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PATHAK (Migration) [2021] AATA  1255  (6 April 2021)

Last Updated: 14 May 2021

PATHAK (Migration)  [2021] AATA 1255  (6 April 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr BHUWAN PATHAK

CASE NUMBER: 2016166

HOME AFFAIRS REFERENCE(S): BCC2019/5473806

MEMBER: Michael Ison

DATE: 6 April 2021

PLACE OF DECISION: Melbourne

DECISION: The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 06 April 2021 at 5:24pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant had been convicted of common assault – family violence in the presence of applicant’s children – best interests of his children – applicant did not express any remorse for his offending – decision under review affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43


Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 28 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).

Background

  1. The applicant is Mr Bhuwan Pathak, who is a 39-year-old Nepalese national and who is referred to in these reasons for decision as the applicant. The Tribunal discussed the applicant’s immigration history in Australia which may be summarised as follows.
  2. The applicant first arrived in Australia on 24 July 2014 as the holder of a secondary Student (Subclass 573) visa that was valid to 15 March 2018. The primary Student visa holder was the applicant’s ex-wife, Ms [A].
  3. On 4 June 2018 the applicant was granted an onshore secondary Student (Subclass 500) visa that was valid to 10 October 2019.
  4. In June 2019 the applicant and Ms [A] separated. They have two children, aged [age] and [age] at the time of this decision, with their [one] child turning [age] within days of this decision. Given the issues raised in this review the Tribunal has chosen not to reveal the gender of the applicant’s children or any further personal information about them in these reasons.
  5. On 9 August 2019 the applicant applied for a further onshore Student (Subclass 500) visa, this time as the primary visa applicant. This application was granted on 10 October 2019.
  6. On 13 January 2020 the applicant was convicted of common assault in circumstances of aggravation by the Perth Magistrates Court after a two day contested hearing, for which he received a AUD4,000 fine payable to Ms [A], the victim of the assault. The applicant told the Tribunal he is paying the fine in instalments of AUD65 per fortnight and has been paying the instalments since he was convicted.
  7. On 28 October 2020 the applicant’s Student visa was cancelled and it is this decision that is the subject of the Tribunal’s review.
  8. On 3 November 2020 the applicant applied for a Bridging E (Subclass 050) visa and that application has not been determined by the Department at the time of this decision.
  9. The applicant was detained and placed in immigration detention on 17 November 2020 and at the time of this decision is being held in the Yongah Hill immigration detention centre (Yongah Hill) in Western Australia.

The primary decision

  1. The applicant provided the Tribunal with a copy of the primary decision made by a delegate of the Minister.
  2. The delegate cancelled the visa under s.116(1)(g) and r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations) on the basis that the applicant is the holder of a temporary visa, being a Student visa, and on 13 January 2020 was convicted of committing a criminal offence in Western Australia. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s visa should be cancelled.

Tribunal hearing

  1. The applicant appeared before the Tribunal by telephone on 1 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Punnet Singh, a former employer of the applicant, who gave evidence by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages, who participated in the hearing by audio-visual link.
  2. The applicant was represented in relation to the review by a practising lawyer, who also participated in the hearing by audio-visual link.
  3. The Tribunal had arranged with Yongah Hill for the applicant to appear before the Tribunal by audio-visual link. On the day of the hearing Yongah Hill could not establish an audio-visual link to the Tribunal. Both the applicant and the applicant’s representative agreed to the Tribunal hearing proceeding with the applicant participating by telephone.
  4. The Tribunal hearing was held during the COVID-19 global pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone and audio-visual link, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone and audio-visual link. The Tribunal was satisfied the applicant’s representative, the interpreter and the Tribunal could satisfactorily see, hear and understand each other throughout the hearing and could hear and understand the applicant throughout the hearing and hear and understand Mr Singh’s evidence, which was given in English.
  5. At the commencement of the Tribunal hearing the Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal explained the role of the interpreter as an aid to communication and offered the applicant the opportunity to object to the interpreter retained by the Tribunal. The applicant did not object. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and his representative toward the end of the Tribunal hearing on any matter they considered relevant to his review.

Pre-hearing submissions

  1. The applicant submitted his application for review with the Tribunal on 2 November 2020 and at that time provided a copy of the delegate’s primary decision.
  2. On 29 March 2021 the Tribunal received a 70-page submission on behalf of the applicant which attached documents including:
  3. The Tribunal has considered the oral evidence of the applicant and Mr Singh, the oral and written submissions made on behalf of the applicant and the information on the Tribunal’s copy of the Department’s file and the Tribunal’s file.
  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

  1. 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?

s.116(1)(g) - prescribed ground

  1. 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 r.2.43 of the Regulations. In the present case, the ground in r.2.43(1)(oa) is relevant. 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.
  2. Regulation 2.43(1)(oa) 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));

  1. In the applicant’s written submission the Tribunal received on 29 March 2021, the applicant provided sealed court documents confirming that on 13 January 2020 he was convicted in the Magistrates Court of Perth of a criminal offence. The applicant does not contest that there is a ground for the cancellation of his visa.
  2. The Tribunal finds that as the applicant was convicted of a criminal offence against the law of Western Australia on 13 January 2020 the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) and r.2.43(1)(oa) 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 matters in the Department’s Procedural Instructions, formerly known as its Procedures Advice Manual or PAM3, ‘General visa cancellation powers’. The Tribunal has used the headings from the Department’s Procedural Instructions for ease of reference only.
  2. The Tribunal explained to the applicant during the Tribunal hearing that it is not the Tribunal’s role to punish the applicant for his criminal offending. The Tribunal noted to the applicant that he has been sentenced by the courts under the criminal law of Western Australia and once he completes that sentence, he will be considered to have been appropriately punished for the offence he has been convicted of. Put another way, punishment of the applicant (by the Tribunal) is not a relevant consideration for the Tribunal in the exercise of its discretion during this review.

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

  1. The applicant told the Tribunal the main reason he wishes to stay in Australia is to be near his children, although he would also like to complete and continue his studies, particularly given he has only a small number of units to complete his Certificate III in Commercial Cookery. The applicant provided evidence of his academic progress and that his study has been affected by the impacts of the COVID-19 global pandemic in Australia. The Tribunal accepts this evidence.
  2. The Tribunal accepts that the applicant has a compelling reason to remain in Australia to be near his children, who continue to reside in Australia with their mother. However, the weight the Tribunal may have otherwise given this consideration is significantly ameliorated in the applicant’s circumstances by the Tribunal’s findings below in relation to what is in the best interests of the applicant’s children in Australia.
  3. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

The extent of the applicant’s compliance with their visa conditions

  1. The applicant gave evidence that he has complied with the conditions attached to the visas he has held while in Australia. There is no information to the contrary before the Tribunal.
  2. The applicant provided copies of 26 pay statements from his employer, Chhina Enterprises Pty Ltd, to demonstrate that he has complied with condition 8105 from Schedule 8 of the Regulations that was attached to his Student visa.
  3. This condition limits Student visa holders to working no more than 40 hours per fortnight while classes are in session. The Tribunal accepts this evidence indicates the applicant has complied with condition 8105.
  4. Mr Singh gave evidence that he employed the applicant at his restaurant called La Calabria that Mr Singh operates in the Dog Swamp shopping centre in Yokine, Western Australia. Mr Singh’s evidence was that the applicant gained employment by attending the restaurant and providing his curriculum vitae and was employed as a cook from mid-2019 until late 2020, prior to being detained in immigration detention. The Tribunal accepts Mr Singh’s evidence.
  5. The Tribunal finds that the only information before the Tribunal is that the applicant has complied with the conditions of the visas he has held while in Australia.
  6. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

  1. The applicant’s representative submitted in the written submission dated 28 March 2021, that:
    1. As noted above, the applicant has two children in Australia. The applicant was a consistent presence in the children’s lives prior to his separation from the children’s mother, Ms [A]. The applicant was also the sole financial provider for the children during this time.
    2. The applicant has not had recent contact with the children due to the presence of a without admission Conduct Agreement Order preventing the applicant from contacting Ms [A]. Once the applicant is released back into the community, it is his intention to apply for parenting orders enabling him to have ongoing contact with the children.
    3. Should the applicant’s visa remain cancelled, it is submitted that the children would suffer emotional and psychological harm of being deprived of a meaningful relationship with their father, who was ever-present in their lives prior to his separation from their mother.
    4. Further it is submitted that the children would suffer financial hardship if the applicant was unable to remain in Australia. The applicant was the sole financial provider for the children prior to his separation from Ms [A], and would be able provide financial support to the children in the future should he be allowed to remain in Australia. The applicant has worked consistently since arriving in Australia (making all required tax contributions) and would be able to resume working with his former employer, Chhina Enterprise, if his visa were reinstated. Annexed at pages 50 to 55 are copies of the applicant’s 2017 and 2018 tax returns demonstrating his strong employment history and tax contributions to date.
  2. The delegate’s primary decision referred to a letter the applicant had given to the Department. This was an undated letter written by a Nepalese lawyer on Ms [A]’s behalf, which makes a number of allegations against the applicant in relation to his role in the family unit prior to his separation from Ms [A]. The Tribunal was unable to test these allegations and has no other information to support them. For these reasons, the Tribunal has given these allegations no weight in this review.
  3. The applicant gave evidence that he last had physical contact with his daughters on 18 July 2019, prior to his separation from Ms [A], and has not spoken to Ms [A] or his children since July 2019 because of the interim Family Violence Restraining Order dated 12 July 2019 and the final Conduct Agreement Order dated 11 September 2019, both of which have full non-contact conditions.
  4. The applicant’s evidence is he is a hardworking, honest person who thinks about his children a lot and that whatever he will do in the future will be for his children, who he misses greatly. The applicant gave evidence he is concerned Ms [A] cannot financially provide for their children and he does not wish to leave Australia as he will be very far from his children, who he will miss a lot. The applicant confirmed there are no Family Court Orders in place and he has not been able to arrange or gain access to his children prior to and since being held in immigration detention.
  5. The applicant expressed concern about the impact the cancellation of his visa would have on his children and their development.
  6. The applicant’s evidence is that cancellation of his visa will cause him financial hardship as he has an offer of ongoing employment in Australia and returning to Nepal without Australian qualifications would be a significant adjustment and challenge for him. Mr Singh gave evidence, which the Tribunal accepts, that he found the applicant to be an excellent and reliable worker and he rates the applicant in the top 10 of his employees at the several restaurants Mr Singh owns. Mr Singh said the restaurant the applicant had been employed at had struggled since the applicant was detained in immigration detention and he would definitely re-employ the applicant if the applicant had the right to stay and work in Australia. Mr Singh told the Tribunal he considers the applicant a great human being who has gone through a difficult time with his separation from Ms [A] and his children and the applicant is deserving of support and Mr Singh would be happy to support him. The Tribunal accepts Mr Singh’s evidence of the applicant’s employment history and the high personal regard Mr Singh has for the applicant.
  7. The Tribunal accepts that the cancellation of the applicant’s visa will cause him ongoing emotional and financial hardship, particularly as it would mean he would remain in immigration detention until he departs or is deported from Australia.
  8. The applicant also gave evidence that the cancellation of his visa would affect his elderly parents back in Nepal. The applicant told the Tribunal his father is 84 years of age and his mother is 75 years of age and while they have not and do not provide him with any financial support, they have been deeply affected by what has happened to him, would be directly affected if the applicant is unable to financially support them and miss not being able to see their grandchildren. The Tribunal accepts this evidence.
  9. Normally, the Tribunal would give this consideration in circumstances such as the applicant’s, significant or great weight against the cancellation of his visa. However, in the applicant’s circumstances it is not the cancellation of his visa that would cause the separation of the applicant from his children, but the Conduct Agreement he has consented to, which in the Tribunal’s view ameliorates to a considerable degree the hardship that cancellation of the applicant’s visa would cause to the applicant and to a lesser extent to his parents in Nepal.
  10. Similarly, it is apparent to the Tribunal that Ms [A] has cared for and raised their children on her own and using her own resources, apart from the AUD65 per fortnight the applicant pays to her by way of paying the fine for his criminal conduct, for the past nearly two years. There is no evidence before the Tribunal of Ms [A]’s or the children’s present circumstances, including financial circumstances, and there is no evidence to support a finding by the Tribunal that the cancellation of the applicant’s visa would cause them financial hardship.
  11. The Tribunal accepts that the cancellation of the applicant’s visa may cause the children some emotional hardship, particularly for the eldest child who was used to having the applicant in her life for the first three years of her life. However, the Tribunal notes the applicant has not had any contact with his children since July 2019, which means he has not had contact with his youngest child for the majority of that child’s life and only had contact with his eldest child between birth until the child was just over three years of age.
  12. Given the lack of evidence before the Tribunal about the children’s present circumstances, the Tribunal considers the duration of the separation of the applicant from them caused by court orders rather than the cancellation of the applicant’s visa, reduces but does not eliminate any emotional hardship the children may suffer due to the cancellation of the applicant’s visa.
  13. The Tribunal also considered any psychological hardship the applicant may be experiencing and asked the applicant whether he had any pre-sentence or other psychological assessment. The applicant told the Tribunal he had not been assessed by a psychologist and does not have any mental health issues. The Tribunal accepts this evidence.
  14. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and, reflecting the ameliorating factors in the applicant’s circumstances, gives this consideration considerable weight.

The circumstances in which the ground for cancellation arose. Were the circumstances in which the ground for cancellation arose was beyond the applicant’s control?

  1. The applicant’s representative submitted in the written submission dated 28 March 2021, that:
    1. As acknowledged above, a ground for visa cancellation has arisen by virtue of the applicant’s conviction for one count of aggravated common assault on 13 January 2020. The applicant was found guilty following trial and was sentenced to a fine of $4,000.
    2. With regards to the circumstances of the offending, the applicant was found guilty of hitting his ex-wife, Ms [A], with an open palm whilst at their home on 10 June 2019.
    3. The applicant has no prior criminal record and no previous history of family violence, both in Australia and Nepal. Annexed at page 56 is a copy of the applicant’s Nepalese police certificate. On this basis, such offending can be regarded as out of character.
    4. Despite the applicant’s offending being an aberration for him, it is accepted that the circumstances of the ground of cancellation arising were not outside of applicant’s control.
    5. Notwithstanding this, it is noted that the applicant was convicted on 13 January 2020 and remained in the community until 17 November 2020. No further offending occurred during this time, and the applicant fully complied with the terms of his without admission Conduct Agreement Order.
    6. Moreover, the applicant has participated in a number of programs since being moved to immigration detention. Such programs include Ngala Dads WA workshops, Men’s Group personal development and Lifeskills. Annexed at pages 57 to 63 are certificates confirming the applicant’s participation in these programs.
    7. As such, it is submitted that there is minimal risk of the applicant re-offending.
  2. The Tribunal accepts these submissions, subject to the Tribunal’s comments which follow. According the applicant’s evidence, he has not been assessed for the risk of re-offending or future violence and the Tribunal does not accept that the information and evidence before it demonstrates that the applicant has minimal risk of re-offending.
  3. The applicant’s evidence is that what occurred on 10 June 2019 that led to him being charged with assault, was a verbal argument.
  4. The Tribunal read to the applicant part of an undated written submission he made to the Department:

... my ex-wife has fabricated the court charges against me just to find a way to stay in Australia, that is protection visa. ... She was continuously failing in her studies and when she was running out of her student visa in December 2019, she provoked a fight and used it press charges against me to secure a protection visa, in order to stay in Australia. She pressed charges against my family and me in home country (Nepal) as well which are baseless and there is no court decision.

  1. The applicant told the Tribunal he recalled writing that submission and it remains his view his wife fabricated the allegations of assault against the applicant in order to secure a visa to prolong her stay in Australia.
  2. The Tribunal shared information from the Department’s file with the applicant in accordance with the procedure set out in s.359AA of the Act by reading the following to the applicant:

Mr Pathak, I have some information that you have not provided to me that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review. Now, I have not made up my mind about this information yet.

The information was on the Department file the Tribunal has been given a copy of. Because you have not provided that information to me I am going to explain to you what that information is, how it is relevant to your review and what are the potential consequences for your review if the Tribunal relies on the information. I am then going to invite you to comment on or respond to the information.

The information is a one-page document titled “Statement of Material Facts”. I don’t know who wrote the document or how it came to be on the Department’s file. It appears to be a document from the Western Australian Police.

This document makes the following allegations against you:

This information is relevant to your review because it is not consistent with your explanation of the circumstances of the cancellation of your visa and provides considerably more detail about the family violence you committed against Ms [A] and this information is relevant to the Tribunal’s consideration of the circumstances that led to the cancellation of your visa and also what is in the best interests of your children.

Do you understand the relevance of this information to your review?

The consequences for your review if the Tribunal relies on the information it has shared with you is that:

The Tribunal could also form the following views:

Do you understand the consequence for your review if the Tribunal relies on this information?

Mr Pathak, I am shortly going to invite you to comment on or respond to the information I have shared with you today. But you do not have to do so straight away. If you would like additional time to consider the information I have shared with you before commenting upon it or responding to it, then I will consider any request you make. I am prepared to allow you to discuss that with [your representative].

  1. The applicant responded at the relevant times that he understood the relevance of the information shared with him to his review and also understood the consequences for his review if the Tribunal relied upon the information.
  2. The applicant requested additional time to discuss the information the Tribunal had shared with him with his representative and the Tribunal agreed to this request and adjourned the hearing for a short time.
  3. When the Tribunal hearing resumed the applicant responded that he had a verbal argument with Ms [A] when his children were present, but that he did not do anything indecent to a child or any harmful action to Ms [A].
  4. The applicant told the Tribunal that he lived with Ms [A] and their children until 21 June 2019, when Ms [A] returned to Nepal with the children and her grandmother, without informing the applicant. The applicant alleges Ms [A] accessed joint finances and property and also took the applicant’s passport with her without telling the applicant.
  5. The applicant alleges Ms [A] returned to Australia on 12 July 2019 when she made allegations of being a victim of family violence leading to the interim Family Violence Restraining Order dated 12 July 2019 being issued and the applicant having to leave the family home. The applicant told the Tribunal Ms [A] made formal allegations to the police, resulting in the applicant being called into the police station and subsequently charged.
  6. The Tribunal does not accept the evidence of the applicant that what occurred on 10 June 2019 was a verbal argument only. The applicant has been found guilty of assaulting Ms [A] and there is no information before the Tribunal to indicate the applicant is appealing that decision or that it is in any way unsound. The Tribunal acknowledges that a verbal argument could support a charge of assault, but that is not the evidence or information before the Tribunal in this case.
  7. The difficulty for the Tribunal is that because the applicant contested the criminal charge, there is no agreed statement of facts that would have been read to the court during a plea hearing if there had been a plea of guilty entered. This means the Tribunal does not know what allegations of the Western Australian police the Magistrate who found the applicant guilty accepted.
  8. However, the applicant’s representative submitted in writing that the applicant was found guilty of hitting Ms [A] with an open palm, as quoted in paragraph 51 of these reasons, and the Tribunal has accepted this submission. It is also not contested that this assault occurred in the presence of the applicant’s children.
  9. The applicant signed the submission made by his representative on his behalf, acknowledging that he had read the submission and his representative had explained the submission to him and that he agreed with what was submitted to the Tribunal. The Tribunal confirmed with the applicant during the hearing that he had read and understood the written submissions his representative mad eon his behalf and agreed with those submissions.
  10. The fact that the Magistrate recorded a conviction upon a first offence and ordered the applicant to pay a AUD4,000 fine, made payable to Ms [A], reflects in the Tribunal’s view that the applicant was assessed by the Magistrate as having a degree of criminal culpability that is consistent with the submission of the applicant’s representative that the applicant was found guilty of assaulting Ms [A] by hitting her with an open palm and was not found guilty on the basis that there was only a verbal argument.
  11. The Tribunal read the applicant the following extract from the delegate’s primary decision during the hearing:

Mr Pathak’s claim that Ms [A] was failing in her studies is not supported by her academic record. The Department has access to the Provider Registration and International Students Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and study records of international students registered to study in Australia. PRISMS indicates Ms [A] successfully completed four diploma courses in marketing and management, with her last day of study being 8 October 2019.

  1. The applicant told the Tribunal that Ms [A] changed education providers shortly after commencing her study to a provider who did not care about students academic progress, only about the payment of course fees every three months. The applicant said that Ms [A] only received her first certificate for completing a course in Australia in 2019. The applicant told the Tribunal he did not know which course Ms [A] completed because by then they had separated.
  2. There is no documentary or other evidence before the Tribunal to support the applicant’s claims in this regard and the Tribunal makes no findings in relation to them.
  3. There is no information before the Tribunal that the circumstances in which the ground for cancellation of the applicant’s visa arose occurred due to circumstances beyond the applicant’s control. The Tribunal accepts the submission of the applicant’s representative, and finds that the circumstances in which the ground for cancellation of the applicant’s visa arose were not beyond his control.
  4. The Tribunal finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.

The past and present behaviour of the applicant towards the Department

  1. The applicant told the Tribunal that he has not had any adverse dealings with the Department. The Tribunal accepts this evidence. The delegate recorded in the primary decision that there was no information before the delegate of any adverse past or present behaviour by the applicant toward the Department and that the applicant responded to the Notice of Intention to Consider Cancellation of a visa in a timely manner.
  2. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives it some weight.

Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

  1. The applicant told the Tribunal that there is no-one dependent upon his visa. The Tribunal accepts this evidence.
  2. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

  1. The Tribunal explained to the applicant in detail the mandatory legal consequences that would flow from the cancellation of his visa. These consequences include the applicant would continue to be an unlawful non-citizen under s.189 of the Act and would be detained and could also be deported under s.190 of the Act. Cancellation of the applicant’s visa would also mean that s.48 of the Act would apply to the applicant to prevent the applicant from applying for some visas while the applicant remains in Australia.
  2. Because the applicant’s visa, if cancelled, would be cancelled under s.116 of the Act it also means the applicant would become affected by what is known under the Act as a “risk factor”. The effect of being affected by a risk factor is the applicant would be precluded under Public Interest Criteria 4013 in Schedule 4 of the Regulations from being able to apply for another visa to return to Australia for a specified period, currently three years, unless there were relevant compassionate or compelling circumstances justifying the grant of a visa within the specified period.
  3. The Tribunal indicated to the applicant’s representative when discussing this consideration, that the Tribunal could find that for people in the applicant’s circumstances, being someone who has been convicted of a criminal offence in Australia, it is an intended outcome of the migration law that their visa be cancelled, leading the Tribunal to find that this consideration weighs in support of the cancellation of the applicant’s visa.
  4. The applicant’s representative submitted that the mandatory legal consequences of significance relate to the non-refoulement or medical issues or the possibility of indefinite detention, none of which are claimed by the applicant. The applicant’s representative submitted that in the applicant’s circumstances the better view is that this consideration weighs neither in support of, nor against, cancellation of the applicant’s visa.
  5. The Tribunal accepts these submissions.
  6. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

  1. The applicant does not claim that Australia owes him statutory or other protection obligations or that Australia could be found to be in breach of its non-refoulement obligations by returning him to Nepal. However, the applicant’s circumstances do engage Australia’s obligations under international agreements in relation to the rights of the applicant’s children who are in Australia.
  2. The guidelines set out in the Department’s Procedural Instruction titled ‘General visa cancellation powers (s109, s116, s128, s134B and s140) on visa cancellation’, state:

The obligation to consider the best interests of the child applies to those children who are under 18 years old (noting that the child must have already been born) and the obligations apply only to children who are within Australia’s territory or jurisdiction.

  1. The Tribunal accepts the applicant has two children in Australia. There is no information before the Tribunal about their citizenship.
  2. Australia is a signatory to the Convention on the Rights of the Child[1] (CRC). Article 3.1 of the CRC provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

  1. Article 7.1 of the CRC provides:

The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

  1. This means the impact the cancellation of the applicant’s visa will have on the applicant’s children in Australia becomes a primary consideration for the Tribunal in weighing overall whether the discretionary considerations weigh against or support the cancellation of the applicant’s visa.
  2. The applicant’s representative submitted in the written submission dated 28 March 2021, that:
    1. It is submitted that non-cancellation of the applicant’s subclass 500 visa would be in the children’s best interests. The applicant played an active part in the children’s life prior to his separation from Ms [A] and, furthermore, was their sole financial provider. Cancellation of the applicant’s visa would prevent the children from having any meaningful contact with their father for the foreseeable future. It is submitted that the children would suffer emotional and financial hardship should the applicant be required to leave the country.
  3. The applicant gave evidence that it would be in the best interests of his children if his visa was not cancelled. The applicant’s evidence was that if he is released from immigration detention and able to stay in the community he will either seek Ms [A]’s agreement or a Family Court order allowing their children to spend time equally with the applicant and Ms [A]. The applicant’s evidence was this arrangement would not cause stress to his children and would be in their best interests because he would then be able to provide for them financially, they would not need to search for their father and there will not be any future problems. The Tribunal notes and accepts that the applicant has an ongoing offer of immediate employment should he be living in the community again.
  4. The Tribunal accepts that both parents being able to have an active role in the lives of their children is generally in the best interests of those children, but notes this is not an absolute proposition under the CRC or otherwise.
  5. The Tribunal accepts that the applicant loves his children. The Tribunal also acknowledges that the applicant lived in the community for over 10 months between his conviction and being detained in immigration detention without there being any evidence of further offending before the Tribunal. The applicant told the Tribunal that in future he would not get involved in such activities, meaning family violence, deliberately or otherwise.
  6. The Tribunal also accepts the applicant has completed a number of self-improvement and counselling course while in immigration detention. The Tribunal asked the applicant what he had learned from the courses he had undertaken in immigration detention. The applicant responded that the classes were in groups of 15 to 20 people and he had learned how to participate in group discussions, about teamwork, how to present to a group and how to interact socially. The applicant’s responses did not indicate how the courses had helped him to understand the causes of his behaviour that led to his criminal conviction or how to avoid behaving like that again in future.
  7. The Tribunal asked the applicant if he had undertaken any courses or counselling prior to his criminal conviction or in the 10 months he lived in the community after his conviction and prior to be detained in immigration detention. The applicant said he had not because most courses focused on drug or alcohol issues and he does not consume either, they are not a part of the applicant’s lifestyle.
  8. The difficulty for the Tribunal in accepting the applicant’s evidence about what is in the best interests of his children is that despite being convicted of physically assaulting the mother of his children, while those children were present including the youngest being held by Ms [A] at the time of the assault, the applicant maintains the assault was only verbal and not physical.
  9. The applicant’s insistence that his assault of Ms [A] was only verbal caused the Tribunal great concern. The Tribunal has found, based on the evidence before it, that the assault was physical. Of further concern to the Tribunal was that the applicant also did not express any remorse for his offending. If the applicant cannot bring himself to feel remorseful toward Ms [A], then the Tribunal expected that if he had gained at least some genuine insight into his offending, its causes and effects, he would have expressed remorse for his actions toward his own children. The applicant did not. These circumstances cause the Tribunal to find that the applicant’s evidence about the circumstances of his assault of Ms [A], where he considers himself to be a victim of false allegations made by Ms [A], demonstrates the applicant continues to lack insight into his offending, its causes and its effects, particularly on his children.
  10. The significantly detrimental and long-term impacts for the health and safety of victims of family violence, including children who are exposed to family violence, are now widely recognised and accepted. It is unequivocally not in the best interests of children to be in a family unit or other environment where they are exposed to family violence being perpetrated against any member of the family, including the children themselves. Being exposed to family violence means those who are exposed also become victims of that violence.
  11. This is recognised in the CRC, article 9.1 of which provides:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

  1. The Tribunal is not prepared in the applicant’s circumstances to find that it is in the best interests of the applicant’s children that his visa not be cancelled. The Tribunal remains very concerned about the applicant’s apparent lack of insight into his offending and the absence of any remorse for that offending. The applicant exposed his children to family violence on 10 June 2019 when he assaulted Ms [A] and it is in the best interests of the applicant’s children that they not be exposed to the applicant (or anyone else) perpetrating family violence or the risk of family violence being perpetrated in the future.
  2. The Tribunal finds that this consideration supports the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.

If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

  1. The applicant’s visa is a temporary visa.
  2. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

Any other relevant matter

  1. The applicant’s representative provided detailed oral submissions toward the end of the Tribunal’s hearing, which the Tribunal has taken into consideration in these reasons. Those submissions were helpful to the Tribunal in the conduct of this review and the Tribunal thanks the applicant’s representative for making them.
  2. The applicant’s representative also submitted that the evidence of Mr Singh that his La Calabria restaurant had struggled since the applicant had been detained and the business interests of an Australian citizen should weigh against the cancellation of the applicant’s visa. Mr Singh gave oral evidence that he is an Australian citizen. The Tribunal accepts this submission, particularly during the COVID-19 global pandemic, the effects of which have had a significantly negative impact on many businesses and people’s employment.
  3. The Tribunal finds this support for the applicant, particularly an ongoing offer of employment and his contribution to that Australian owned business, weigh against the cancellation of his visa and the Tribunal gives this consideration some weight.

Conclusion

  1. Considering the circumstances as a whole, the Tribunal concludes that the applicant’s Student visa should be cancelled.
  2. The discretionary considerations that weigh in support of the cancellation of the applicant’s Student visa are:
  3. The discretionary considerations that weigh against the cancellation of the applicant’s Student visa are:
  4. The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Student visa are:
  5. In the applicant’s circumstances, after carefully weighing all of the discretionary considerations, the Tribunal has come to the view that those considerations that weigh in support of the cancellation of the applicant’s Student visa outweigh those considerations that weigh against the cancellation of the applicant’s Student visa.
  6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

  1. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.



Michael Ison
Senior Member

[1] Adopted and opened for signature, ratification and accession by the General Assembly of the United Nations resolution 44/25 of 20 November 1989, entry into force on 2 September 1990 in accordance with article 49 and ratified by Australia on 17 December 1990.

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