1912512 (Migration)

[2019] AATA 4960

1912512 (Migration) [2019] AATA 4960 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1912512

MEMBER:P. Wood

DATE:25 July 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 25 July 2019 at 6:04pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – risk to the health or safety of an individual – criminal charges against the applicant – family violence – enrolment cancelled while in custody – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8 Condition 8202; r 2.12

CASES

Gong v Minister for Immigration & Anor (2016) 309 FLR 151
MZAJA v Minister for Immigration & Anor [2017] FCCA 448            

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 16 May 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)(e)(ii) of the Act on the basis that the presence of the visa holder is or may be, or would or might be, a risk to the health or 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. By way of background, the applicant is presently in criminal custody as a result of charges against him and involving his wife and former partner, [Ms A].

4. On 10 July 2019 the Tribunal wrote to the applicant inviting him to participate in a hearing on 22 July 2019 at 3.00pm. On 11 July 2019 the applicant provided a written response to the Tribunal’s invitation to participate in a hearing on 22 July 2019 at 3.00pm. In that written response, the applicant advised that he and his new partner, [Ms B], would participate and provide evidence.

5. On 18 July 2019 the applicant applied for an adjournment of the hearing scheduled for 22 July 2019 at 3.00pm. The applicant informed the Tribunal that he wished to apply for bail at some point in the future and that he had instructed an experienced solicitor to prepare that application. The applicant asserted that he would be best prepared to participate in the Tribunal hearing if he were on bail.

6. At that time, it was unclear as to when he would be applying for bail, and the Tribunal was not in a position to determine the likelihood of the bail application being granted. The Tribunal considered that the applicant had also, by his own admission, demonstrated that he was able to instruct legal representatives, if and when he considered necessary, from custody. Further, the applicant’s written request for an adjournment of the hearing, received by the Tribunal by facsimile, confirmed that he had access to ordinary means of communication.

7. The Tribunal frequently conducts hearings with applicants in both immigration detention and criminal custody by video-link and, in all the circumstances, the Tribunal considered that the applicant would be able to fully participate in a hearing by video-link. With the Tribunal’s statutory objective of providing a mechanism of review that is fair, just, economical and quick in mind, the Tribunal refused the applicant’s adjournment request.[1]

   [1] Section 2A of the Administrative Appeals Tribunal Act 1975

8. The applicant appeared before the Tribunal on 22 July 2019 by video-link to give evidence and present arguments. The Tribunal also received brief oral evidence by telephone from [Ms B].[2]

   [2] The Tribunal has also read and had regard to an email concerning the relationship from [Ms B] dated 25 July 2019.

9. The Tribunal hearing was conducted with the assistance of a nationally accredited interpreter in the Mandarin and English languages.

10. 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

11. Under s.116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, those 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 proper exercise of the discretion requires the visa to be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

12. Section 116(1)(e)(ii) of the Act provides that, subject to subsections (2) and (3) (which for present purposes are not relevant), the Minister may cancel a visa if satisfied that the presence of the holder in Australia is or may be, or would or might be, a risk to the health and safety of an individual or individuals.

13. Whether a person ‘may’ or ‘might’ be a risk within the meaning of those terms in s.116(1)(e)(ii) does not require any direct, solid, or certain foundation before the cancellation power can arise. It can arise on the possibility that some event occurred in the past.[3] Where s.116(1)(e)(ii) asks whether there ‘may be a risk’, the possibility that the relevant event occurred in the past may have some logical bearing on whether it might happen in the future, and whether the person may be a risk.[4] It is open to the Tribunal to infer that in laying charges, the police considered there to be a case for the accused to answer. Such an inference informs whether the events alleged to constitute the risk may have occurred, and whether the applicant may now be a risk within the meaning of s.116(1)(e)(ii).[5]

    [3] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [41] per Judge Smith.

    [4] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [54] per Judge Smith.

    [5] Gong v Minister for Immigration & Anor (2016) 309 FLR 151 at [44] per Judge Smith.

14. Where an applicant’s visa is cancelled on criminal charges that are yet to be determined, as in this case, the risk to the relevant people within the meaning in s.116(1)(e)(ii) should not be confused with guilt or innocence. The Tribunal’s task is not to determine guilt or innocence but to assess the risk the applicant presents based on the evidence before it.[6]

    [6] MZAJA v Minister for Immigration & Anor [2017] FCCA 448 at 15 per Judge Riethmuller.

    Does the ground for cancellation exist?

15. 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, or would or might be, a risk to health or safety of an individual or individuals.

16. The analysis commences with the original charges against the applicant.[7] By letter dated 25 July 2019, the applicant’s solicitors in his criminal matters advised that the prosecution will only be proceeding with the following charges:

    ·intentionally cause injury

    ·false imprisonment

    ·recklessly cause injury

    ·stalking

    ·persistent breach of intervention order

    [7] Unlawful assault (3 counts), sexual assault, intentionally cause injury (2 counts), recklessly cause injury (2 counts), assault with instrument, false imprisonment, assault with weapon, stalk another person, use a carriage service to harass, persist in contravention of family violence notice or order, contravene family violence safety notice (5 counts), breach conduct condition of bail.

17. The Tribunal infers from the charges that the prosecution are proceeding with that Victoria Police has considered the evidence against him to be sufficiently probative to justify continuing with the offences as alleged, and that he has a case to answer on these charges.

18. That an independent and authoritative body such as Victoria Police decided to charge the applicant carries substantial weight with the Tribunal. On those grounds, the Tribunal finds that the applicant may or might have acted against [Ms A] as alleged.

19. By letter dated 25 July 2019, the applicant’s solicitors in his criminal matters provided a report dated 19 March 2019 from [Psychologist A], forensic psychologist. In her report, [Psychologist A] opines that the applicant is a “high risk of general relationship family violence, should he form a new relationship. Matters which require addressing through treatment are his current mood state and his attitudes towards intimate partners.” The Tribunal has already observed that the applicant has formed a new relationship with [Ms B].

20. According to [Psychologist A]’ report, the applicant’s behaviours towards [Ms A] “indicate underlying attitudes towards women/intimate partners which are entitled, demeaning, controlling and violent”.

21. As a person’s past behaviour points to how that person will or might behave in future, the fact of the charges is sufficient for the Tribunal to conclude that the applicant’s presence in Australia may or might be a risk to [Ms A] and [Ms B].[8]

    [8] See [13] above and the authorities cited there.

22. Section 116(1)(e)(ii) refers to the health or safety of an individual or individuals. Taking each of those matters in turn, self-evidently, the individuals to whom the applicant’s presence in Australia may constitute a risk are [Ms A] and [Ms B]. The applicant’s presence in Australia may constitute a risk to [Ms A] and [Ms B’s] health or safety (or both) for the purpose of s.116(1)(e)(ii). Plainly, the risk that one person might assault another constitutes a potential threat to the second person’s health or safety.

23. Accordingly, the Tribunal finds that the applicant’s presence in Australia may be a risk to [Ms A] and [Ms B’s] health or safety under s.116(1)(e)(ii) of the Act. The grounds for cancelling the applicant’s visa under that section have been made out. 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

24. There are no matters specified in the Act or the Migration Regulations 1994 (the 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

25. [In] July 2018 the applicant was granted a Student (Subclasss 500) visa to undertake a Bachelor of [Subject A] at [University 1] which is [based] in Melbourne, Victoria. That visa was valid until 30 August 2023. [In] July 2018 the applicant arrived in Australia as the holder of the Student (Subclass 500) visa.

26. The Tribunal asked the applicant about his travel and stay in Australia, including whether he has a compelling need to remain in Australia.

27. At the hearing, the applicant stated that he wanted to stay in Australia to defend the charges against him, to complete his bachelor degree and to continue his relationship with [Ms B] (the new relationship having commenced in March 2019).

28. The Tribunal accepts that the applicant wishes to remain in Australia to defend the criminal charges against him. If the applicant is true to his expressed intent and he resumes his previous tertiary study, the principal purpose of his travel to and stay in Australia on a student visa will remain intact. The Tribunal accepts that, in part, the applicant wishes to remain in Australia to continue his relationship with [Ms B].

29. Overall, the Tribunal does not consider these matters individually, or cumulatively, constitute a compelling need to remain in Australia. The Tribunal gives this consideration no weight in favour of exercising the discretion to cancel the visa.

    The extent of compliance with visa conditions

30. According to the delegate’s decision record, provided to the Tribunal by the applicant, the applicant’s enrolment in the Bachelor of [Subject A] undergraduate degree at [University 1] was cancelled on 29 April 2019. This was due to non-payment of fees and constituted a breach of condition 8202 of the Student (Subclasss 500) visa.

31. On 14 May 2019 the applicant was sent an unsatisfactory attendance notice relating to semester one 2019.

32. The Tribunal asked the applicant about the extent of the applicant’s compliance with visa conditions. The applicant told the Tribunal that he held a satisfactory attendance record at [University 1] and that he has never been employed in breach of his visa conditions. He told the Tribunal that he understood that [University 1] only ‘reported him’ for non-attendance reasons after he was remanded in custody. The Tribunal accepts that the applicant’s studies have been impacted by him being remanded in custody. The Tribunal does not agree with the delegate that the applicant’s failure to pay fees in recent times indicates that the applicant has decided not to continue with the course.

33. On 24 May 2019 the applicant was granted a Bridging visa E. There is nothing before the Tribunal to indicate that the applicant has not complied with this visa.

34. On balance, the Tribunal considers that this consideration weighs against cancellation of the applicant’s visa and the Tribunal has given this some weight.

    The degree of hardship that may be caused

35. The Tribunal asked the applicant about the degree of hardship that may be caused if his visa remains cancelled.

36. The applicant said that if his visa remained cancelled and he had to return to China he would suffer hardship. He said that if he had to return to China without the educational qualifications he came to Australia to complete, he wouldn’t be able to enrol in further study because he hasn’t participated in the Chinese national university entrance examinations. The Tribunal accepts this may be the case.

37. The Tribunal accepts that the applicant will suffer some hardship if his visa remains cancelled and he must return to China without a qualification. The Tribunal accepts that the applicant came to Australia to obtain a tertiary degree, and a degree will assist him in China. The applicant told the Tribunal that he is an only child. The Tribunal accepts that the applicant’s parents may consider the money they have spent on educating the applicant in Australia to have been wasted if he returns to China without a degree. The Tribunal weighs those matters in the applicant’s favour.

38. The applicant told the Tribunal that he considers that he will suffer hardship if his visa is cancelled because, he considers, this will reduce the likelihood of him being granted bail. The applicant also told the Tribunal that [Ms B] has become, and is likely to continue to be, distressed at the thought of his visa being cancelled. In her oral evidence to the Tribunal, [Ms B] confirmed the existence of the relationship between the applicant and her. The Tribunal accepts that cancellation of the applicant’s visa may make it harder for him to continue his new relationship with [Ms B]. The Tribunal also weighs this in his favour.

39. The Tribunal considers that this consideration weighs against cancellation of the applicant’s visa and the Tribunal has given this some weight.

    Circumstances in which ground of cancellation arose

40. The cancellation power under s.116(1)(e)(ii) was enlivened when the Victorian Police charged the applicant as described above.

41. According to the report dated 19 March 2019 from [Psychologist A], forensic psychologist, the applicant is alleged to have run a knife along a cable tie on [Ms A’s] wrist “like he was making the action to cut it”.

42. In this review, the Tribunal is not tasked with deciding whether the applicant is guilty or innocent of the charges. In any event, it does not have sufficient evidence before it to decide the matter. The Tribunal does however observe that the applicant has been charged with serious offences.

43. The Tribunal asked the applicant about the circumstances in which the ground of cancellation arose. The applicant responded that, he considers, it is unwise to consider cancelling a visa when criminal charges are yet to be determined. Whilst not directly on point, the applicant also responded that he now resides in a different part of Melbourne to his former partner.

44. The Tribunal considered the applicant’s assertion that it is unwise to consider cancelling a visa when criminal charges are yet to be determined. The Tribunal’s task however is simply to assess the relevant risk within the meaning in s.116(1)(e)(ii), and this must not be confused with the notions of guilt or innocence.[9] The Tribunal has proceeded on this basis.

    [9] MZAJA v Minister for Immigration & Anor [2017] FCCA 448 at 15 per Judge Riethmuller.

45. Whilst the Tribunal acknowledges that the applicant residing in a different part of Melbourne to his former partner reduces the risk that he poses, it does not extinguish the risk entirely.

46. Given the seriousness of the charges, the Tribunal considers this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal has given this consideration the greatest weight.

    Past and present behaviour of the visa holder towards the Department

47. There is nothing before the Tribunal to indicate that the applicant hasn’t been cooperative with the Department.

48. At the hearing the Tribunal gave the applicant the opportunity to comment on his past and present behaviour towards the Department. Whilst not directly on point, the applicant responded that he hasn’t had a criminal record in the past, that he has been seeing a psychologist and that he is now less emotional. When questioned about his past and present behaviour towards the Department, the applicant continued with his out of place response, saying that he is willing to continue to attend counselling in the future and that he has been trying to control his behaviour. These matters are addressed below.

49. The Tribunal considers that this consideration weighs against cancellation of the applicant’s visa and the Tribunal has given this consideration some weight.

    Whether there would be consequential cancellations under s.140

50. This section of the Act provides that where an individual’s visa is cancelled, and they have other members of their family who are dependent on their visa, then the dependent visas are also cancelled.

51. The evidence before the Tribunal is that the applicant is the only holder of the relevant visa and that he does not have any dependents attached to his visa.

52. This consideration is therefore neutral and does not weigh in support of or against cancellation of the applicant’s visa.

    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

53. At the hearing the Tribunal invited the applicant to comment in relation to this factor and he reiterated his desire to be able to continue to study in Australia.

54. The applicant will remain in Australia until his criminal trial. If he is not granted bail,[10] he will remain in criminal custody until his trial. Whether the applicant remains in custody after the trial will depend on whether he is found guilty and receives a custodial sentence. If he receives a custodial sentence, he will serve his sentence in criminal custody. Once he serves any custodial sentence, or if he is acquitted, subject to some other visa application he might make, he will likely be removed. He will not remain in indefinite detention by reason of his visa being cancelled. The Tribunal has taken those matters into account.

    [10] By letter dated 25 July 2019 the applicants’ solicitors in his criminal matters advised that the applicant intends to apply for bail at the Magistrates Court of Victoria [in] August 2019.

1. 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 of the Regulations prescribes the classes of visas for which the applicant may apply. They are not subject to the s.48 restriction. 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.

2. Public Interest Criterion (PIC) 4013(3) of Schedule 4 to 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.

3. 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 operation of the PIC such as compelling or compassionate circumstances justifying a further visa grant. But the Tribunal has taken into account the possibility that the applicant will not be able to make out an exception to the operation of the PIC and also weighed that in his favour.

4. But 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.

5. This consideration weighs against cancellation of the visa and the Tribunal has given this some weight.

   Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation including the best interests of any children affected by consequential cancellation or cancellation would lead to removal in breach of Australia’s non-refoulement obligations

6. 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.

7. The Tribunal has considered Australia’s international obligations. On the evidence before it, cancelling the applicant’s visa will not place Australia in breach of those obligations.

   Other relevant matters

8. When the Tribunal questioned the applicant about his interactions with the Department, his answer seemed out of context (see paragraph 47 above). For completeness, the Tribunal accepts that the applicant has not previously been involved with the police and that he has sought psychological help.

9. In accordance with the procedure in s.359AA of the Act, the Tribunal put to the applicant that he sent an email to the police informant entitled ‘Fuck You’ in which he threatened to kill [Ms A] and himself. The applicant told the Tribunal that he did not send the email and that he would provide evidence that the email was sent by another person. That evidence has not been provided and the Tribunal does not accept that the applicant did not send the email, or at least instruct the email to be sent.

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

    DECISION

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

    P. Wood
    Senior Member