Gautam (Migration) [2021] AATA 3951 (29 September 2021)

DECISION RECORD
DIVISION:	Migration & Refugee Division
APPLICANT:	Mr Binod Gautam
CASE NUMBER:	2018167
HOME AFFAIRS REFERENCE(S):	BCC2020/2688991 
MEMBER:	Antoinette Younes
DATE:	29 September 2021
PLACE OF DECISION:	Sydney
DECISION:	The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 29 September 2021 at 10:14 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 – impact of the COVID-19 pandemic – financial hardship – decision under review affirmed	

LEGISLATION
Migration Act 1958, ss 48, 116, 140
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 17 December 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 of an offence 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 22 September 2021 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
4.  	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
5.  	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
6.  	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.
7.  	Section 116 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. 
8.	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));…
9.	During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.  
10.	The delegate’s decision record indicates that the Department received information that on 17 November 2020 the applicant was convicted at the Burwood Local Court of the offence of Sexually Touch Another Person Without Consent -T2, for which he received a fine of $500 and a community correction order (CCO) for 12 months, commencing on 17 November 2020 and concluding on 16 November 2021.  The conditions of the CCO included reporting to the Burwood Office of the Community Corrections Service by 24 November 2020, supervision by the Community Corrections Service for 12 months commencing on 17 November 2020 and concluding on 16 November 2021, and abstention from alcohol for 6 months commencing on 17 November 2020 and concluding on 16 May 2021.
11.	There is before the Tribunal a NSW Police Facts Sheet which provides a background of the incident which occurred on a train.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/Notice) AND RESPONSE
12.	On 7 December 2020, the Department sent to the applicant a NOICC based on the above conviction which suggested that s 116(1)(g) is enlivened.   
13.	On 11 December 2020, the applicant responded to the NOICC as follows:
•	He admitted to offending and has fully complied with the Court’s orders.  He is remorseful about his conduct and would not repeat the offending behaviour.  He has no prior convictions.
•	He has a history of depression and anxiety as a result of a speech disorder.  The incident occurred when he was under the influence of alcohol and he cannot remember the details of the incident due to the intoxication.  The incident was beyond his control.
•	He would like to complete his studies in Australia and cancellation would ruin his life and worsen his mental health.
14.	In support of the response, the applicant provided the following documents:
•	Birth Certificates for his children, born on 20 April 2015 and 9 June 2017.
•	Marriage Certificate of the applicant.
•	Community Correction Order of 17 November 2020.
•	Letter from Mr Hamid Attai, psychologist, dated 11 November 2020, essentially noting that the applicant has a “history of a syndrome of depression and anxiety that has been left untreated since childhood as a result of dysphemia – a speech disorder that causes him severe stuttering/stammering.”  Mr Attai commented that the applicant demonstrates a willingness to rectify his behaviour and has sought assistance for his underlying psychological issues.
•	Confirmation of Enrolments for Certificate IV in Commercial Cookery and Diploma of Hospitality Management at Salisbury College Australia.
•	NSW Police Facts Sheet in relation to the offence.
•	Police Clearance Certificate from Nepal dated 15 October 2020, a Police Clearance Certificate from Qatar dated 23 April 2017 and a Nationally Coordinated Criminal History Check Certificate dated 3 February 2020.
•	Copy of bail decision.
15.	The applicant provided written submissions to the Tribunal reiterating those made in the response to the NOICC.  He contended that cancelling his visa has meant that he has not continued with his studies but would like to do so.  He indicated that if he were to return to Nepal without a degree, this would cause great disappointment, stress and a worsening of his mental health challenges.  He reassures that he would not re-offend. 
16.	As well as a number of the documents provided to the Department, the applicant provided to the Tribunal a letter from DAMEC (Drug and Alcohol Multicultural Education Centre), dated 14 September 2021, referring to the applicant’s participation in 8 counselling sessions for 2 months and the successful completion of the counselling programs at DAMEC.  The letter referred to the impact of the COVID-19 pandemic, especially in Nepal, and the limited social support which contributed to the applicant’s experience of depression, anxiety and financial problems, which predisposed him to alcohol use and inappropriate behaviour.  The report mentioned that the issues also impacted on the applicant’s ability to study.  The report referred to DAMEC’s provision of anger management and alcohol and other drugs counselling to assist in developing coping skills, management of anger and the experiences of depression, anxiety and alcohol use.
17.	During the hearing, the applicant agreed that he has been convicted and sentenced as outlined above.  The Tribunal advised the applicant that the Tribunal considered the offence to be serious.  The Tribunal indicated that the Tribunal must accept the findings of the Court and that the conviction indicates that the ground for cancellation exists.  
18.	There is no dispute that the applicant has been convicted of an offence against laws in NSW.  Therefore 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).
19.	For those 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
20.	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
21.	The applicant was granted the student visa to enable him to undertake studies in Australia.  He came to Australia with the stated main purpose of obtaining an education.  He was enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management.  He advised the Tribunal that he is no longer studying due to the visa cancellation and that he has completed a substantial part of the Certificate IV in Commercial Cookery course.  He indicated that he would like to complete his studies in Australia.
22.	The Tribunal accepts that the applicant travelled to Australia to undertake studies and that he has partly completed the Certificate IV in Commercial Cookery course, consistent with his purpose for travelling to Australia.  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.  
23.	The Tribunal gives weight to this consideration in favour of the applicant.  
The extent of compliance with visa conditions
24.	There is no evidence of breach of visa conditions.  
25.	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)
26.	The applicant is now 30 years old.  He is married and has two young children.  His wife and children live with his parents in Nepal.
27.	There is before the Tribunal evidence, which the Tribunal accepts, that the applicant suffers from depression, anxiety and alcohol-related issues.  The evidence is that the applicant has made attempts to deal with those issues, including completing a program with DAMEC.  
28.	The Tribunal acknowledges that the cancellation of the applicant’s visa has the potential to cause the applicant worsening of the mental health issues, and could result in hardships including psychological, financial, employment and emotional to both the applicant and his family who would also be disappointed.  The Tribunal accepts that cancellation would disrupt the applicant’s studies in Australia and that, given the conviction, there might be challenges for the applicant in being able to complete his studies in another English-speaking country outside of Australia.
29.	The applicant may also experience difficulty in returning to Nepal or another country due to the current COVID-19 pandemic.  The Tribunal observes that the applicant could be eligible to apply for a Bridging E (Subclass 050) visa to enable him to remain in Australia temporarily until he is able to depart. 
30.	The Tribunal gives 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
31.	The circumstances in which the cancellation arose were as a result of the applicant being convicted of an offence.  As outlined above, the Tribunal takes the view that the offence is serious.
32.	The applicant expressed remorse and submitted that he has no prior convictions, that his behaviour is attributable to anxiety, depression and alcohol issues.  He assures that he would not re-offend and he asked for another chance to be a good person and citizen.  
33.	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 convictions but the applicant has been convicted of a serious first offence.  
34.	The applicant has assured that he would not re-offend and he has made clear attempts to address personal issues but those attempts do not overcome the Tribunal’s concerns of potential re-offending.  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…
35.	Although there are explanations for the applicant’s conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond his control.  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 that it is reasonable to assume that the Court took all relevant matters into account.    
36.	Although the Tribunal recognises that the applicant’s conduct might be perceived to be at the lower end of criminality, the Tribunal nevertheless considers the applicant’s offending conduct to be serious, involving a victim.  
37.	The Tribunal gives significant weight to this consideration in favour of cancellation.
Past and present behaviour of the visa holder towards the Department
38.	The applicant responded to the matters raised in the NOICC.
39.	The Tribunal gives this aspect weight in favour of the applicant.
Whether there would be consequential cancellations under s 140
40.	There is no evidence of consequential cancellation under s 140 of the Act.
41.	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
42.	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 public interest criterion (PIC) 4013 under Schedule 4 of the Regulations.
43.	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.  
44.	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
45.	The applicant has two minor children who live with their mother and grandparents in Nepal.
46.	Australia is a signatory to a number of international instruments, including the United Nations Convention on the Rights of the Child.  The Tribunal observes that Article 2 of the Convention provides that “States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. 
47.	Although there are international law opinions that “within their jurisdiction” does not limit the applicability of the Convention to children within a State’s territory – that is, Australia may have jurisdiction in respect of acts which produce effects outside its national borders, the Tribunal is satisfied that Departmental policy as expressed in PAM is that the best interests of children in Australia are to be treated as a primary consideration – not those outside.  In any event and as discussed in the course of the hearing, the Tribunal is of the view that although the children would be indirectly impacted by the cancellation, it is in the best interest of the applicant’s children for him to be reunited with his family.  The Tribunal does not intend to sound harsh or personal but the Tribunal is of the view that it is in the best interest of the children who are minors to be with both of their parents who can directly contribute to their care and wellbeing.  The applicant’s immediate family is in Nepal.
48.	The Tribunal is satisfied that in the case of cancellation, there would not be a breach of any of Australia’s international obligations.
49.	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
50.	The student visa is not a permanent visa. 
51.	The Tribunal gives this aspect neutral weight.
Any other relevant matters
52.	There are no other relevant matters.
CONCLUDING REMARKS
53.	The Tribunal has carefully considered the material before it independently and cumulatively.  The Tribunal recognises that the exercise of discretion is not a simple mathematical and/or formulaic process involving the counting of favourable and unfavourable considerations – it is a question of balancing all the relevant matters.  The Tribunal is satisfied that on balance, the considerations favourable to cancellation outweigh those in favour of the applicant.  The considerations favourable to the applicant relate to his own circumstances, such as a degree of hardship, but those personal consequences do not outweigh those in favour of cancellation; the applicant has committed a serious offence whilst the holder of a temporary visa.
54.	Considering the circumstances, the Tribunal concludes that the visa should be cancelled.
decision
55.	The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Antoinette Younes
Senior Member