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Harijan (Migration) [2021] AATA 2201 (21 May 2021)

Last Updated: 9 July 2021

Harijan (Migration) [2021] AATA 2201 (21 May 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Bharat Harijan

CASE NUMBER: 2003360

HOME AFFAIRS REFERENCE(S): BCC2019/4640723

MEMBER: Michael Ison

DATE: 21 May 2021

PLACE OF DECISION: Melbourne

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


Statement made on 21 May 2021 at 4:44pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – risk to the health or safety of an individual – applicant convicted of criminal offences and imprisoned – criminal appeal delayed – mutual communication with spouse during interim intervention order – applicant claims wrongful conviction – financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8564

CASES

Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 5 February 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 in this review is Mr Bharat Harijan, who is a 27-year-old Nepalese national. Mr Harijan is referred to as the applicant in these reasons for decision. The Tribunal discussed the applicant’s immigration history in Australia with the applicant, which may be summarised as follows.
  2. The applicant arrived in Australia as the holder of a Student (Subclass 500) visa on 25 March 2017.
  3. On 5 February 2020 the applicant’s Student visa was cancelled by a delegate of the Minister for Home Affairs.
  4. On 19 March 2020 the applicant was granted a Bridging E (Subclass 050) visa. The applicant’s Bridging E visa has conditions 8101 (no work), 8207 (no study), 8401 (report as directed), 8506 (notify change of address) and 8564 (not engage in criminal conduct) from Schedule 8 to the Migration Regulations 1994 (the Regulations) attached.
  5. The applicant was granted a second Bridging E visa on 17 March 2020 with the same conditions attached. The applicant continues to hold that Bridging E visa at the time of this decision.

The primary decision

  1. The applicant provided the Tribunal with a copy of the primary decision.
  2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the applicant was charged with aggravated assault (no weapon) against a child or spouse by the South Australian police on 20 January 2019. The delegate formed the view that this meant the applicant’s presence in Australia is or may be a risk to the health or safety of an individual, being the applicant’s wife. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

Applicant’s representative

  1. The applicant was represented in relation to the review by Ms Ursula Matson of Scammell & Co. Barristers and Solicitors, a practising lawyer. Ms Matson represented the applicant both before the Tribunal and in his criminal law proceedings. Ms Matson was acting in part pro bono for the applicant and it was of great assistance to the Tribunal in the conduct of this review to have Ms Matson’s assistance, particularly given Ms Matson’s knowledge and understanding of the applicant’s criminal law proceedings.
  2. Ms Matson is referred to in these reasons as the applicant’s representative or the representative.

Tribunal hearings

  1. The applicant appeared before the Tribunal by telephone on 22 October 2020, 11 January 2021, 12 March 2021, 9 April 2021 and 29 April 2021 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Nepali and English languages who also participated in the hearings by telephone.
  2. The Tribunal conducted multiple hearings because:
  3. The representative participated in each of the Tribunal hearings, by telephone.
  4. The Tribunal hearings were held during the COVID-19 global pandemic. The Tribunal determined it was reasonable to hold the hearings by telephone, 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 hearings were not to be conducted by telephone. The Tribunal was satisfied the applicant, his representative, the interpreter and the Tribunal could satisfactorily hear and understand each other throughout each of the hearings. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments to the Tribunal in support of his application for review.
  5. The Tribunal offered to conduct the applicant’s hearings by video but due to technology issues the applicant and his representative were unable to participate in hearings by video. In those circumstances the applicant agreed his review could proceed by the hearings being conducted by telephone and the Tribunal proceeded on that basis.
  6. At the commencement of the first hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether he had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated he did not. The Tribunal reminded the applicant about the role of the interpreter at the commencement of each subsequent hearing.
  7. At the commencement of the Tribunal hearing on 29 April 2021 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 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 the applicant’s review.

Pre-hearing submissions

  1. On 16 October 2020 the Tribunal received a submission on behalf of the applicant which attached documents including:
  2. On 22 October 2020 the Tribunal received a submission on behalf of the applicant which attached documents including:
  3. On 10 November 2020 the Tribunal received a submission on behalf of the applicant advising that the applicant’s criminal trial was resuming on 10 December 2020 and that a verdict may not be reached until early 2021.
  4. On 22 December 2020 the Tribunal received a submission on behalf of the applicant advising that the applicant’s criminal matter was adjourned to 15 February 2020 when the Magistrate is expected to hand down his verdict. The applicant’s representative requested that the January Tribunal hearing date be maintained to allow the applicant’s representative to discuss procedural and other matters with the Tribunal.
  5. On 25 February 2021 the Tribunal received a submission on behalf of the applicant which attached documents including:
  6. On 6 April 2021 the Tribunal received a one-page written statement from the applicant’s representative.
  7. On 9 April 2021 the Tribunal received several emails on behalf of the applicant which attached documents including:
  8. On 22 April 2021 the Tribunal received a submission on behalf of the applicant which attached documents including:
  9. On 26 April 2021 the Tribunal received a submission on behalf of the applicant which attached a 4-page written statement from the applicant’s representative.
  10. On 6 May 2021 the Tribunal received an email from the applicant’s representative advising that the breach of intervention order charge had been withdrawn on 30 April 2021 and offering to obtain a certified court document to confirm this. On 7 May 2021 the applicant’s representative sent the Tribunal a copy of the Certificate of Record from the Magistrates’ Court of South Australia confirming the charge of contravene a term of an intervention order against the applicant was withdrawn on 30 April 2021. The Tribunal accepts this evidence.
  11. The Tribunal also received various other correspondence from the applicant and his representative in relation to arranging their participation in the Tribunal hearings and other administrative matters.

Tribunal decision

  1. The Tribunal has had regard to the applicant’s oral evidence, all of the information in the written and oral submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Tribunal’s copy of the Department’s file.
  2. 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 the Minister is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the grounds set out in s.116(1)(e) which states:

(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii) the health or safety of an individual or individuals;

  1. If satisfied that a 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)(e)(ii) - risk to the health or safety of an individual

  1. A visa may be cancelled under s.116(1)(e)(ii) if the Minister is satisfied that the presence of the visa holder in Australia is or may be a risk to the health or safety of an individual, in this case the applicant’s wife. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
  2. The Tribunal asked the applicant whether he agreed that there was a ground for the cancellation of his Student visa. The applicant told the Tribunal he does not agree.
  3. The applicant was found guilty of assaulting his wife on 20 January 2019. The Magistrate who found the applicant guilty and convicted him of aggravated assault made the following sentencing remarks:

Following a trial I found you guilty of assaulting your wife, [name deleted].

The assault occurred in circumstances where there was an arrangement whereby you would hand over your car to her, to enable her to sell that vehicle and pay some debts. When she refused to get into the car, you got out, followed her and the assault occurred.

My finding was that you put both your hands around her neck in a choking fashion, and proceeded to apply some force. The force was sufficient to cause redness and other marks observed by a doctor and a police witness not all that long after the event. I was not able to make a find though that the pressure was such as to cause [name deleted] to become unconscious, however it was still a serious assault.

The law provides for a four-year maximum sentence of imprisonment. You have no prior convictions. You are now 26 years-of-age.

You and [name deleted] were married in Nepal and came to Australia in 2017. Not long after that clear difficulties arose in the relationship. [Name deleted]’s view, clearly expressed over a period of time, was that you were not providing her with adequate emotional or financial support. Your view by inference, in the various messages, was that you were providing as much support, both financially and emotionally as you could. In any event by the time the offending had occurred you were separated.

I am advised that a sentence of imprisonment over a certain period – I think 12 months - is likely to affect your visa but I accept the prosecution’s submission that that is not a factor that should weigh on the way I deal with the offending today. I am told that following the breakdown of the relationship your mental health has not been good, particularly with this case and one in relation to your visa being dealt with. Turning back to the offending itself, I regard it as serious, even though I was not able to be satisfied that your conduct caused [name deleted] to fall unconscious, it was sufficiently serious to make a number of marks to her neck which were observable the following day.

Any form of strangulation – which is the word I will use – by using both hands around her neck is a very serious example of an assault because of the potential consequences for the victim.

I regard a sentence of 12 months imprisonment as the appropriate sentence. I will fix a non-parole period of seven months.

Although there was no plea of guilty, I am satisfied your personal circumstances are such as to warrant suspension of that term of imprisonment on you entering a 12 month bond to be of good behaviour. What that means is you will not have to serve the sentence of imprisonment but if you breach the good behaviour bond, you may well have to serve it. Do not leave the court without signing the good behaviour bond. I will waive the court costs.

As part of the sentencing process I will issue an intervention order pursuant to s 28 of the Sentencing Act 2017 in accordance with the document that the prosecutor will provide which is a full non-contact order. (sic)

  1. The applicant’s evidence to the Tribunal is that he feels he has been set up by his wife. In the undated submission received by the Tribunal on 16 October 2020, the applicant’s representative submitted on his behalf:

Our instructions are that the complainant has concocted the allegations and done so out of malice for the Applicant. The allegation in question was made by the complainant against a history of the complainant being constantly upset with the Applicant for not giving her sufficient money and specific amounts of money that she demanded throughout their relationship. We are instructed that throughout their relationship, each time the complainant was dissatisfied with the money the Applicant contributed to their relationship, and was unable to pay specific amounts of money to her when she demanded it, she threated to divorce him amongst other threats including ones designed to ruin his reputation and to prevent him from staying in Australia. Just prior to the alleged assault, she was extremely unhappy with him for not giving her several thousands of dollars to repay a fellow student she borrowed money from to pay the rest of her university fee. Although the Applicant had paid a large portion of this university fee already and as much as was available to him, when he couldn’t pay this specific amount to her, she became very angry, arranged a meeting at 10pm down a dark unpopulated street and away of his house and many housemates where they originally agreed to meet at around 5pm during daylight, and then concocted these allegations using a close friend, [name deleted] as a witness.

  1. Even though this represents the applicant putting forward his version of events and a potential implied waiver of his privilege against self-incrimination, the Tribunal did not treat this submission as an implied waiver of the applicant’s privilege.
  2. The Magistrate rejected the applicant’s version of events, which included an admission from the applicant that he did follow his wife when she refused to get in his car and then, according the applicant, went to give her a hug, she pushed him away and he touched her neck as he went to steady himself and he was then kicked by his wife and her friend subsequently joined in that alleged assault. The Magistrate found the evidence of the applicant’s wife to generally be credible but prone to exaggeration and her friend’s evidence to be entirely credible and that there was medical evidence of marks to the neck of the applicant’s wife and statements from the attending police officers of observing marks to the neck of the applicant’s wife that were consistent with her evidence of being choked by the applicant.
  3. The Magistrate imposed a 12-month sentence of imprisonment with a non-parole period of seven months, entirely suspended, subject to the applicant entering into a bond to be of good behaviour. The maximum penalty available to the Magistrate was four years imprisonment. The applicant pleaded not guilty which means he did not receive the sentencing discount a guilty plea attracts but the Magistrate noted his age, lack of prior convictions and immigration status in Australia as a visa holder. This sentence reflects in the Tribunal’s view that the Magistrate considered the assault to be serious and the moral culpability of the applicant to be at the lower to medium level on the continuum of criminality.
  4. In addition, the applicant was charged with one charge of breaching the interim intervention order that was issued after the assault. The interim intervention order was not a full non-contact order. The South Australian police allege that the applicant sent his wife text messages between 28 April 2019 and 21 May 2019 asking her to drop the assault charge and threatening to use social media to ruin both their reputations if she did not. The police allege the applicant’s wife felt harassed and threatened by these messages. The interim intervention order included a condition that the applicant must not assault, threaten, harass or intimidate his wife. The applicant was interviewed by police and admitted sending text messages asking his wife to drop the assault charge but not to sending messages threatening to use social media and told police his intentions were to reconcile with his wife, not threaten her.
  5. In an undated submission received by the Tribunal on 23 April 2021 the applicant’s representative submitted on the applicant’s behalf:

Mr Harijan confirms he has been charged with breach intervention order relating to sending sms messages amounting to harassment in breach of the interim intervention order. Refer the Information and Facts of Charge in this regard. Mr Harijan exercises his privilege against self-incrimination in relation to this matter, however does convey to the Tribunal his denial of the charge. (sic)

  1. As the charge of breaching the intervention order was before the courts at the time of the Tribunal hearing on 29 April 2021 and the applicant expressed his wish to exercise his privilege against self-incrimination, the Tribunal did not ask the applicant any questions about the circumstances that led to that charge.
  2. As noted in paragraphs 27 and 28 of these reasons, the charge of breaching the intervention order has now been withdrawn and the Tribunal attaches no probative weight to the allegations made against the applicant in support of the filing of that charge.
  3. In an undated submission received by the Tribunal on 23 April 2021 the applicant’s representative submitted on the applicant’s behalf:

Whilst the Applicant was found guilty of the offence of Aggravated Assault at the Port Adelaide Magistrates Court on 25 February 2021, he maintains his denial of the charge and is in the process of instructing his solicitors to file a Notice of Appeal against Conviction at the Supreme Court of South Australia due to a miscarriage of justice that arose in the trial process, caused by one Nepalese interpreter who appeared to struggle speaking English and who spoke too softly, making it difficult for the presiding Magistrate and Counsel to understand and hear what he was saying, a second Nepalese interpreter clearly having very little experience as an interpreter and it is questionable whether she interpreted accurately, and Mr Harijan experiencing difficulty understanding a Hindi interpreter when he was giving his evidence. It is noteworthy that the complainant speaks perfect English and did not require an interpreter whereas Mr Harijan struggles to speak English and required the assistance of an interpreter to convey his evidence and understand portions of what was said in court.

  1. The Tribunal discussed in detail with the applicant and his representative his intended appeal against his assault conviction and sentence. The applicant’s representative advised the Tribunal that the applicant had not filed a Notice of Appeal, even though the time for doing so had passed, because he cannot afford the filing fee and Legal Aid have refused to date to fund the appeal. The applicant’s representative advised she is prepared to act for the applicant in the appeal pro bono, but her firm will not fund the disbursements, including the filing fee, for the appeal.
  2. The applicant’s current Bridging E visa has a no work condition and the applicant told the Tribunal he is completely reliant on his family for financial support and is in a difficult financial position because he is not up to date with what he owes for his legal representation to date. Based on the applicant’s evidence and the submissions of his representative, it seems to the Tribunal there is considerable doubt whether the applicant’s appeal against his criminal conviction will proceed.
  3. Notwithstanding the considerable doubt about whether the applicant’s intended appeal against his assault conviction and sentence will proceed, if it does and was successful then it is likely that a re-trial would be ordered. In that event, the applicant would have a privilege against self-incrimination in relation to the assault charge. For these reasons, the Tribunal did not ask the applicant further questions about the circumstances of his conviction for assault.
  4. In an undated submission received by the Tribunal on 23 April 2021 the applicant’s representative submitted on the applicant’s behalf:

Irrespective of the issue of Mr Harijan’s guilty or innocence to the charge of aggravated assault, it is denied that he poses a risk to the complainant in any way. The interim intervention order he is alleged to have breached did not possess a non-contact condition, in accordance with the complainant’s wishes. This reflected her limited if any fear of Mr Harijan, not to mention the fact it enabled her to contact Mr Harijan freely and regularly, which she did. The sms messages that have been provided to the Tribunal, whilst no translation has been provided, at the very least demonstrate that she communicated with Mr Harijan on many occasions following the alleged offending, once again evidencing her limited if any fear of Mr Harijan and her focus on money.

The final intervention order conditions imposed by the presiding Magistrate as listed in the certificate of record, were a mandatory penalty following a conviction for aggravated assault on a domestic partner, and were not as a result of the complainant specifically requesting these conditions. Now that a more comprehensive set of conditions are in place, the argument that Mr Harijan presents a continuing risk to the complainant is far less compelling noting he can no longer make contact with her, and in fact, since she ceased communicating with him in or around June 2020, he has not made any contact with her, is not alleged to have done so and has no desire to. You will note that he is not alleged to have attended within 100 metres of her or to have breached any other conditions of the interim intervention order or final intervention order. This fact when combined with Mr Harijan’s otherwise good character and the fact the intervention order will remain in place indefinitely, supports the submission that he presents no risk whatsoever to the complainant, even if he were guilty of the offence of aggravated assault. Once again, Mr Harijan’s position is that he never presented such a risk to the complainant in the first place for he is not guilty of the aggravated assault and he did not breach the interim intervention order and will not be breaching it or offending in any manner towards the complainant or in fact any one, in the future.

As previously submitted, Mr Harijan does not have a history of being convicted of or charged with criminal offences, or accused of violent behaviour or incidents of general poor character. The appeal process is yet to begin and the outcome may well fall in his favour. (sic)

  1. The Tribunal does not attach any probative weight to the existence of the intervention orders in the applicant’s circumstances given the interim intervention order allowed some contact between the applicant and his wife and the conditions of the final intervention order were mandatorily imposed following the applicant’s conviction for assault.
  2. The Tribunal accepts the evidence of the applicant and the submissions of his representative that there is evidence of regular communication – in the form of text messages - between the applicant and his wife after the assault on 20 January 2019 up until at least mid-2019.
  3. However, the Tribunal finds the submission of the applicant’s representative that the interim intervention order not being a full non-contact order and the regular communication between the applicant and his wife after that order was issued indicate that the applicant’s wife did not and does not fear him is speculative. The Tribunal did not hear evidence from the applicant’s wife and due to the full non-contact intervention order issued on 25 February 2021 it would have been inappropriate for the Tribunal to summon her.
  4. The applicant provided the Tribunal with a copy of the interim intervention order. One of the conditions of the interim order was that the applicant must not enter or remain within 200 metres of his wife or her place of residence or her place of employment. In the Tribunal’s view, this condition is consistent with the applicant’s wife being fearful of physical harm from the applicant.
  5. The applicant provided the Tribunal with 26 pages of the brief of evidence compiled by the South Australian police to support the assault charge. That brief included a five-page affidavit from the applicant’s wife dated 12.36 AM on 20 January 2019. In that affidavit the applicant’s wife states:

2. ... We don’t have any children together and we have been living separately for a few months, but we are not separated.

3. I decided to move away to a different house because Bharat has been violent to me and I don’t want to be in a domestic violence relationship. Bharat doesn’t know where I live because I’m scared of him. I have reported some of these matters to Police. ...

5. At about 11.55pm Saturday the 19th of January 201[9] I arrived at [address deleted], which is where Bharat keeps his car parked. I brought a friend along with me, [name deleted], because I was scared Bharat would hit me.

6. Bharat lives close to [address deleted] and he wanted me to come into his house but I didn’t feel safe doing that, so I waited at [address deleted]. ...

8. Bharat opened the door to his car and told me to get inside the car, but I was worried that he would kidnap me or something so I told him that I would not get into the car. ...

  1. This is the only evidence of the state of mind of the applicant’s wife in relation to the applicant before the Tribunal. It is over two years since the applicant’s wife made that statement to the South Australian police. In these circumstances there is insufficient evidence before the Tribunal for it to make any findings in relation to whether the applicant’s wife now fears or does not fear that the applicant is or may be a risk to her health or safety, but on the evidence before it the Tribunal does not accept the submission that she does not.
  2. The applicant gave evidence that he has not wanted to and has not had anything to do with his wife since mid-June 2019. The applicant was not sure when he last spoke to his wife but told the Tribunal he has not texted his wife since he attended the police station to respond to the allegation of breaching the interim intervention order. The police summary of circumstances provided by the applicant to the Tribunal states this interview took place on 21 September 2020.
  3. The applicant also told the Tribunal he does not know where his wife is living, what she is doing, he has blocked all of their mutual friends in Australia from his social media applications to prevent him breaching the current intervention order and has also blocked his wife and the same friends from his social media applications for the same reason. The applicant said he and his wife have a mutual friend in Nepal who the applicant still talks to, but they do not discuss anything about the applicant’s wife.
  4. The applicant told the Tribunal even though he is not divorced from his wife he considers that their relationship ended in June 2019 and he is not a threat to her health or safety.
  5. The applicant provided evidence to the Tribunal that prior to the assault charge there is no record of him being charged with or convicted of any criminal offence. The Tribunal accepts this evidence and notes the Magistrates’ Court of South Australia considered the applicant to be a first-time offender.
  6. The applicant’s representative submitted that the applicant comes from a loving family and is generally of good character. In support of these submissions the applicant provided character references from a former employer the applicant worked with for two years and from a school friend who states he has known the applicant for over 15 years. Both attested to their experience of the applicant’s good character and the Tribunal accepts this reflects their honest opinions of the applicant.
  7. The applicant’s friend also indicated the applicant is a well-known author of poetry and fictional writing in Nepal and the applicant provided evidence of the books he has authored that have been published in Nepal. The Tribunal accepts this evidence.
  8. The Tribunal was not convinced by the applicant’s evidence and the submissions before it that the applicant is not a risk to the health or safety of his wife. The Tribunal accepts as sincere the applicant’s evidence that he does not want to have anything to do with his wife and does not know her present whereabouts or circumstances. However, this does not guarantee in the Tribunal’s view that the applicant will not have anything to do with his wife in future, particularly in circumstances where the applicant’s evidence is he is the victim of the events that occurred on 19 January 2019 and due to the evidence of his wife and her friend has been wrongly convicted.
  9. For the same reasons the Tribunal does not accept the submission of the applicant’s representative that the existence of a full non-contact intervention order means the applicant will not have any further contact with his wife and is therefore not a risk to her health or safety. The Tribunal accepts the applicant’s evidence that he has not had any contact with his wife for nearly two years and presently does not want to have anything to do with his wife. The intervention order adds considerable incentive for the applicant not to contact his wife and adds criminal law consequences if he does while the order remains current, but sadly it does not guarantee that state of affairs. Regrettably, it is common knowledge and widely reported that it is not uncommon that intervention orders are breached. This is not a finding by the Tribunal that the applicant will breach the current intervention order but the presence of that order, in circumstances where the applicant feels victimised by his wife and her actions in helping secure what he believes is his wrongful conviction, which may have very significant implications for the applicant’s immigration status in Australia, does not guarantee in the Tribunal’s view that the applicant will not be a risk to the health or safety of his wife.
  10. The Tribunal attaches considerable probative value to the applicant’s conviction for the assault of his wife. At the time of this decision the applicant has been convicted of that assault and has not appealed that decision, although the Tribunal accepts the applicant’s evidence that he intends to do so, if he can raise sufficient funds, which on the applicant’s evidence and the submissions of his representative appears to be far from certain.
  11. The Tribunal has delayed its decision in this matter in part to see whether the applicant was able to raise the funds to appeal against his criminal conviction. The Tribunal last heard from the applicant’s representative on 7 May 2021. This was a significant update in relation to the criminal matters alleged against the applicant, as the applicant’s representative provided documentation confirming the outstanding charge of breaching an intervention order had been withdrawn.
  12. The Tribunal has not received any further information from the applicant or his representative about his appeal against his criminal conviction. This means there is no information before the Tribunal that the applicant has actually appealed against his conviction (and sentence) at the time of this decision.
  13. The applicant’s conviction for assault means that an arbiter of fact, being a Magistrate of the Magistrates’ Court of South Australia, after hearing the evidence of the applicant, his wife and a third party witness to the events, being a friend of the applicant’s wife, found there was sufficient evidence for the Magistrate to be satisfied beyond a reasonable doubt that the applicant had assaulted his wife on the night of 19 January 2019.
  14. The Tribunal notes that the Federal Circuit Court of Australia decision in Gong[1] establishes that the possibility that something has occurred in the past is relevant to the Tribunal assessing, as it is required to do by s.116(1)(e), whether there may be a risk of certain conduct occurring in the future and this possibility of something having occurred in the past can be supported by the filing of criminal charges.
  15. Judge Smith explained the relevant law in the following terms:
    1. While some might disagree with the scope of [s.116(1)(e)], there is no challenge in these proceedings to the power of the Parliament to enact it, and I find that that is the effect of the plain and ordinary meaning of the words in their context and so is the construction required by the correct approach to the issue: Theiss v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
    2. ... The applicant contended that, if sub-s.116(1)(e) were construed so as to be engaged by the laying of charges, the common law right of the presumption of innocence would be abrogated. There was some debate about the precise scope of the common law right in question. However, I do not need to resolve that issue.
...
  1. The difficulty with the applicant’s argument is that, even on its broadest interpretation, sub-s.116(1)(e) does not impinge upon the presumption of innocence or any companion right such as the right not to be compelled to assist in the discharge of the prosecution’s onus of proof: Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20; R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8. There is no requirement in it that there be a determination, one way or another, of the guilt of a visa holder and there is no requirement that the visa holder be compelled to give any evidence.
...
  1. [It was] also argued ... that the Tribunal wrongly focussed on the past whereas the statute focusses on the future. I disagree with the submission that this reveals error. What has occurred in the past can have a logical bearing on what might happen in the future. Thus, the fact that a person has engaged in certain conduct might affect the probability that he or she will engage in that conduct again in the future. Similarly, where the statute asks whether there “may be a risk”, the possibility that something occurred in the past may have some logical bearing on the answer to that question.
  2. Judge Smith in Gong was careful to distinguish that the filing of criminal charges, while able to support a possibility that some event occurred in the past, does not justify a finding by the Tribunal that there is a reasonable basis for the charges. Given the applicant’s stated intention to appeal his conviction, the Tribunal does not make such a finding in this review.
  3. What the analysis of his honour in Gong reveals is that the concept of “risk” means the threshold for the ground in s.116(1)(e)(ii) to be enlivened is very low. For all the criticisms of this test, particularly when it is considered prior to criminal charges filed against an applicant being heard or finalised, there are sound public policy reasons for the test being based on risk. The purpose of s.116(1)(e)(ii) as the Tribunal discerns it is the perceived need to promptly protect potential victims from the behaviour of those charged with criminal offences, without waiting the often long period of time it can take for the criminal law process in relation to the alleged behaviour to have concluded. While there are obvious and inherent dangers in applying s.116(1)(e) before a criminal law process has concluded – including the possibility that some or all charges could be withdrawn or the applicant could be found not guilty, giving rise to a real question whether there was a need for protection in the first instance – the presence of s.116(1)(e) in the Act requires the Tribunal to apply the test at the time of its decision.
  4. In the present case the Tribunal adjourned the substantive hearing of the applicant’s review four times over a six-month period in anticipation of the criminal justice process coming to conclusion. Given the applicant’s intention but uncertainty over an appeal against his conviction and/or sentence, it is unknown whether the criminal justice process has concluded. In those circumstances the applicant and his representative agreed it was reasonable for the Tribunal to proceed to hear the substantive grounds of the applicant’s review.
  5. The Tribunal finds that there is a ground for cancelling the applicant’s Student visa under s.116(1)(e)(ii). The filing of a criminal charge against the applicant, and his subsequent conviction of that charge, indicates to the Tribunal that there is a possibility the applicant behaved in the past toward his wife in a manner that was a risk to her health and safety and the Tribunal remains concerned, for the reasons identified above, that the presence of the applicant in Australia is or may be a risk to the health and safety of his wife.
  6. 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 matters in the Department’s Procedural Instruction, formerly part of the Department’s Procedures Advice Manual, titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.
  2. In the Tribunal’s introduction for the hearing held on 29 April 2021, the Tribunal explained to the applicant that it is not the Tribunal’s role to punish the applicant for his criminal offending. The Tribunal noted to the applicant that he intends appealing his conviction and if he does the matter he has been convicted of remains before the courts. The Tribunal explained that even if the applicant was not appealing his conviction punishment of the applicant (by the Tribunal) is not a relevant consideration for the Tribunal in this review. The Tribunal’s role is to apply the migration law to the applicant’s circumstances, not the criminal law of South Australia.

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

  1. The applicant arrived in Australia in March 2017 as the holder of a secondary Student visa as the dependent of his wife but told the Tribunal that relationship ended in June 2019, although the applicant and his wife have not divorced yet.
  2. The applicant told the Tribunal he came to Australia to support his wife in her studies to become a nurse and then he planned to study to be able to do something big back in Nepal. The applicant told the Tribunal he has not been able to implement his vision to be financially stable, establish a family and settle down in society so his family is not affected by the discrimination the applicant says exists in Nepal.
  3. The applicant told the Tribunal his financial position is “really bad” so he would like to improve his financial situation before returning to Nepal.
  4. The Tribunal asked the applicant if he intended to resume the teaching studies he was undertaking in Nepal prior to coming to Australia. The applicant responded he is a writer, would like to send good messages to both Australian and Nepalese societies, would like to improve his English and after recovering from his depression he had received an offer to enrol in a Diploma of Business, just before his visa was cancelled. The Tribunal enquired of the applicant why he was seeking enrolment in a business course if he is a writer and what career options that study would provide for the applicant in Nepal. The applicant responded such study would mean he could do anything in the business sector in Nepal and could help him realise his dream of having his own busines in the information technology or digital economy sectors.
  5. The applicant’s representative submitted that the applicant had experienced significant upheaval and given up a lot when he first came to Australia in March 2017 but has now been here so long he has established roots in Australia and it would cause him shocking upheaval to cancel his visa and require him to return home where he would be under extreme pressure in Nepalese society due in particular to his profile as a writer there and that these circumstances amount to the applicant having a compelling reason to remain in Australia. The Tribunal does not accept these submissions.
  6. A Student visa is a temporary visa which entitles the holder to stay in Australia temporarily to study before returning to their home country. There is nothing in the applicant’s circumstances that indicates to the Tribunal that the applicant has a compelling need to remain in Australia.
  7. The Tribunal finds that this consideration weighs in support of 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 has held a secondary Student visa and two Bridging E visas, both of which were subject to conditions 8101 (no work), 8207 (no study), 8401 (report as directed), 8506 (notify change of address) and 8564 (not engage in criminal conduct).
  2. The applicant’s representative submitted in a submission dated 16 December 2019 responding to the NOICC that the applicant had been pressured by his wife through her alleged constant demands for more money from him that he work more than 40 hours per fortnight in breach of the work limitation visa attached to his Student visa.
  3. The Tribunal discussed this with the applicant who gave evidence that he did not have any proof of that but his wife did pressure him to work more so he could earn and provide her more money but that he did not do so. The Tribunal accepts that the applicant did not breach the work limitation condition of his Student visa.
  4. The applicant also gave evidence that he has and continues to comply with the conditions of his Bridging E visas. There is no information before the Tribunal to the contrary. The Tribunal accepts that the applicant has complied with the conditions attached to his Bridging E visas, including the visa he currently holds.
  5. 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 cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

  1. The applicant told the Tribunal he has already suffered considerable financial, psychological and emotional hardship following the events of 19 January 2019 and that will only get worse if the Tribunal cancels the applicant’s visa. The applicant said he has experienced depression, from which he has recovered, but if he has to return to Nepal without achieving his plan to study in Australia then that will cause him significant harm in Nepal. The applicant told the Tribunal as an established writer in Nepal the expectations of his community upon him are significant and that his community will see him, and his family, as losers if he returns to Nepal without having achieved anything from his time in Australia. The applicant’s evidence is that in such circumstances he and his family will be harassed by their treatment he expects from their community in Nepal and life will be really difficult for the applicant and his family.
  2. The applicant gave evidence his current financial circumstances are “bad” and he is in a crucial situation financially. The applicant told the Tribunal he is being financially supported in Australia by his family who operate a business in Nepal that has been significantly adversely affected by the COVID-19 global pandemic. The applicant’s evidence is that it would be a big problem financially for him and his family if he returns to Nepal without achieving his plans in Australia.
  3. The applicant told the Tribunal that the cancellation of his visa without him being able to complete any study in Australia would be emotionally “shattering” for his parents and this is of great concern to the applicant.
  4. The applicant has an elder sister in Nepal who is married with two children. The applicant initially indicated he did not think she would be affected by the cancellation of his visa but subsequently clarified his evidence that she will be subject to pressure from their community because of the applicant’s circumstances.
  5. The Tribunal notes from submissions received that the applicant came to Australia to support his wife in her studies to become a nurse and gave up his own studies in Nepal as a teacher to do so.
  6. The applicant told the Tribunal that his parents are very worried about him and have also experienced depression as a result of his circumstances, including being prescribed and taking medication.
  7. The applicant did not provide any medical or financial information to the Tribunal to support his evidence above, including to support his evidence of experiencing depression and his parents receiving ongoing treatment for depression.
  8. The Tribunal accepts the applicant’s evidence that he and his family in Nepal, particularly his parents, will experience significant emotional, psychological, social and financial hardship if the applicant’s visa is cancelled. This hardship would normally be ameliorated to a significant degree by the fact the applicant holds only a secondary Student visa and came to Australia for the primary purpose of supporting his wife in her studies, a relationship and purpose which has subsequently finished. However, the Tribunal accepts the applicant’s evidence that he had a dual purpose in coming to Australia being to initially support his wife and to then resume his own studies.
  9. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.

The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

  1. The circumstances in which the ground for cancellation of the applicant’s visa arose are set out in paragraph’s 35 to 66 of these reasons.
  2. The applicant claims there are extenuating circumstance beyond his control that led to the ground for cancellation existing. The applicant maintains that he is the victim of unreasonable financial demands and threats of divorce and reporting that could have led to his deportation from his wife which eventually culminated in the applicant being set-up and assaulted by his wife and her friend. The applicant told the Tribunal that he intends to appeal against his conviction and sentence for assaulting his wife.
  3. There is no information before the Tribunal at the date of this decision, which is being made more than three weeks after the Tribunal’s substantive hearing of the applicant’s review, that the applicant has filed a Notice of Appeal against his conviction. The Tribunal notes the applicant’s representative provided updated information promptly about the withdrawal of the charge filed against the applicant of breaching the interim intervention order. The Tribunal expects that if the applicant had filed a Notice of Appeal against his conviction and sentence for assaulting his wife that his representative would also have promptly advised the Tribunal of that filing.
  4. At the time of the Tribunal’s decision the applicant stands convicted of the aggravated assault of his wife on 19 January 2019 for which he received a term of imprisonment, wholly suspended.
  5. Relying on the verdict and sentencing remarks of his Honour, SM Foley of the Magistrates’ Court of South Australia, there is nothing in the findings of his Honour or his sentencing remarks that indicate the circumstances that led to the ground arising for the cancellation of the applicant’s visa arose from any extenuating circumstances that were beyond the applicant’s control.
  6. The Tribunal finds that this consideration weighs in support of 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 (including whether they have been truthful and cooperative)

  1. The delegate’s decision cancelling the applicant’s visa records that the applicant did not respond to the NOICC, which can indicate a refusal or failure on the applicant’s part to co-operate with the Department.
  2. The applicant’s representative provided evidence, which the Tribunal accepts, that she prepared a response to the NOICC in a timely manner, but then made a mistake in the Department’s email address she emailed the response to, with the result that the Department did not receive or consider the response when the delegate cancelled the applicant’s visa.
  3. There is no other information before the Tribunal to indicate that the applicant has not been truthful or co-operative with the Department.
  4. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

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

  1. The evidence before the Tribunal is that there is no-one who is dependent upon the applicant’s visa.
  2. 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 becoming an unlawful non-citizen and liable to detention and removal 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 read the following extract from the primary decision of the delegate to the applicant and his representative during the Tribunal hearing on 29 April 2021:

Mr Harijan will no longer have a visa status to allow him to remain in Australia. He will become an unlawful non-citizen.

As an unlawful non-citizen he may be liable for detention under s189 and removal from Australia under s198 of the Act. As a citizen of Nepal it would be open to him to return to that country, to mitigate the possibility of being placed in immigration detention. I do not consider there is potential for Mr Harijan to be detained indefinitely.

While failure to regularise his unlawful status and/or cooperate to return to his home country may ultimately result in detention or removal action, it is not necessarily a consequence of the cancellation decision.

Mr Harijan may be subject to Public Interest Criteria 4013 which may result in a three year exclusion from having any new application for most temporary visas approved. He would also be subject to a section 48 bar on applying for certain visas onshore. (sic)

  1. The Tribunal asked the applicant if his visa was cancelled whether he was concerned he could be indefinitely detained to which the applicant responded that he did not know about such matters in any detail. The Tribunal asked the applicant’s representative whether she wished to make any submissions about this consideration on the applicant’s behalf. The applicant’s representative said she did not.
  2. The Tribunal finds that if the applicant’s visa is cancelled there will be the mandatory legal consequences identified by the delegate in the primary decision for the applicant.
  3. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

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’s evidence is he does not have any children and does not claim that Australia owes him any obligation of protection or other obligation under any international agreement that could be breached by the cancellation of his visa.
  2. This consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

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

  1. The applicant’s Student visa is a temporary visa.
  2. 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 extensive oral submissions toward the end of the Tribunal hearing on 29 April 2021. Those submissions were of assistance to the Tribunal in the conduct of this review and the Tribunal has considered those submissions in these reasons for decision.
  2. The applicant also made some closing remarks toward the end of the Tribunal hearing on 29 April 2021. The applicant told the Tribunal he was involved in a bad situation, but he wants to do something good for both Australia and Nepal before he returns to Nepal. The Tribunal has considered the applicant’s closing remarks in these reasons for decision

Conclusion

  1. The Tribunal finds that those considerations that weigh in support of the cancellation of the applicant’s visa, namely the applicant’s lack of compelling reason to stay in Australia and the circumstances in which the ground for cancellation arose, outweigh the considerations which weigh against the cancellation of the applicant’s visa.
  2. For those reasons, considering the applicant’s 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] Gong v Minister for Immigration & Anor [2016] FCCA 561

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