1902129 (Migration)

[2021] AATA 1232

1902129 (Migration) [2021] AATA 1232 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902129

MEMBER:Rachel Westaway

DATE:2 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2021 at 3:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – common assault – injury of property – breaching a family violence order – consideration of discretion – seriousness of convictions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), 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 24 January 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling the visa applied to the holder. 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 visa video link on 14 May 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

7. The Tribunal discussed the offences and convictions outlined in the delegates decision and the applicant confirmed that they were correct. He explained that they related to his former girlfriend.

8. The applicant confirmed he was convicted and pleaded guilty.

9. The following convictions were dated [in] August 2018. The applicant pleaded guilty to all four.

   ·     A conviction for common assault whereby the applicant deliberately drove his vehicle causing it to collide on two occasions.

   ·     A conviction for injury of property whereby the applicant pleaded guilty of damaging another person’s car.

   ·     A conviction of breaching a family violence order and a conviction of breaching bail conditions.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

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

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. [The applicant] stated he came to Australia in mid-March 2016 from China. He came to study a bachelor’s degree at [University 1]. His highest level of education prior to this was completion of high school. He came by himself to Australia and he had not travelled overseas before.

13. He has two siblings a sister and brother. They have not studied overseas. His parents own a [business] specialising in [work type] in [City 1].

14. The Tribunal has noted that the applicant has supplied references and documentary evidence supporting his studies and his commitment to these.

15. The following supporting documentation was supplied:

    ·     A submission by [the applicant]’s migration agent

    ·     A letter from [Mr A] his former lawyer outlining the offences and the impact a visa cancellation would have on the applicant

    ·     A letter from the Department of Justice and Community Corrections outlining the applicant had completed his corrections order in a timely manner with excellent attendance and performance

    ·     `references from [Mr B] and [Mr C] from the applicant’s education provider who attest to his friendly disposition and work ethic.

    ·     A work reference from [Employer 1] outlining [the applicant] was a reliable and responsible person.

16. He stated he has never had a charge or conviction before. He stated that the circumstances were unusual. He thought it was a minor offence and not reordered and he realised it was not the case and his lawyer in Tasmania explained to him it was serious.

17. [The applicant] came to Australia with the intention of studying. His references and oral evidence support this. The Tribunal gives some weight to these factors in favour of the applicant and not cancelling the visa. Whilst his submissions outline he believes he has a compelling need to remain in Australia and complete his studies due to the amount of money spent, his inability to obtain sufficient credits for his completed studies and his future career aspirations, the Tribunal does not accept that the applicant would be unable to compete his studies in his own country and as such gives this consideration minimal weight.

    circumstances in which ground of cancellation arose.

18. The applicant provided a submission from his migration agent and a summary of the legal issues from his lawyer. The complainant was the applicant’s former girlfriend. The relation was outlined as being tumultuous and the applicant was charged and then convicted because he drove his car at her car. There was a family violence order issued against the applicant and he breached this order by messaging her. The applicant’s lawyer stated that the contact was via instant messaging and not in person. It was submitted to the court that a sentence of imprisonment would be detrimental to the applicant’s visa. The legal summary stated that it is for this reason a sentence of community service and no imprisonment was imposed.  He explained that the situation had impacted on his studies and he hoped that the matter could be finalised quickly.

19. The applicant explained that the relationship was a tumultuous one and the applicant’s former girlfriend would argue that he owned her money.

20. The applicant’s lawyer outlined that the complainant would slap the applicant and threaten him and his family in China. The applicant’s lawyer outlined that his was not disputed. Not with standing this, the applicant’s visa was cancelled on the basis that he breached a family violence order and was convicted of common assault and damaging her car.

21. He stated that he pleaded guilty and has not appealed the decision. He explained that he asked his lawyer if he should appeal and was told he was unlikely to be successful.

22. He also stated that he had limited money available for legal costs and his tuition and living fees are funded by his parents and he has a part time job. He explained that he was supported by legal aid and he pleaded guilty to save money. The Tribunal queried the applicant stating that he would not incur legal fees if he was supported by legal aid.

23. The applicant told the Tribunal he originally had 6-7 charges and his lawyer negotiated it down to 4 charges. He explained that the legal process was confusing. He was unaware of the impact this would have on him and when he went to discuss this with another lawyer, he was quoted around $330 per hour. He said he could not hire a lawyer for a whole case. He agreed and said that the lawyer who helped him was legal aid and he didn’t pay.

24. The Tribunal asked the applicant if there were any reasons, he either pleaded guilty or reasons why he committed the offences which were outside of his control which he would like to discuss. He stated that he is currently focused on the civil matter regarding hitting another car. He owes the other party $10,000 and pays $100 per week.

25. The Tribunal asked the applicant about the circumstances of the family violence order and he said the order was taken out to protect his girlfriend and he has a reference letter from her. He provided a reference letter allegedly from his former girlfriend [Ms D].  However, he stated his lawyers arranged it as he has an intervention order and cannot contact her.

26. In March his student visa was cancelled, and he was holding a Bridging visa E and he asked the lawyer if his ex-girlfriend might assist his visa hearing. He said that the reference by his lawyer contained an error with dates and it listed it as 2017 and not 2018.

27. The Tribunal has considered the circumstances in which the convictions occurred leading to the breach. There was a family violence order in place which clearly outlined that the applicant was not to contact or approach the complainant. The applicant did and this breached the family violence order. Whilst the applicant stated that his former girlfriend provoked the situation, the applicant has clear requirements pertaining to the order which he breached. This was not beyond his control.

28. The Tribunal has considered the information before it regarding the circumstances in which the cancellation occurred and give this minimal weight in favour of the applicant and not cancelling the visa.

    the extent of compliance with visa conditions

29. The applicant confirmed that he commenced his studies and he did not complete the subjects in his first semester. The Tribunal noted that the applicant arrived in March 2016 and has not completed one semester of studies. He explained when he first arrived, he had four levels of language courses to complete. However, he missed the first enrolment and he enrolled in May and commenced the language course. By the end of 2016 he returned to China for a few weeks and commenced the language course until June 2017. Then he had his enrolment at university. He failed a few times and he had to repeat.

30. The Tribunal notes that there have been references from his course provider which describe the applicant as friendly and with aptitude. The applicant stated that he has never been in trouble with the law before and has had no previous convictions.

31. The Tribunal expects that all visa holders comply with conditions on their visa. The applicant has appeared to comply although his progress and lack of competition is of a concern to the Tribunal. There is nothing before the Tribunal to indicate that the applicant has breach visa conditions and as such the Tribunal gives this factor no weight in its deliberations.

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

32. If the visa is cancelled the applicant stated that he has a chance to appeal to the federal court, but he stated that he might go back to China.

33. He said he could not study in China as after eighteen he cannot go back to university unless it is adult education. He said that no employees would employ someone without a bachelor’s degree. The Tribunal stated it did not accept that the applicant could not obtain a job without a degree in China. He stated that the circumstances – a proper job and legally paid you need a bachelor’s degree otherwise he will receive low pay.

34. He explained he was enrolled in the army for two years prior to coming to Australia and selected Australia because of its reputation. He was asked if he could work for his parents. He stated it would be impossible and all expenses are from family saving and his father does not have enough money. For the last two years the law has changed in China and he said that obtaining permission to [undertake specified work type] is hard. He explained that it is not a direct reason he cannot go back. He said if he went back his parents have no work and he can’t find a proper job and it will impact on his future and if he can finish his degree it would be better. He said that Australia’s education is internationally renowned. He was asked what industry he would like to work in, and he stated in hospitality.

35. The Tribunal accepts that the applicant and his family would be very disappointed if the applicant returned without Australian qualifications given the expense and the period he has been in Australia. However, if the visa is cancelled and the applicant was to return to China, the Tribunal does not accept that the applicant would be unable to obtain work in hospitality or continue his studies. The applicant has work experience as a tour guide and good references. He has studied in Australia and would have improved his language skills. Hospitality is not an industry where it is necessary to hold a formal qualification.

36. The Tribunal acknowledges that a cancellation would bring some hardship to the applicant and his family both emotionally and financially. However, this is the unfortunate consequence of a visa cancellation. The tribunal gives this factor some weight in favour of the applicant and not cancelling the visa.

    past and present behaviour of the visa holder towards the Department

37. The applicant has responded to all requests for information and has acted with courtesy in his dealings with the tribunal. The Tribunal gives this factor some weight in favour of the applicant and not cancelling the visa.

    whether there would be consequential cancellations under s.140

38. There is no one else connected to the applicant’s visa. As such, the Tribunal affords no weight to this factor.

39. whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder 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 person from making a valid visa application without the Minister’s intervention

40. The applicant would become an unlawful citizen and would need to rectify his immigration status in order to avoid detention or being removed from Australia involuntarily.

41. He would also be subject to section 48 which would prevent him from making a further visa application for many visas and he may not be able to meet public interest criteria 4013 which would place a 3 year bar on him from applying for another visa from the date of the cancellation.

42. He stated he thinks he will most likely be refused if he applied again and because he is [age] years of age, he cannot continue to rely on his parents to feed and support him. He explained he will not be able to work legally with only a diploma. The Tribunal asked the applicant if he would be able to consider studying online and he said that in China people do not accept distance study or adult education. They only accept degrees from the main institutions.

43. I have considered these concerns and do not accept that the applicant would not be able to study in China or that he would not be able to find employment. I accept that there are legal consequences of the cancellation however these are the intention of a cancellation and I gives these factors no weight bin favour of the applicant and not cancelling the visa.

44. whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

45. the applicant is from China and he has provided no reasons why he would not be able to return to China. I give this actor no weight in the visa holder’s favour.

    any other relevant matters

46. If his student visa is cancelled, he stated he will need to work, and it will severely impact his family because his family is supporting him in Australia. The Tribunal stated that it would be cheaper for the applicant to live in China than have his family support him in Australia and he said this is a longer-term view.

47. When asked if there was anything else. He understands he has been convicted of a criminal act. He breached student visa requirements. He hopes that he has special circumstances and he has one year to finish the Diploma. He needs to pay his ex-girlfriend $100. He said that he can do this from China, but he believes it is better to do this here.

48. If he went back without a qualification, he would not be able to find a similar type of job as to what his peers have. The applicant supplied a copy of a Certificate of Enrolment for Certificate III in [subject matter] and a reference letter from his girlfriend.

49. The Tribunal acknowledges that if the visa is cancelled the applicant will not be able to continue to work part time. It acknowledges that he has a reference from his former girlfriend, and he would prefer to finish his studies in Australia and pay his girlfriend the outstanding money and seek employment in China of a level which is equivalent to his friends.

50. Whilst the Tribunal notes these issues, it does not accept that the applicant can not repay his former girlfriend from China. It does not accept he can not complete his studies in China or via distance learning.

51. Whilst the Tribunal also notes that the applicant has references which are positive, his convictions are serious.

52. The Tribunal gives these factors only limited weight in favour of the applicant and not cancelling the visa. 

53. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

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

    Rachel Westaway
    Senior Member