in applying for certain visas in Australia. He will also be subject to PIC 4013.
46.  	In submissions, it was contended that the legal consequences are particularly significant in the applicant’s case due to his education. The Tribunal has dealt with this issue under the consideration of hardship.
47.  	The Tribunal considers that, in the applicant’s case, potential detention, removal from Australia, the impacts of s 48 and the PIC 4013 bar are intended legislative consequences. 
48.  	The Tribunal gives this consideration neutral weight.
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 
49.  	On the evidence, the Tribunal is satisfied that in the case of cancellation, there would not be a breach of any of Australia’s international obligations.
50.  	The Tribunal gives this aspect neutral weight.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
51.  	The Student visa is not a permanent visa. 
52.  	The Tribunal gives this aspect neutral weight.
Any other relevant matters
53.  	As mentioned earlier, the applicant provided a substantial number of letters from family and friends who expressed unconditional support for the applicant. The witnesses who gave evidence about the applicant stated that he is a good person whose conduct needs to be considered as an isolated incident. The Tribunal has no reason to doubt the authenticity of the views expressed by the witnesses.
54.  	The Tribunal gives weight to this aspect in the applicant’s favour.
55.  	The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal is satisfied that on balance, the considerations favourable to the applicant outweigh those in favour of cancellation. The applicant’s circumstances, particularly the degree of hardship, outweigh the considerations in favour of cancellation.
56.  	The Tribunal therefore concludes that the visa should not be cancelled.
decision
57.  	The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Antoinette Younes
Senior Member