1834399 (Migration)

[2019] AATA 4649

1834399 (Migration) [2019] AATA 4649 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834399

MEMBER:Bridget Cullen

DATE:17 June 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa.

Statement made on 17 June 2019 at 2:47pm

CATCHWORDS
MIGRATION – cancellation – Business Skills (Provisional) visa – Subclass 188 – criminal charge – family violence – risk to health, safety or good order of Australian community – conviction not recorded – wife sold business – no need to remain in Australia – decision under review affirmed

LEGISLATION
Criminal Code 1899 (Qld), ss 47, 335, 339(1)
Migration Act 1958 (Cth), ss 116, 134
Migration Regulations 1994 (Cth), Public Interest Criterion 4013

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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 21 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that the Applicant had been charged with an offence under the Criminal Code 1899 (Qld) and the delegate formed the view that the Applicant’s presence in Australia may be a risk to the safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 13 June 2019, via telephone from China, to give evidence and present arguments. The Tribunal also received oral evidence via telephone from the Applicant’s wife, Ms [A], who was identified to the Tribunal as Mrs [B] throughout the hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e)(ii). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. 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].

8. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

9. The Applicant arrived in Australia [in] February 2018, on a Subclass 188 – Business Innovation and Investment (Provisional) visa, as a dependent of his wife. The Applicant and his wife both gave evidence that the transition to Australian life was stressful for them. [In] August 2018, the Applicant was arrested and charged with an alleged offence of Assault Occasioning Bodily Harm, in contravention of s.339(1) of the Criminal Code 1899 (Qld). The Applicant’s wife was the victim of the alleged offence.

10. The Applicant has provided the Tribunal with a copy of the delegate’s decision record, which sets out the circumstances surrounding the charge.  The decision record reflects that the charges arose following a heated domestic discussion:

    “In relation to the incident, that the visa holder “was discussing with his wife in regard to the business choices. Due to the stress from moving to a new environment and huge decision to make, the heated discussion was triggered by his wife saying “I would no longer live with you. It is almost impossible to make a living”.” And that “owing to her aggressive language and the respondent was under minor alcohol influence, the visa holder set him off and broke a glass cup, the broken pieces of the glass cut his wife and caused the bleeding.” Further, that “later the paramedics arrived at the scene and checked her wounds, it was very minor and did not even require any dressing.”

11. [In] December 2018, the Applicant pleaded guilty to a lesser charge of Common Assault – Domestic Violence Offence, in contravention of s.335 and s.47(9) of the Criminal Code 1899 (Qld). The Magistrate issued a Protection Order in the following terms:

    It is ordered by consent without admissions that:

    (1)  That the respondent be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.

    (2)  That the respondent be of good behaviour towards the named person and not commit associated domestic violence against the person and not expose any named child to domestic violence.

12. The Protection Order did not prevent the Applicant from having contact with his wife or family. The Verdict and Judgment Record dated [December] 2018 reflects “Convicted – not punished – Conviction not recorded”. 

13. The threshold in s116(1)(e)(ii) is a low bar. It requires the Tribunal to determine that the presence of the Applicant in Australia is or 'may' be a 'risk', or would or 'might be', a 'risk' to the health or safety of an individual or individuals. If this test is met, the cancellation power is enlivened. The Applicant concedes, through his representative, that the ground for cancellation in s.116(2)(e)(ii) exists. The Tribunal finds that the presence of the Applicant in Australia is or 'may' be a 'risk', or would or 'might be', a 'risk' to the health or safety of an individual or individuals.

14. 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

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the applicant's travel to and stay in Australia

16. The applicant entered Australia as a dependent family member, on a Subclass 188 -  Business Innovation and Investment (Provisional) visa. The Tribunal considers that the purpose of the Applicant's travel to and stay in Australia was to accompany his wife, and their collective children, to live in Australia.  The Applicant was removed from Australia, to return to China, [in] January 2019.  The Tribunal understands that this process would have been emotionally draining for the Applicant, and his wife and children. Although the Tribunal finds that the Applicant has fulfilled this purpose, in the circumstances, the Tribunal does not consider that the Applicant’s being a member of his wife’s family is a factor that weighs for, or against, cancellation.

17. The Applicant’s wife was under significant stress following the Applicant’s removal.  She remained in Australia until April of 2019, and then returned to China to live with the Applicant, and their [Child 1].  The Applicant’s wife is required, as the holder of a Subclass 188 visa, to run a business in [Australia] on a day-to-day basis at a senior level as part of her obligations under [State] Sponsorship for the visa.  The Applicant’s wife was the operator of a business, [Business 1], located in [City 1], [Australia].  She explains that she has been unable to continue to run the business without the Applicant’s assistance. As a consequence, [in] January 2019, she sold her business through disposal of her shares to the new purchaser, [Named Company].  The Applicant has provided the Tribunal with a copy of the Share Sale Agreement and ASIC Historical search of [Named Company], confirming the sale.

18. The Tribunal invited the Applicant, his wife, and the representative, to comment on the way in which the sale of the business related to the Tribunal’s discretion.  The Tribunal explained that the Tribunal was not reviewing the Applicant’s wife’s visa, but that it could take the view that, now that the business had sold, this was a factor that weighted in favour of cancellation.

19. The Applicant explained that, ultimately, the Applicant’s goal was to obtain a Business Skills (Permanent)(Subclass 888) visa.  The Applicant’s wife would like to return to Australia, and buy another business, but with the Applicant’s support and assistance.  The Applicant’s representative asked the Tribunal to provide an opportunity for post-hearing submissions about the loss of opportunity to pursue the permanent subclass 888 visa, and the impact of that on cancellation.

20. The Applicant’s representative filed submissions in the Tribunal on 15 June 2019.  The representative acknowledges that it is possible that the Applicant’s wife and children’s Subclass 188 visas may be cancelled under s.134 of the Act, given that “she is not currently utilising her skills in actively participating at a senior level in the day-to-day management of a business”. The Tribunal places no weight on this possibility, given that this review is only in relation to the cancellation of the Applicant’s visa.

21. The Representative submits the following, on the Applicant’s behalf

    Ineligibility to apply for a SC888 visa in future

    Even if the SC188A visa of Ms [A] is not cancelled, we submit that the cancellation of the Review Applicant’s visa will lead to hardship to Ms [A].

    The Review Applicant and his spouse gave oral evidence on 13th June 2019 that they intend to return to Australia for Ms [A] to acquire another business to continue to meet the SC888 visa criteria.  If the cancellation of Mr [B]’s secondary SC188 visa is not set aside, he will be unable to accompany his wife to return to Australia.  As Ms [A] had explained in her oral evidence, she will then be unable to look after her family and run a business in Australia.  Consequently, she will lose the chance to apply for a SC888A permanent visa for not meeting the criterion of running an Australian business.  We submit that Ms [A] as a holder of a SC188A visa has a reasonable expectation for the grant of SC888A visas is she meets all the visa criteria for the SC888 visa.  Such expectation can be implied from the Migration Regulation.  For example, the definition of “member of the family unit” in Migration Regulation 1.12(5) extends to a person who is holding a SC188 visa (Class EB visa) as a member of the family unit of the primary applicant and is applying for a SC888 (Class EC visa) as a dependant despite that he is otherwise no longer a member of the family unit of the primary applicant.   The legislative intent that a SC188 visa is an intended pathway to a SC888 visa is abundantly clear.  Therefore, we submit that the inability of Ms [A] to apply for a SC888 visa does amount to hardship to her and her family.

22. The Tribunal considers that, while a valid migration pathway may exist for holders of Subclass 188 visas that wish to obtain a Subclass 888 visa entitling them to permanent residency, that the Applicant could have no expectation that this would happen.  The Applicant was the holder of a visa that, were it not for cancellation, would have entitled him to reside in Australia until 12 April 2022.  The Tribunal considers that while the Applicant is entitled to hope that he will be able to obtain permanent residency, there cannot be any reasonably held expectation of same. 

23. Further, the Tribunal accepts that, if the Applicant’s visa remains cancelled, that the Applicant, his wife and children will suffer a degree of hardship, but notes that they are not permanent residents who have a right to reside in Australia indefinitely.  Any stay beyond 12 April 2022 is entirely dependent upon their meeting the relevant criteria for whatever visa, including the Subclass 888 visa, that they may apply for.

24. On balance, the Tribunal considers that the sale of the business is a factor that weighs in favour of cancellation, in that there is no need for him to return to Australia to assist his wife, as part of her family, with operation of the business.  There is also no need for the Applicant’s wife to remain in Australia for work, and therefore, she is able to join (and has joined) the Applicant in China.

    The extent of compliance with visa conditions and past and present conduct of the visa holder towards the department

25. There is no information before the Tribunal indicating that the Applicant has breached any conditions attached to his visa, or that he has been uncooperative in his dealings with the department. The Tribunal places some weight on these matters as factors in the Applicant's favour.

    Circumstances in which the ground for cancellation arose

26. The cancellation power under s.116(1)(e)(ii) was enlivened when the [Police] Service charged the Applicant with an alleged offence of Assault Occasioning Bodily Harm.

27. The Applicant pleaded guilty to a lesser charge of Common Assault – Domestic Violence Offence. The Tribunal notes that the despite having been the victim of the offence, that the Applicant’s wife has given evidence that she supports the Applicant, and that they have a harmonious family life. The Tribunal considers that Applicant’s conduct to have been entirely unacceptable, but on the lesser end of the domestic violence spectrum.  This is reflected in the terms of the Protection Order and the Magistrate deciding not to record a conviction.

28. Whilst the Tribunal understands that the circumstances of the Applicant and his family on arrival to Australia may have been stressful, the Tribunal considers that the circumstances in which the offence transpired are a factor that weighs in favour of cancellation, albeit marginally in light of what is reflected in the Verdict and Judgment Record.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

29. The Applicant has a [Child 2], who remains in Australia [in] school in [City 1].  This child resides with the Applicant’s wife’s “cousins” from her hometown in China, who are permanent residents.  The Applicant’s wife says that this child can continue to reside with her “cousins” until graduation. The Applicant’s wife acknowledges that she is freely able to travel between China and Australia to look after this child.  The Tribunal considers that this is factor that weighs slightly against cancellation. 

30. It is not uncommon for children to attend boarding school in high school, this child is living with “cousins”, and the Applicant’s wife could, if she wished, return to Australia at any time to care for this child herself.  The Applicant explains that “family is everything” and he does not wish to live apart from this child.  The Applicant and his wife say that this child does speak Mandarin.  There is nothing to prevent this child from completing school in Australia with the current arrangements that are in place, and then returning to China.

31. There is another child [who] is independent, and attending University in [Australia]. The Tribunal considers that the [child’s] presence in Australia does not impact for, or against, cancellation.

32. The Applicant’s youngest child, has returned to China, to live with the Applicant and his wife.  This child is enrolled in school in China, but is having some difficulty with Mandarin in an educational context.  The Tribunal considers that, although there will be some stress and adjustment for this child, that given his young age, and immersion in the Chinese culture, that he is likely to adjust to a new language over time. The Tribunal considers that this is factor that weighs slightly against cancellation.

33. The Tribunal accepts that the Applicant being separated from his wife and children would cause him relevant hardship. However, the Applicant is not, at the time of the Tribunal’s consideration, actually separated from his wife and youngest child. There is nothing to prevent the Applicant’s [Child 2] from returning to China, either now or when finished with Grade [12]. The hardship must be seen in the context of the Applicant’s current circumstances.

34. The Applicant’s wife explains that, in selling the shares in [Business 1], she sold for only about half the value, given the need to sell quickly.  While this would have caused her come distress, that loss has now crystallised, regardless of whether the Applicant’s visa is cancelled.  The Tribunal weighs hardship in the applicant's favour, however reduces the weight for the reasons explained above.

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

35. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s.116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas for which the applicant may apply. They are not subject to the s.48 restriction.

36. Consequently, s.48 limits what visa applications can be made by the Applicant whilst onshore. The Tribunal has taken that potential limitation on the applicant's future application actions into account.

37. Public Interest Criterion (PIC) 4013(3) in the Regulations provides that a person is affected by a risk factor if a visa previously held by the person is cancelled because the Minister was satisfied that a ground mentioned in s.116(1)(e) applied to the person. In that event, PIC 4013 operates by mandating that a visa application made within three years of that person's visa being cancelled under s.116(1)(e) will be refused unless one of the stated exceptions apply.

38. The Tribunal has taken into account that potential restriction on the Applicant's future Australian visa applications and weighed the issue in his favour. The Tribunal does not have sufficient evidence before it to assess whether the applicant is likely to avail himself of an exception to the PIC's operation such as compelling or compassionate circumstances justifying a further visa grant. The Applicant may well be able to avail himself of that exception, either to see his [Child 2], or if his wife and children relocated to Australia. Conversely, the Tribunal has taken into account the possibility that the Applicant will not be able to make out an exception to the PIC and also weighed that in his favour.

1. However, to be balanced against that is the plain intent of PIC 4013 to restrict future entry into Australia by people affected with the stated risk factors. That must also be considered in this review.

   Whether there would be consequential cancellations under s.140

2. The information before the Tribunal indicates that the Applicant is a dependent family member on his wife’s visa.  Therefore, cancellation of his visa will not result in any consequential cancellations.

   Whether any international obligations would be breached as a result of the cancellation

3. In considering whether to exercise its discretion to cancel the Applicant's visa, the PAM3 policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations, and to take Australia's international obligations into account. These include Australia's responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC). At common law, the best interests of the Australian children are also a relevant consideration in a review such as this one.

4. Article 3(1) of the CRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, or administrative and legislative bodies, the best interests of the child shall be the primary consideration. Article 5 requires state parties to respect the responsibilities, rights, and duties of the extended family in a manner consistent with the evolving capacities of a child. Article 9 provides that children shall not be separated from their parents against their will. Article 24 concerns the right of a child to enjoy the highest attainable standard of health.

5. In effect, those articles of the CRC provide that the Department (and the Tribunal) should consider the interests of children affected by their decisions.

6. The Applicant has two children to whom the CRC principles are applicable.  However, as the Applicant’s wife and children continue to hold visas, where they live is a matter entirely within their discretion.   The children are not placed at risk as a consequence of cancellation.  The Tribunal gives some weight to CRC factors in the Applicant’s favour.

   Conclusion on discretion

7. The Tribunal has considered the appropriate exercise of its discretion carefully. The Applicant’s wife has already sold her business, and returned to live with the Applicant and their [Child 1] in China. Given these factors, the Applicant overall has a weak case in relation to the discretionary factors.  Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

8. The Tribunal affirms the decision to cancel the applicant’s Subclass 188 - Business Innovation and Investment (Provisional) visa.

   Bridget Cullen
   Member