2300993 (Migration)

[2023] AATA 1172

2300993 (Migration) [2023] AATA 1172 (1 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Chang Liu

CASE NUMBER:  2300993

MEMBER:Margie Bourke

DATE:1 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 01 May 2023 at 3:17pm

CATCHWORDS

MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – applicant convicted of several offences – gambling debt owed to a loan shark – financial hardship – claim of rehabilitation – non-refoulement obligations – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; 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 17 January 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 417 (Working Holiday) visa under s.116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(g) on the basis that a prescribed ground existed for the cancellation of the visa under reg 2.43(1)(oa) . 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 was invited to a hearing to be conducted by video on 13 April 2023. At the time the applicant was held in detention at [a named] detention centre, but the video connection was unable to be made from the detention centre on the day. The hearing was re-scheduled for an in-person hearing on 26 April 2023.

4. The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review. The representative did not attend the video hearing or the in-person hearing on behalf of the applicant. The Tribunal discussed with the applicant that he could contact his representative after the hearing to seek advice on matters discussed in the hearing. The Tribunal gave the applicant the opportunity to advise the Tribunal in writing by 4pm on 28 April 2023 whether he intended to provide any further submissions to the Tribunal in relation to matters discussed in the hearing. The Tribunal did not receive any contact or any submissions from the applicant or the applicant’s representative after the hearing.

6. 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

7. 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(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?

   s.116(1)(g) - prescribed ground

8. 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant, and requires in the case of the holder of a temporary visa other than a Subclass 050 visa, a Subclass 051 visa or a Subclass 444 visa, that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

9. The Tribunal is satisfied based on the submissions provided by the applicant to the Department and the evidence of the applicant in the hearing, that the applicant came to Australia in January 2022 as the holder of a Working Holiday Subclass 417 visa. The Tribunal is satisfied that the applicant was the holder of a temporary visa, that was not a Subclass 050 visa, a Subclass 051 visa, or a Subclass 444 visa. The Tribunal is satisfied based on the submissions and attachments provided by the applicant to the Department (including the notices of orders made by [Court 1] [in] October 2022) and the evidence of the applicant in the hearing, that the applicant was convicted of three counts of intentionally cause injury and three counts of false imprisonment, all of which occurred on [a day in] August 2022. The Tribunal is satisfied that the applicant has been convicted of offences against the law of the State of Victoria, by orders of [Court 1] dated [in] October 2022.

10. The Tribunal notes the submission of the applicant’s representative to the Department dated 25 December 2022, that the representative acts for the applicant [named], and conceded that there is a ground pursuant to s.116 of the Act to cancel his visa as he pleaded guilty to charges at [Court 1] and was sentenced to [term] imprisonment [in] October 2022. In his evidence the applicant stated that he had been arrested [in] August 2022, remained in custody until the court date, pleaded guilty to the charges and was convicted and sentenced to [term] imprisonment and was released from criminal imprisonment [in] February 2023.

11. The Tribunal is satisfied that a prescribed ground for cancelling the applicant’s visa applies as the applicant was the holder of a temporary visa, namely a subclass 417 visa, and has been convicted of offences against laws of a State. A prescribed ground therefore exists under reg 2.43(1)(oa), and the Minister may cancel the applicant’s visa pursuant to s.116(g) of the Act.

12. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(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

13. 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’.

14. The Tribunal is satisfied based on the evidence of the applicant that he received the notice of intention to consider cancellation under s.116 of the Act whilst he was in [a named] prison in December 2022. The Tribunal is satisfied based on the evidence of the applicant that he discussed the Notice and his response with his representative. The Tribunal is satisfied the representative provided a written response with attached documents dated 25 December 2022 to the Department in December 2022 on behalf of the applicant.

15. The Tribunal has considered the applicant’s written response and attached documents provided to the Department dated 25 December 2022, and his evidence at the hearing. The applicant provided letters in support with his submission dated 25 December 2022, and the applicant also provided three additional letters in support to the Tribunal prior to the hearing.

16. The purpose of the applicant’s travel and stay in Australia, including any compelling need to travel or remain in Australia: – the applicant stated that his parents run a small [business 1] business in Taiwan and have accumulated a debt to the bank in relation to this business. The applicant stated he came to Australia to earn money to assist his parents to repay this debt. The applicant stated he was not certain of the amount of his parents’ debt. He stated that he had remitted between $1000 and $2000 (AUD) each month prior to his arrest to his parents to assist with the repayment. The applicant stated after his arrest he was able to send two more transfers of money to his parents from savings he had in his own bank account, in the amount of $2200, and $1500 approximately. The applicant stated he arrived in Australia in January and commenced work in February 2022. The applicant was arrested [in] August 2022.

17. The applicant stated he is separated from his wife and has a child, who lives in Taiwan. The applicant stated that he sends money to his father who forwards this financial support to the child.

18. The applicant stated that he accumulated a debt through gambling in the amount of $50,000 AUD, owed to a loan shark in Taiwan. The applicant stated the loan shark would come to him if he returned to Taiwan and not allow him to have a peaceful life until this debt was repaid. The applicant stated he has also repaid $10,000 of this debt to the loan shark whilst in Australia.

19. The Tribunal has considered the reference from the applicant’s employer dated 20 December 2022 and the references from the applicant’s work colleagues dated December 2022 and March 2023. The Tribunal is satisfied that the applicant was respected as an employee during his time of employment from February to August 2022.

20. The Tribunal gives weight to the purpose of the applicant’s travel and stay in Australia in favour against cancellation of the visa.

21. Compliance with visa conditions: – there is no information before the tribunal that the applicant has not substantially complied with the conditions attached to his visa. The Tribunal gives this weight against cancellation of the visa.

22. Degree of hardship that may be caused to the applicant and other family members: – the applicant stated to the Tribunal that his parents are still working in the [business 1], and that one of his brothers also works in his parent’s [business 1]. The Tribunal is satisfied that the applicant’s parents run their own business, and therefore have an income, but accepts they have an outstanding bank loan. The Tribunal accepts that the applicant was employed from February to August 2022, and sent financial support to his parents in Taiwan during this period. The Tribunal accepts the applicant also sent financial support through his father to his son during the period February to August 2022. The Tribunal is satisfied that although the applicant may have been able to send some further financial support after his arrest, the applicant has not been able to send regular financial support to family members in Taiwan since his arrest in August 2022. The Tribunal accepts that there will be a degree of financial hardship caused to family members in Taiwan who hoped to be able to rely on further financial support from the applicant, if the applicant’s visa is cancelled.

23. One of the references from a friend of the applicant who resides in [Suburb 1], provided by the applicant, refers to the applicant’s father not being in good health. This letter also described the applicant as being a single-parent family.  The applicant stated both his parents were alive and working in the [business 1], and the applicant is not a single-parent as he does not have the custody of his son. The Tribunal is satisfied that neither the applicant nor his father is correctly described as a single-parent family. The applicant did not describe either of his parents as being in poor health. For these reasons, the Tribunal does not find the evidence of the applicant’s friend from  [Suburb 1] as reliable evidence as to the state of the applicant’s father’s health or marital situation.

24. The applicant claims that he will also experience hardship if his visa is cancelled because he has a debt to loan sharks in Taiwan. The Tribunal discussed with the applicant that he had not previously provided this information to the Department in his responses dated 25 December 2022 or to the Tribunal. The applicant stated he had told his representative that he had a personal debt.

25. The Tribunal discussed with the applicant whether he could provide information or evidence in relation to his personal debt or the repayments he had made. The applicant stated he had paid AU$10,000 to the loan shark, separate from the money he had remitted to his parents. The applicant stated the money was paid to the loan shark from his Taiwan bank account. The applicant stated in his bank account in Taiwan was not authorised to receive international transfers. The applicant stated he transfer the money to a friend who then transferred into his bank account in Taiwan and then it was transferred to the loan shark. In answer to question from the Tribunal querying that his bank account in Taiwan could receive international transfers from someone else but not from the applicant, the applicant stated that his friend’s bank account changes the Australian dollars into Taiwanese currency, and then transfers that into the applicant’s bank account. The applicant stated there were two friends who had undertaken these transfers for him, [named], but they were not in Australia.

26. The Tribunal discussed with the applicant that it had trouble accepting his evidence in relation to his debt to a loan shark and the repayment of this debt. The Tribunal discussed that the applicant had never mentioned his own personal debt prior to the hearing, or his fear of returning to Taiwan. The Tribunal discussed with the applicant that he had not provided statements from the two people he named as friends who undertook the transfers for him, the applicant had not provided the evidence of the transfers from his Australian bank account, or the transfers into or out of his Taiwanese bank account. The applicant stated he had evidence on his phone of transfers to his friends. The Tribunal stated this was not helpful, but the Tribunal would give the applicant time after the hearing to provide further evidence of his debt, or bank transactions from both his Australian and Taiwanese bank accounts, if he chose to do so.

27. The Tribunal discussed with the applicant near the conclusion of the hearing whether he had easy telephone access to contact his representative. The applicant stated he could call his representative without difficulty from the detention centre. The Tribunal advised the applicant it would allow him until 4pm on Friday, 28 April 2023 to advise in writing to the Tribunal as to whether he wished to provide further submissions. The Tribunal discussed that this would allow the applicant the opportunity to contact his representative, and decide whether he chose to provide the Tribunal with any further submissions or documents relevant to the review. The applicant did not provide any response to the Tribunal within the timeframe that he intended to provide any further submissions or information.

28. The Tribunal accepts that the applicant had been employed and earning a regular income prior to his arrest in August 2022. The Tribunal accepts that the applicant had been financially supporting his parents and son in Taiwan. The Tribunal accepts that the cancellation of the visa will cause a degree of financial hardship to the applicant and other members of his family. The Tribunal gives this weight in favour against cancellation of the visa.

29. The circumstances in relation to which the cancellation of the visa arose: –the applicant was convicted of serious offences including three counts of false imprisonment and three counts of intentionally causing injury. The offences occurred while the applicant was the holder of a temporary visa, a subclass 417 visa. The applicant was not released on bail after being charged with the offences. The applicant pleaded guilty to the charges. The applicant was sentenced to a period of imprisonment of seven months. These are serious offences and, as was set out in his submission to the Department dated 25 December 2022, the applicant had no prior criminal record, yet [Court 1] determined that the offences warranted an immediate prison term to be served.

30. In the submission dated 25 December 2022 to the Department, the applicant’s representative submitted that he is completely rehabilitated by serving seven months imprisonment. The applicant stated that he did not undertake any courses while in prison but worked in the garden. He stated he had done a course while in immigration detention, but that he could not understand any of it. The Tribunal finds that the applicant has not completed any courses or training aimed at rehabilitation. The Tribunal notes that the applicant pleaded guilty to the offences. The applicant has been in either criminal or immigration detention since the offences occurred, and there is no evidence before the Tribunal, apart from being in custody, that the applicant has rehabilitated. The applicant stated to the tribunal that he was remorseful.

31. The Tribunal gives the circumstances in relation to which the cancellation of the visa arose weight in favour of cancellation of the visa.

32. Past and present behaviour to the Department: – there is no evidence before the Tribunal of any negative behaviour by the applicant towards the Department. The Tribunal gives this weight in favour against cancellation of the visa.

33. Consequential cancellations: – there is no person whose visa would consequentially be cancelled pursuant to the operation of s.140 of the Act if the applicant’s visa was cancelled. The Tribunal gives this consideration neutral weight in its assessment for or against cancellation of the visa.

34. Mandatory legal consequences: – the Tribunal is satisfied that upon cancellation the applicant would be subject to ongoing detention, and potential removal from Australia, and to the impacts and limitations of the requirements of PIC 4013 and s.48 of the Act. The Tribunal gives this consideration weight in favour against cancellation of the visa.

35. International obligations: – there is no evidence before the Tribunal that the applicant has the children or family members in Australia, and therefore cancellation of the applicant’s visa would not cause Australia to breach of its international obligations in respect of the best interests of the child or family unity under the International Covenant on Civil and Political Rights or the Convention on the Rights of the Child.

36. The applicant raised in the hearing a fear of returning to Taiwan because of his debt to a loan shark. The applicant stated the loan shark would not allow him to have a peaceful life. The applicant stated the loan shark would come to him for the repayments.  The Tribunal has carefully considered whether the applicant, as a citizen of Taiwan, would be in breach of its international obligations if the visa was cancelled, because of its obligations in relation to non-refoulement pursuant to the Convention relating to the Status of Refugees, or Australia’s obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the International Covenant on Civil and Political Rights. The applicant has not applied for protection. The applicant did not provide any further submissions, or advise the Tribunal that he wished to provide further submissions in relation to the review. The Tribunal discussed with the applicant in the hearing that he had not provided any documents in relation to the debt or the repayment of the debt about which he gave evidence in the hearing. The Tribunal discussed with the applicant that he had not provided statements from the friends whom he said had assisted him to transfer money back to Taiwan to repay the loan shark debt from his Taiwan account. The Tribunal gave the applicant the opportunity to discuss this issue with his representative who had not attended the hearing, and to advise the Tribunal if he wished to make further submissions or provide further evidence.

1. The Tribunal accepts loan sharks may lend money in Taiwan and may have unscrupulous methods in relation to repayment. The Tribunal also accepts that Taiwan has an established police force, with city police departments, criminal investigation division, District prosecutors’ offices, and a working criminal justice system. The Tribunal notes that a person with a fear of violence from loan sharks could seek protection from the State through the Taiwanese police force and other government agencies. However the Tribunal has not considered this aspect of a person claiming fear of returning to Taiwan because of a debt to loan sharks in more depth as to whether Australia could be breaching its international obligations by cancelling the applicant’s visa in this review because the Tribunal does not accept as reliable the oral evidence of the applicant that he has a fear of returning to Taiwan because of an outstanding debt to a loan shark.

2. The Tribunal has considered the applicant’s claim that he fears to return to Taiwan because of an outstanding debt to a loan shark. The Tribunal finds the applicant has provided insufficient evidence, including no documentary evidence and unreliable oral evidence, in support of the claim. The Tribunal gave the applicant the opportunity to provide further evidence in support of the claim but he did not do so. The Tribunal has noted that it is open to the applicant to make an application for a protection visa.

3. Consequently the Tribunal is satisfied that based on the information available to Tribunal, the cancellation of the applicant’s visa would not result in the breach of any of Australia’s international obligations, including non-refoulement obligations. The Tribunal gives this consideration neutral weight in its assessment for or against cancellation of the visa.

4. Other relevant matters: – the Tribunal has considered the letters in support of the applicant, including the descriptions of the applicant as a very hard-working person and a responsible person. The Tribunal has considered the description of the applicant as a person who participated in team activities and tries to improve. The Tribunal gives this consideration weight in favour against cancellation of the visa.

5. The Tribunal has considered all the circumstances and the evidence before it. The Tribunal gives the most weight to the circumstances in which the cancellation arose. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 417 (Working Holiday) visa.

   Margie Bourke
   Member