Chang (Migration)

[2018] AATA 5104

Chang (Migration) [2018] AATA 5104 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tzu-Yun Chang

CASE NUMBER:  1715165

HOME AFFAIRS REFERENCE(S):           BCC2017/1362173

MEMBER:John Cipolla

DATE:13 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 13 August 2018 at 2:20pm

CATCHWORDS
MIGRATION – cancellation – subclass 457 (Temporary Work (Skilled) visa – whether the applicant may be a risk to the public health, safety of an individual or individuals – criminal conviction for domestic violence offences – applicant is offshore  – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

CASES
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) 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 delegate concluded that the presence of the applicant in Australia is or may be, or would or might be a risk to the health, 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 8 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

5. Recourse to the delegate’s decision record, which was annexed to the application to the Tribunal for merits review indicates as follows:  the applicant entered Australia as the holder of the Subclass 417 Working Holiday visa on 18 May 2008. On 20 May 2016 the applicant was granted a Subclass 457 Temporary Work Skilled visa as a sponsored employee of a business called Souperman QV to work in the nominated position of Cook. On 10 April 2017 the visa holder was charged with a range of criminal offences in the State of Victoria which included kidnapping; false imprisonment; make threats to kill; aggravated assault; and assault with a weapon. The offences were domestic in nature and directed at the applicant’s ex-wife.  The decision record indicates that the applicant was remanded in custody from 11 April 2017 and was due to next appear in court on 12 July 2017. The decision record notes that an interim domestic violence intervention order was granted by the courts in Victoria. The decision record noted that Victoria police determined that these were serious offences that involved violence, deprivation of liberty and use of a weapon.

6. The delegate found that the charges indicated unacceptable behaviour in the Australian community and showed a disregard for Australian laws. The delegate went on to find that the grounds for cancellation under s.116(1)(e) and having regard to the relevant guidelines determined that the visa should be cancelled.

7. The Tribunal conducted a review hearing on 16 May 2017.

8. At the outset of the review hearing the Tribunal made reference to the decision under review. The Tribunal noted that the applicant had been issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 457 visa which was dated 28 June 2017. The Tribunal noted that the NOICC identified a ground for the cancellation of the applicant’s visa under s.116(1)(e)(ii) namely that there was evidence before the delegate that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The NOICC made reference to the applicant being charged with a range of criminal offences in Victoria on 10 April 2014 and the fact that the applicant, as a consequence, had been remanded in custody since 11 April 2017. The Tribunal noted that the delegate proceeded to cancel the applicant’s visa in a decision made on 10 July 2017.

9. The Tribunal explained to the applicant the process of merits review and that the Tribunal was reviewing the cancellation decision of the Department of Immigration made in July 2017.

10. The applicant provided his name and date of birth. The Tribunal asked the applicant when he first came to Australia and he advised it was on 27 May 2008 as the holder of a Working Holiday visa. The applicant advised that he held two such visas enabling him to work and travel in Australia over a period of 2 years. The Tribunal noted that this indicated the working holiday visas expired in May 2010 and the Tribunal asked the applicant what type of visa he applied for after that time. The applicant advised that he applied for a Student visa and that he studied in Australia between 2011 and 2014. The Tribunal asked the applicant what type of visa he held after he completed studying and he advised that he obtained a Subclass 457 working visa which was granted to him on 20 May 2016

11. The Tribunal asked the applicant when he most recently departed Australia and he advised in October 2017 at the expiration of his period of imprisonment. The Tribunal noted that the evidence indicated that the applicant had lived in Australia from May 2008 until October 2017 and the applicant confirmed that this was the case. The Tribunal asked the applicant about the charges of 10 April 2017 and the Tribunal made reference to the charges listed in the NOICC of kidnapping; forced imprisonment; make threats to kill; aggravated assault; and assault with a weapon. The Tribunal asked the applicant how we ended up being charged with these offences. The applicant stated that after he obtained his Subclass 457 visa he commenced working on this visa. He advised that his wife and two children were initially in Taiwan but eventually came to Australia as dependent members of his family unit.  The applicant stated that after his wife came to Australia that she abandoned their two children leaving them with him and that she went to her boyfriend in Australia. The applicant stated that on the night in issue he was extremely furious at his wife’s behaviour and at around 12am he was waiting at the door of his wife’s boyfriend’s house and witnessed them both arriving back at the house. He advised that he had a quarrel with his wife and after that his wife got into their car and suggested that they could talk. The applicant stated that he and his ex-wife quarrelled in the car and that she later called the police about the incident and said that he had hit her in the car. The applicant stated that they both hit one another. The applicant stated that when he and his ex-wife got home he cooked a meal for their children and that there was cutlery in the sink and he wanted to put the cutlery away and that his ex-wife told him to put the knife that he was holding down which he did. The applicant stated that the argument continued and that his ex-wife sent a message to her boyfriend on her mobile and that the applicant then went to bed but the next day the police attended the premises.

12. The Tribunal asked the applicant what he was charged with and he advised kidnapping; holding a knife; assault; threatening to kill. The Tribunal asked the applicant whether he was granted bail after being charged with these criminal offences or whether he was refused bail. The applicant stated that he was confined to prison from April 2017. The Tribunal asked the applicant when he was released from prison and he advised on 16 August 2017 and that he departed Australia for Taiwan in October 2017.

13. The Tribunal asked the applicant what the outcome of the criminal proceedings were, namely whether he was convicted and what penalty he incurred as a consequence. The applicant stated that he was convicted of some of the criminal charges for which he spent 128 days in prison. The Tribunal asked the applicant what charges he was convicted of and he advised the charge of assault and the charge of threatening to kill. The Tribunal asked the applicant whether he entered a plea in these criminal proceedings of either guilty or not guilty. The applicant stated that he engaged Legal Aid to assist in the criminal proceedings and that he initially pleaded not guilty but Legal Aid advised him later to plead guilty so that he could get out of jail.

14. The Tribunal asked the applicant whether he and his wife were now formally separated and he advised that upon returning to Taiwan he and his ex-wife were divorced. The Tribunal asked the applicant whether he had custody or access to his children. The applicant stated that he had custody of his children and that they were in his full-time care. The Tribunal asked the applicant whether his ex-wife had access to the children and he advised that she did, and that this access included weekends and school holidays. The Tribunal asked the applicant whether he and his ex-wife were on speaking terms and he advised that they were. The Tribunal asked the applicant whether he was working in Taiwan and he advised that he was. The Tribunal asked the applicant whether he believed that the charges in Australia and the subsequent criminal convictions were at the serious end of the spectrum and he advised that they were very serious and in his view very unfair.

15. The Tribunal asked the applicant, given that his visa had been cancelled and given that he had returned to his home country of Taiwan why he was still pursuing this review and what his motivations in doing so were. The applicant stated that he wanted to remain in Australia and that he wanted his children to have access to a better education offered to them in Australia.

16. The Tribunal noted that the delegate in the cancellation decision record noted that the matters the applicant was charged with were serious and indicated unacceptable behaviour in the Australian community and showed a disregard for Australian law. The applicant was invited to comment on the delegate’s findings in this respect. The applicant stated that he was very sorry and did not have knowledge of Australian law and that his ex-wife’s boyfriend is an Australian citizen. The applicant stated that he did not think that the offences were as bad as the police made out. He advised that his ex-wife is still in a relationship with this boyfriend. The applicant stated that things escalated as a result of the argument that they had on the night.

17. The Tribunal noted that given that the applicant had been found guilty of criminal charges in Australia there were prospective character issues if he planned a return to Australia and whether he had sought advice about this. The applicant advised that he had not sought advice.

18. The Tribunal explained the low threshold that grounded a cancellation under s.116(1)(e) and that the charges and subsequent convictions and period of imprisonment would be enough to ground a cancellation under this legislative provision. The Tribunal explained to the applicant the relevant factors it needed to turn its mind to with regard to whether or not the applicant’s visa should be cancelled.

19. The Tribunal discussed with the applicant the purpose of his travel to and stay in Australia. The applicant stated that from May 2008 as advised he was the holder of two working holiday visas and that he then studied for an extended period in Australia before obtaining a Subclass 457 visa to work for an Australian business as a Cook on 20 May 2016 a visa that was valid until May 2020.

20. The Tribunal asked the applicant whether he complied with visa conditions apart from the offences in issue. The applicant stated that he had always previously complied with visa conditions.

21. The Tribunal discussed with the applicant what hardship he would suffer if the visa remained cancelled. To this end the Tribunal asked the applicant whether he had found work in Taiwan and the applicant confirmed that he had. The Tribunal asked the applicant about his living circumstances in Taiwan. The applicant stated that his parents owned a property and that he and his two children were living with his parents.

22. The Tribunal asked the applicant whether his ex-wife was pursuing permanent residency through her Australian citizen boyfriend and the applicant stated that he had no idea about this, that his ex-wife was currently living in Taiwan as she had access to the children each weekend. The Tribunal asked the applicant whether there were any other reasons that he wanted the Tribunal to consider as to why his visa should not be cancelled. The applicant stated that he had no other reasons to present and that he was just furious on the day that he was charged with criminal offences and was not able to control himself. The applicant stated that if he returned to Australia he promised that he would not engage in this sort of behaviour again. The hearing concluded.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

24. 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(e)(i). 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?

25. A visa may be cancelled under s.116(1)(e)(i) if the Minister or the Tribunal 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.

26. 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.

27. In the case of Gong[2016]FCCA561 at 41 Judge Smith stated with regard to s.116(1)(e) that:

    “While it is true, as the applicant submits, that the word “risk” entails an element of futurity, the addition of the words “or may be” and “or might be” by the 2014 amendments undermines the balance of the applicant’s arguments. Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e)”.

28. The Tribunal finds that on 14 April 2017 the applicant was charged with a number of criminal offences in the state of Victoria. These offences included kidnapping; false imprisonment; make threats to kill; aggravated assault; and assault with a weapon. The evidence before the Tribunal indicates that the applicant as a result of being charged with these offences was bail refused and remanded in custody. The applicant plead guilty to the charge of threatening to kill and to the assault charge and the other charges were not pursued. The applicant was convicted and his sentence was time served in prison from the time he was remanded in custody on 11 April 2017 until his release on 16 August 2017. The Tribunal finds that the threshold to ground a cancellation under s.116(1)(e)(i) is a low threshold and agrees with the sentiment of Judge Smith in Gong that for the ground for cancellation to arise there does not need to be “any direct, solid or certain foundation before the power to cancel a visa can arise…it can arise on the possibility that some event occurred in the past”.  In the case before the Tribunal this has been clearly grounded in the laying of the charges against the applicant in April 2017 and his conviction on two of the charges in July 2017.

29. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

30. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

31. The Departmental guidelines pertaining to the exercise of discretion cover such matters as:

    ·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

    ·the extent of compliance with visa conditions

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

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    ·past and present conduct of the visa holder towards the department

    ·if breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

    ·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

    ·whether there would be consequential cancellations under s.140

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

    ·any other relevant matters.

32. The applicant entered Australia as the holder of a Working Holiday visa in May 2008.  The applicant then held student visas and eventually was granted a Subclass 457 visa on 20 May 2016 valid until May 2020.  It is this visa that was cancelled by the Department.  The Tribunal notes that this visa only entitles the holder to temporary residence.

33. There is no evidence that the applicant has not complied with visa conditions.

34. The Tribunal discussed with the applicant at the review hearing that it has had regard to the conviction for domestic violence offences for which the applicant served a full time custodial sentence and that this sentence was indicative of the seriousness of the charges and subsequent conviction.  The applicant in his evidence to the Tribunal conceded that the charges were serious but he also believed they were unfair.  The Tribunal finds that the charges and subsequent conviction pertaining to domestic violence offences when collectively considered are serious and this is reflected by the fact that a full time custodial sentence was imposed on the applicant.

1. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

2. If the applicant’s Subclass 457 visa is cancelled he will not be able to return to Australia to undertake the balance of his employment with his sponsoring business.  The Tribunal discussed with the applicant that a prospective return to Australia may be impeded on character grounds due to his conviction for domestic violence offences in Australia.  The Tribunal enquired with the applicant at hearing whether he had sought any advice around this issue and he advised that he had not.

3. There are no persons in Australia whose visas will be subject to cancellation under s. 140 of the Act.

4. There is no evidence before the Tribunal that Australia would be in breach of any international obligations as a result of the cancellation of the applicant’s visa.

5. The applicant has not raised any other matters.

   CONCLUSION

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.  The Tribunal accordingly affirms the decision under review.

   DECISION

7. The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.

   John Cipolla
   Senior Member