2119573 (Migration)

[2022] AATA 4134

2119573 (Migration) [2022] AATA 4134 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Amy Lee (MARN: 0215803)

CASE NUMBER:  2119573

MEMBER:Jason Pennell

DATE:30 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made 30 September 2022 at 11.28am

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – applicant convicted of offences – fears persecution from the government in China – applicant entitled to remain in Australia until Protection visa application is decided – decision under review set aside

LEGISLATION
Criminal Code Act 1899 (Queensland)
Migration Act 1958 (Cth), ss 48, 116, 140, 189, 198
Migration Regulations 1994 (Cth), r 2.43; Schedule 4, Public Interest Criterion 4013; Schedule 8, Visa Condition 8101

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 14 December 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(g) on the basis that [in] December 2020 the applicant was convicted of charges pursuant to [specified sections] of the Criminal Code Act 1899 (Queensland). 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 28 September 2022 to give evidence and present arguments. 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.

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

consideration of Claims and evidence

1. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g) of the Act. 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.

Applicant’s background

1. The applicant was born on [date] in Chongqing, China. The applicant’s father worked as a farmer and passed away in 2021. The applicant’s mother remains alive and continues to live in Chongqing. The applicant has a brother and a sister who both continue to live in Chongqing.

2. The applicant’s evidence was that she attended school in Chongqing. The applicant attended [a] School and completed her qualification as a [Occupation 1]. The applicant completed school when she was 17 years old.

3. The applicant was married in or about 2003, when she approximately [age] years old, and divorced in or about 2008, when she was [age] years old. The applicant has [children], a boy, and a [girl]. Her children continue to live in Chongqing City.  Her daughter lives with her father and is training to be a [occupation]. The applicant’s son is living with his grandmother and is training to be a [occupation] at [a] school.

4. After leaving school the applicant worked as a [Occupation 1] for two [years]. The applicant’s evidence was that she worked night shift but resigned because of her health. The applicant then owned and operated a [business] at [a market]. The applicant’s husband also worked in the market The applicant’s evidence was that she then worked as an administrative assistant for a [company] but was not able to tell the Tribunal the name or location of the firm.

5. The applicant’s evidence to the Tribunal was that she claimed that in China her business had failed, and she and her family had run up large amount of debts. She travelled to Australia to avoid being harmed. Her evidence was that she would be persecuted in China by the local government[1] Her family had been threatened by gang members in China because of having borrowed money which they were not able to repay. The applicant provided the Tribunal with a statement with Certified Translation dated 22 August 2022.

   [1] Applicant’s response to the NOICC dated 5 December 2021. Department file: [deleted] Record of whether to cancel under Section 116 of the Migration Act 1958 document id [number] 14/12/2021

Does the ground for cancellation exist? - s.116(1)(g) - prescribed ground

1. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. Section 116(1)(g) of the Act states:

   ‘Power to cancel

   (1)   Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   (g)  a prescribed ground for cancelling a visa applies to the holder.’

2. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (‘the Regulations’). Reg 2.43(1)(oa) states:

   ‘r2.43(1)   for the purposes of paragraph 116(1)(g) of the Act:

   (oa) in the case pf the holder of a temporary visa other then a subclass 050 Bridging (General) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 44 (Special Category) visa- that the Minister is satisfied that the holder has been convicted of an office against a law of the Commonwealth, a State or territory (whether or not the holder the visa at the time of the conviction and regardless of the penalty imposed (if any)).’ 

3. On [date] December 2020, in [Court 1], Queensland, the applicant was convicted of [specified offences] in breach of [specified sections] of the Criminal Code Act 1899 (Queensland) (the offences’).[2] The Tribunal was provided a copy of the applicant’s Personal History Report provided by the Queensland Police to the Department dated 4 October 2021 (‘the police report’) which detailed the offences.  

   [2] Department file: [deleted] Record of whether to cancel under Section 116 of the Migration Act 1958 document id [number] 14/12/2021

4. The applicant’s evidence to the Tribunal was that she had been charged and convicted of the offences.[3]

   [3]    Department file: [deleted] Applicant response to NOIC document id [number] 5/12/2021

5. Based on the police report and the applicant’s own evidence, 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

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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

The purpose of the visa holder’s travel and stay in Australia.

1. The applicant first arrived in Australia on [date] June 2014 on a Visitor’s visa and remained onshore until [date] June 2014. The applicant’s evidence was that she had initially travelled to Melbourne as a tourist.

2. The applicant returned to Australia on [date] February 2018, on a visitor’s visa. The applicant’s evidence was that she had travelled to Australia because her family were experiencing financial difficulties. She claimed that she had her family had been threatened by gang members in China because of having borrowed money which they were not able to repay.

3. Nevertheless, on 11 May 2018, the applicant applied for a student (subclass 500) visa. The applicant’s evidence was that she had studied [Occupation 1] in China and wanted to obtain an additional qualification to her existing qualification. However, the applicant did not meet the criteria for the grant of the student visa, and as a result her application was refused on 19 June 2018.

4. The applicant maintained that she arrived in Australia for the purposes of making a protection visa application. Her evidence was that she did not understand Australia Law at the time of her arrival and that she had been advised by her representative at that time to apply for a student visa. As a result, on 8 July 2018, the applicant made an application for a protection visa claiming that she feared returning to China. This application has not been determined.

5. The Tribunal specifically makes no finding as to the merits of the applicant’s application for a protection visa. Nevertheless, it accepts that the applicant has made an application for a protection visa and as such, places some weight on this matter in the applicant’s favour.

The extent of compliance with visa conditions

1. The applicant visitor’s visa had several conditions attached which included the condition 8101 (No Work). The no work condition was carried over onto her Bridging A visa and her current Bridging C visa.[4]

   [4] Department file: [deleted] Record of whether to cancel under Section 116 of the Migration Act 1958 document id [number] 14/12/2021

2. In the applicant’s response to the NOICC dated 5 December 2021, the visa holder admitted to working in Australia to assist their family in China. The applicant’s evidence to the Tribunal was that she had worked in a restaurant in Melbourne and then as a fruit picker in Queensland. Her evidence was that she worked so that she could send money to her parents to help repay the monies they owned and to help pay for medical expenses of her father. Nevertheless, based on the applicant’s own evidence she has been working in breach of the no work condition attached to their current visa.[5] The Tribunal places some weight on this consideration in favour of cancelling the applicant’s visa.

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

[5] Department file: [deleted] Record of whether to cancel under Section 116 of the Migration Act 1958 document id [number] 14/12/2021

1. The applicant stated in her response to the NOICC[6] that she cannot return to China because she fears persecution from the government in China and needs to work to financially support her family in China. The applicant claims that she was divorced from  her husband without any financial support. Her father was seriously ill before he passed away and she needed to work to be able to support her family to be able to pay his medical expenses. In addition, she claimed that her mother is sick and incapacitated and her sister suffers for chronic diabetes and is now unable to work. As a result, she continues to have to provide money to her family members to help meet their medical expenses.

   [6]    Department file: [deleted] Applicant response to NOICC document id [number] 5/12/2021

2. The applicant conceded to the Tribunal that she had been working while in Australia in breach of her visa conditions. She claimed that due to her poor English she was not aware that it was a condition of her visa that she could not work. In any event she claims that she was forced to earn money to help her family pay their debts and medical expenses.

3. The applicant has made a valid protection visa application that is yet to be determined. The Tribunal notes that the applicant is entitled to remain in Australia until her Protection visa application is decided.  It may be open to her to apply for an appropriate Bridging visa in association to her Protection visa application to allow her to work or study.[7]

   [7] Dept file: [deleted] Doc ID: [number] 14/12/2021; Record of whether to cancel under Section 116 of the Migration Act 1958

4. The Tribunal notes that the applicant has been charged and convicted similar offences to those referred to above on two other occasions. The Tribunal notes that the law relating to [one of the offences] varies in states across Australia. In such circumstances it was not clear if the applicant would have been charged with such offences in other states of Australia. In any event there was no evidence that the applicant represented a risk to the health safety and good order of the Australian community over and above the offences for which she was convicted.  The Tribunal places some weight on this consideration in the applicant’s favour.

The circumstances in which ground of cancellation arose.

1. The applicant was convicted of [specified offences] in [Court 1] on [date] December 2021. The applicant’s evidence that she needed [money] to be able to support herself and to be able to repay  her family’s debts and medical expenses in China.  

2. The applicant’s evidence was that she was aware of her mistake but claimed that she was forced into the situation because her father was seriously ill in hospital and the family required a lot of money to save his life. Her mother is unable to work because of illness, and she is responsible for raising her son alone since she and her husband have divorced. Her son is at college and has tuition and living expenses. She also states that she does not understand Australian law and does not know English.[8]

   [8]    AAT file 2119573: Translated applicant statement dated 22 August 2022.

3. The applicant advised that she has applied for protection in Australia and requires the Australian Government to protect her because she cannot go back to China. She claims that the Chinese Government will persecute her if she returns to China.

4. The applicant claims that her whole family relies on her to earn money in Australia and send it back to them because they are poor and suffer from illness, and her child is in college and the tuition fees are high. It is for these reasons that she felt she had to resort to committing the crimes for which she was convicted[9]

Past and present behaviour of the visa holder towards the department

[9]    Dept file: [deleted] Applicant response to NOICC Doc ID: [number] 5/12/2021

1. There is no information to indicate the visa holder has been uncooperative with the Department in the past and is currently being co-operative in relation to the cancellation consideration matter[10]

Any consequential cancellations under s 140

[10] Dept file: [deleted] Doc ID [number] 14/12/2021; Record of whether to cancel under Section 116 of the Migration Act 1958

1. The applicant is the sole applicant on her application for a protection visa, therefore no consequential cancellations under s 140 would arise.

Any mandatory legal consequences

1. If the visa is cancelled, the applicant will become an unlawful non-citizen and she may be detained under section 189 of the Act and removed from Australia under s.198 of the Act.  If the applicant does not voluntarily depart Australia, as she would no longer hold a valid visa.

2. The applicant has a pending Protection visa application before the Department and is therefore entitled to remain in Australia until a decision is made on that application.

3. The applicant would be subject to section 48 of the Act which may prevent her from applying for certain visas while in Australia and she may also be affected by Public Interest Criterion 4013 which limits the grant of further temporary visas for a specified period. She may not be permitted to work or study in Australia following a visa cancellation.[11]

Australian international obligations.

[11] Dept file: [deleted] Doc ID: [number] Record of whether to cancel under Section 116 of the Migration Act 195814/12/2021

1. The applicant is a citizen of China. She arrived on a visitor visa and has made application for a protection visa. She claims that she will be subjected to serious or significant harm if she is returned to China. The applicant’s protection visa application has not been determined. As a result, the applicant is entitled to remain in Australia until such time as her application for a protection visa has been determined. The tribunal gives this consideration considerable weight in the applicant’s favour.

2. The applicant otherwise does not have any strong family, business or other ties in Australia.

Other relevant matters

1. There are no other relevant matters to be considered.

2. Having considered all the circumstances, the Tribunal concludes that the visa should not be cancelled

decision

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

Jason Pennell
Senior Member