Chen (Migration)

Chen (Migration) [2022] AATA 853 (21 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Pei-Yi Chen
CASE NUMBER:  2104214
HOME AFFAIRS REFERENCE(S):          BCC2020/1045599
MEMBER:David McCulloch
DATE:21 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 21 February 2022 at 3:57pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – secondary applicant to partner’s visa – criminal conviction and intensive correction order –circumstances of offence and level of complicity – completion of community correction order and continuing employment – financial support for partner’s studies, and business interests – mental health – character references – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3), 359AA
Migration Regulations 1958 (Cth), r 2.43(1)(oa)
CASE
Minister for Immigration and Citizenship v Li [2013] HCA 18
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

This is an application for review of a decision dated 26 March 2021 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 (Cth) (the Act).
The applicant is a citizen of the Republic of China (Taiwan) born on [Date 1]. The visa that was cancelled was granted on 16 January 2020, expiring on 5 May 2023.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 29 September 2020. The applicant provided responses to the NOICC on 8 October 2020 and 15 March 2021. On the first occasion, the applicant invited the delegate to withdraw the NOICC. On the second occasion, the applicant provided the Department with a written submission.
The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was listed as the secondary applicant in her partner’s student visa application. Her partner is Miss Chia-Chi Chen, born on [Date 2]. A search on the Provider Registration and International Student Management System (PRISMS) indicates that Chia-Chi Chen is currently studying at the National Institute of Education and Technology; this course of study will end on 30 January 2022. She is also enrolled in another course at the same institution from 7 March 2022 until 5 March 2023.
The applicant is currently on a Bridging visa E and the conditions of her Bridging visa are: report as directed, notify new address, show valid passport and must not engage in criminal conduct.
The applicant appeared before the Tribunal on 31 January 2022 at 10am to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal was assisted with the use of an interpreter in the Mandarin language. The applicant was represented in relation to the review by her legal representative, who attended the hearing.
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
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?
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 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).
The delegate’s decision record and documents on the Department file indicate that, according to a report provided by the NSW Police, the applicant was convicted of the following criminal offences on 17 September 2020 at the Tamworth Local Court: one count of concealing serious indictable offence (with maximum imprisonment not more than 20 years) of another person, with a 16 months Intensive Correction Order commencing on 17 September 2020 including 120 hours of community service work. Upon appeal, the Tamworth District Court varied the sentence to a Community Correction Order for 12 months commencing on 8 March 2021.
In the hearing, the Tribunal acknowledged the conviction.
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
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’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder's control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations, provisions in the Act which prevent the person making a valid application without the intervention of the Minister, whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.
The Tribunal sets out the factual claims alleged in relation to the circumstances of the criminal conviction, explanations on behalf of the applicant as to the true factual circumstances, submissions made on behalf of the applicant, supporting documents provided and a summary of various character references provided on behalf of the applicant.
The New South Wales Police Facts Sheet outlines the allegations against the applicant relating to the charges as follows.
The victims, YSL, YCC and SCC moved into an address in Tamworth. Prior to moving into the premises, the victims had a dispute with others in relation to the renting of the premises, including with the applicant. The applicant was attempting to rent the property to associates at a price of $580 per week. The victims managed to rent the property for $500 per week directly from the owner.
On 23 December 2019, four offenders approached the premises, armed with a metal baseball bat and knife sharpening steel. They also brought a backpack, spray paint tins, cable ties and silver tape. They were wearing gloves and face masks.
The offenders knocked on the front door and pushed it open, striking SCC in the face. They ‘violently’ assaulted the victims. SCC was punched, kicked and repeatedly struck with the baseball bat. YSL was struck with the sharpening steel and baseball bat to his head, which caused wounding and loss of vision, and with the baseball bat to his leg. YCC was repeatedly punched in the head area, repeatedly hit with the baseball bat to his head, back, shoulder and leg areas. He was also choked in a head lock.
The offenders then tied the victims with silver tape and cable ties. They collected the victims’ property, including mobile phones, car keys, laptops, passports and car registration papers. Some of the offenders sprayed different coloured paint on the walls, floor and furniture causing major damage to the property. They also spray painted YCC’s clothes in the wardrobe. The victims were left tied up until SCC managed to free himself.
YSL suffered seven sutures to a wound on his head, bruising and soreness to his left leg and ankle, bruising and soreness under his left arm/rib area, bruising and soreness to his back and marks and cuts on his left wrist area. He had a dint or pit area with soreness on top of his head.
SCC suffered from a fractured left hand, graze and soreness to his head and face, bruising and soreness to his arms, shoulders, back and left leg.
YCC suffered from laceration on his right wrist, soreness to the hand, left leg and back.
Police obtained a witness statement from the applicant in which she stated that she did not know the identity of the persons involved. On 29 January 2020, police conducted a search at an address in Merrylands, where they found two passports in the name of YCC and SCC. On 29 January 2020, police arrested and charged Z and K, the alleged principal offenders.
Z provided evidence about the applicant being involved in organising the said offences. Z and K provided evidence about being recruited and paid to commit the offences.
Police located two videos of the violent offences and messages on the LINE app with the applicant within Z’s mobile phone.
Some details of those messages are as follows: On 22 January 2020, Z said, ‘I want to sell them’, referring to two images of the victims’ passports. The applicant replied, ‘Then sell them.’ Z informed the applicant about the video, stating, ‘The video will be permanently deleted after one more day. I just downloaded and saved it.’ The applicant replied, ‘Did you switch off the phones before chucking them away’ and ‘I am worried that their positions may be locatable.’ Further messages were exchanged about the type of phones that were stolen and the applicant provided advice about attempting to have the phones unlocked.
Z asked, ‘Fuck. It’s been almost a month. Ha-ha-ha. Are police still investigating?’ The applicant replied, ‘They wont (sic) find anything’, and ‘Ah-Chieh is being a fucking loudmouth idiot. He’s been telling people that we arranged people to … have them bashed and robbed.’
The applicant stated, ‘If anything should happen to us … they’d be so dead too. We are all players if they want to play the game.’
Z states, ‘A friend who was with us last time has gone back to Taiwan.’ The applicant replied, ‘Anyway, we are all in if they want to paly (sic). You are talking about Eric, right?’ Z replied, ‘Mm….The battle tank’.
Z spoke about selling one of the victim’s computers and that it was ‘wiped clean’. The applicant asked, ‘Were there any nude photo’s (sic) on it? Would be good to spread them around.’
On 5 March 2020, the police spoke with the applicant at her residence. The applicant mentioned she had heard a person known as ‘Eric’ might have been involved but otherwise did not know any other information about who was involved or what had happened to the victims’ stolen property. The applicant was arrested.
During an Electronically Recorded Interview of a Suspected Person (ERISP) interview, the applicant denied any knowledge or involvement in the offences. She denied knowing anything about the persons responsible or about the victims’ stolen property. The applicant denied knowing Z and K. When challenged with evidence outlined in the LINE app messages, the applicant declined to answer any further questions.
Provided on the applicant’s behalf to the Department on 15 March 2021 was a submission on the applicant’s behalf, which included the following assertions:
·That the reduced sentence the applicant received upon appeal to the District Court was in line with her culpability, seriousness of the crime, the risk she presented, etc.
·That s 116(1)(g) is a discretionary cancellation power which must be exercised reasonably. A decision under which if lacking an evident and intelligible justification or cannot be reached by a reasonable person based on the evidence would be an incorrect decision tainted with jurisdictional error: Minister for Immigration and Citizenship v Li [2013] HCA 18.
·That policy guidelines require the delegate to consider nine matters (if relevant) when deciding whether to cancel a visa. The guidelines are extracted in the submissions.
·That the delegate cannot weigh any factor under the policy guidelines against the visa holder, but the weight can only be neutral or in favour of not cancelling the visa.
·That there is a compelling need for the applicant to remain in Australia as she has been in a committed and continuing relationship with the primary student visa holder since 2017, and was included in the visa as a de facto partner.
·That according to the applicant’s psychologist, the applicant’s mental state is expected to deteriorate rapidly should she be forcefully separated from her partner.
·That the applicant is the sole breadwinner who supports her partner’s studies in Australia.
·That the applicant is involved in business interests in Australia.
·That the COVID-19 pandemic would make it extremely risky and costly to return to Taiwan.
·That cancelling her visa would involuntarily separate her from her partner who would have to stay in Australia to complete her education, which would have considerable effects on both the applicant and her partner.
·That the current travel restrictions applicable to temporary visa holders would prevent the applicant’s partner visiting her in Taiwan or other countries and returning to Australia.
·That the applicant would be subject to PIC 4014, which prohibits the grant of most temporary visas in Australia for three years, which would prevent the applicant from visiting her partner in Australia.
·That the applicant had never breached her previous Australian visa conditions.
·That the involuntary physical separation would add stress and hardship to the couple, as confirmed by a psychologist.
·That the couple would not be able to achieve their original plans were the applicant to leave Australia.
·That the applicant would become an unlawful non-citizen who was subject to removal and detention, which would place significant hardship on the applicant’s partner who was supposed to focus on her studies.
·That financially, it might be difficult for the applicant’s partner as she relied primarily on the applicant’s income.
·That the physical separation would have a severe impact on the couple’s mental health and put a strain on the relationship.
·That a ‘sufficient degree’ of financial, emotional and psychological hardship would be caused to the applicant and her partner.
·That the applicant was cooperative in her response to the NOICC.
·That the applicant had always been working on her immigration and criminal matters actively.
·That the applicant had shown sincere remorse and was assessed as presenting a low risk of reoffending.
·That the applicant proactively engaged in community service work even after completing the required number of hours in the sentencing.
·That the applicant had shown no disregard for the immigration law.
·That the mandatory legal consequences of the cancellation decision would be that the applicant would become an unlawful non-citizen, be barred by s 48 of the Act and be subject to a 3-year exclusion period under PIC 4014.
·That the applicant is a person of good character.
·That the applicant had never been convicted of any other crimes.
·That her character is supported by numerous character references.
·That the applicant’s psychologist had provided a professional assessment on the applicant’s general character, which is described as cooperative, open to communication, genuinely remorseful and sincerely sorry.
·That the applicant had always been positively involved in the Australian community through her business interests.
·That the applicant’s criminal charge and conviction was a ‘once-off event’.
A psychologist report by Dr Yan Jiang, dated 12 March 2021, has been provided to the Department which states that the applicant became tearful when talking about her dealings with the police and the court. The report indicates that her depression, anxiety and stress levels were normal. It recalls the circumstances surrounding the offence in the applicant’s version. The Tribunal notes that this version is substantively different from the Police Facts Sheet of which the Tribunal is in possession. In the report, the applicant’s account of the factual details of offence was as follows (not corrected for spelling or grammar):
Ms Chen ‘s Offence
Ms Chen reports the following information to me regarding her criminal charge:
·In 2019, Ms Chen's friend K, also from Taiwan, had disputes with another Taiwanese man Mr Li due to leasing a property.
·K was angry and told Ms Chen he would find someone to 'teach Mr Li a lesson'. Ms Chen indicates she tried to persuade K to give up the idea, but K did not seem to listen.
·The 'lesson' ended up with four offenders invading Mr Li's house, physically assaulting Mr Li and his two flatmates, stealing their properties. and damaging the property by spraying paint inside it.
·When being asked by police in December 2019. Ms Chen denied she knew about the offence or the identity of the offenders. Ms Chen admits she was aware of K's involvement in the crime at the time but honestly did not know the identity of the offenders. She also did not know how serious the offence was.
·From January 2020, people living in Tamworth discussed the case and tried to figure out who committed it. From the information spread, Ms Chen got to know that she might know one of the offenders (Zhang). She and Zhang had some chats online. Some conversations were regarding the case.
·The police arrested Zhang and another offender at the end of January 2020.
·Ms Chen was arrested on 05/03/2020 as the police found her chat history with Zhang.
·Ms Chen was then charged with Conceal Serious Indictable Offence of another person
·In September 2020, Ms Chen's case was finalised. She was sentenced with an Intensive Corrective Order and 120 hours of community services.

In the report, the applicant reported experiencing social withdrawal, fear of going out, shortness of breath, disrupted sleep, excessive dreams, reduced appetite and intense anxiety. She gradually calmed down with her partner’s comfort and support. She was diagnosed with likely Adjustment Disorder, ‘triggered by a change in the environment or the presence of external stressors’, but her mental health was otherwise positive. Her stressor at that time was identified to be her pending visa status and the anxiety that she would have to separate from her partner. The applicant reported that she had accepted the consequence of her action and had asked to do more community service work than required to make amends for her mistakes. She felt sorry and guilty.
The report goes on to discuss the applicant’s homosexuality and her tense relationship with her parents and two brothers. It states that she was her partner’s primary source of financial support. In the author’s opinion, without her partner’s company and support, the applicant’s mental health was likely to deteriorate and it was unlikely that she would pose a risk to the community in the future.
An additional submission was received on behalf of the applicant to the Tribunal on 28 January 2022 together with supporting documents and statements. The submission relies on previous submissions made. It indicates that the applicant has completed her Community Correction Order and remains gainfully employed in an Australian business that she has an ownership interest in. Payslips are provided in relation to this employment. The applicant is gainfully employed and has not reoffended.
It is submitted that the reason that the applicant did not go to police to report what she believed may have happened was because of fear of the offenders. This was reasonable in the circumstances. The conviction was for knowledge rather than some sort of violent criminal offending by her. This results in the applicant’s offending needing to be considered in a different light than those who actually committed the offence given the applicant’s lack of control or influence over any of the offenders and her fear of the offenders.
The following additional documents were provided by or on behalf of the applicant to the Department and the Tribunal:
·An Overseas Student Confirmation of Enrolment (CoE) of Miss Chia-Chi Chen from the National Institute of Education and Technology with a course date from 7 March 2022 to 5 March 2023.
·A CoE of Miss Chia-Chi Chen from the National Institute of Education and Technology with a course date from 1 February 2021 to 30 January 2022.
·Multiple bank statements of the applicant and the applicant’s partner, supposedly evidencing their living together as follows:
o   Multiple ANZ Progress Saver Account Statements of Miss Chia-Chi Chen from 12 July 2016 to 12 January 2017, from 12 July 2017 to 12 January 2018, and from 12 July 2018 to 11 January 2019.
o   An ANZ Progress Saver Account Statement of Miss Chia-Chi Chen from 12 July 2019 to 10 January 2020.
o   An ANZ Access Advantage Cheque Statement of Miss Pei-Yi Chen from 11 November 2016 to 12 January 2017.
o   An ANZ Access Advantage Statement of Miss Pei-Yi Chen from 11 May 2018 to 12 July 2018.
·The applicant’s TU-500 visa grant which would expire on 5 May 2023.
·The applicant’s previous TZ-417 visa grants on 16 May 2016 and 24 January 2017.
·Documents advising of a court outcome issued by the District Court of NSW, dated 8 March 2021.
·A letter from the applicant’s previous solicitor and registered migration agent requesting the Department to withdraw the NOICC, dated 8 October 2020.
·A Police Criminal Record Certificate from the Republic of China, dated 19 February 2021, showing no conviction record in Taiwan.
·A letter from NSW Community Corrections with an attendance sheet, dated 4 February 2021, which states that the applicant had completed her required community service work condition of her Intensive Correction Order, which was made on 17 September 2020.
·A confirmation of Overseas Student Health Cover from NIB, under the applicant’s name, covering the period from 13 July 2018 to 5 June 2023.
·Multiple utility bills from Supagas, dated 2 September 2020, 15 October 2020, 30 November 2020, 15 December 2020 and 9 March 2021.
·A vehicle registration under the applicant’s name, which expired on 31 July 2021.
·A vehicle registration under Miss Chia-Chi Chen’s name, which expired on 6 July 2021.
·A certificate of comprehensive motor insurance under Miss C Chen’s name for the period of 2020-2021.
·A joint Commonwealth Bank proof of balance dated 14 March 2021, showing a balance of $20,330.00 and $21,361.11 as at 13 March 2021.
·An ASIC company search of A&S Industry Pty Ltd, dated 3 February 2021, showing the applicant and her partner each own 10% in ordinary shares while the remaining 80% shares are owned by Xiaolu Wang.
·Miss Chia-Chi Chen’s ING account statement from 1 October 2020 to 31 December 2020, showing a balance of $172.15.
·An email from the applicant to Mr Dean Fisher dated 25 February 2021, asking for an update on community service work that might be available for the applicant to do.
·A Sentencing Assessment Report for the Tamworth Local Court dated 3 September 2020, which assesses the applicant as ‘suitable’ to undertake community service work.
·The applicant’s notice of assessment for the period ending 30 June 2018, showing a taxable income in the amount of $27,348.00.
·The applicant’s notice of assessment for the period ending 30 June 2017, showing a taxable income in the amount of $36,521.00.
The following character references were provided for the applicant:
·From Vicki Whitson, a manager at Michel’s Pattiserie and a friend, dated 29 August 2020, which states that the charge the applicant was facing was an inaccurate representation of her character and that she had learnt from her mistakes. It also states that the applicant reported the principal offender to the police.
·From Wen-Long Hsieh, a medical physics specialist of Tamworth Hospital and a friend, dated 22 August 2020 and signed 30 August 2020, which states that the applicant was friendly, willing to help people and make people happy. It also states that after the criminal charge, the applicant looked stressed and disappointed, and was worried about her future.
·From Jeffery Dai, director of Mad Foods Pty Ltd, dated 14 August 2020, who came to know the applicant through work two years prior, which states that the applicant was hardworking, honest and had great integrity. The author was assisting her during her court proceedings by way of providing language assistance between her and her legal counsel. The letter states that the applicant had shown great remorse, regret and shame. It also states that the applicant reported the ‘persons associated with the offenders’.
·From Mrs Judith Marie Huggins, the applicant’s next-door neighbour, dated 20 August 2020, which states that the applicant was ‘a courteous, honest, hard working and caring young lady.’ The author believes the offence to be out of character.
·From Xiaolu Wang, the store manager of Michel’s Pattiserie in Dubbo, dated 1 March 2021, which states that the applicant was ‘kind and warm hearted with a keenness to help people.’ The letter also states that the applicant was remorseful, regretted her action and felt shame. It recalls that the applicant volunteered to perform additional community service, demonstrating a positive attitude. The author believes that the applicant’s actions were the result of an egregious lapse in judgement, and that she had learnt from her mistakes.
·From Chia-Chi Chen, the applicant’s de facto partner, undated. The letter recalls a brief history of their relationship and how they decided to come to Australia. It then turns to accuse Ms Kuan-Pin Huang of being the mastermind of the offence for which the applicant was convicted of concealing. The letter also states that the applicant often apologised and acted ‘under undue influence of a person who she believed was a close friend.’ The letter asks for the applicant to be given a second chance.
·From Fua Jualo, dated 18 February 2021, who came to know the applicant through the author’s employment at Lucky Wok in Tamworth, which states that the applicant was caring, bubbly, kind, sincere and helpful to others. The letter acknowledges the applicant’s acceptance of her responsibility and the applicant’s regret and sorrow for her actions. The letter also states that the applicant ‘was put in a difficult position between being loyal to a friend and doing the right thing’ and was not initially aware of the gravity of the offence.
·From Wen-Long Hsieh, dated 22 August 2020, which appears to deliver the same message as the other letter from the same author dated 22 August 2020.
·From Jeffery Dai, dated 18 February 2021, which appears to deliver the same message as the other letter from the same author dated 14 August 2020, with an added acknowledgement that the applicant had completed her community service and volunteered to perform extra hours.
·From Mrs Judith Marie Huggins, dated 1 March 2021, which appears to deliver the same message as the other letter from the same author dated 20 August 2020, while adding that applicant was deeply remorseful and moving forward in a positive and mature manner. The author believes the applicant was not a threat to society. A further supporting character reference is provided from this individual to the Tribunal dated 21 January 2022.
·From Maeve Calma Navarro, dated 1 March 2021, which states that the applicant was always willing to help and caring. The letter recalls the time that the author visited Taiwan and was assisted by the applicant. It also acknowledges the extra community service the applicant had performed voluntarily.
·From Paul O’Brien, food service manager of the Farrer refectory, dated 4 March 2021. The author came to know the applicant while she undertook her community service at the author’s workplace. The letter describes the applicant as being hardworking, cooperative and pleasant to deal with, while acknowledging that the applicant approached him to continue working on a voluntary basis, which he could not accommodate.
·From Steven Dai, director of A&S Industry Pty Ltd who was also the applicant’s business partner, dated 28 February 2021, which states that the applicant was trustworthy, hardworking and of good character with an ambitious entrepreneurial personality. It also states that the applicant had expressed her sorrow and guilt. It expresses the applicant’s wish to perform additional community service, and her actions as being unduly influenced by Kuan, the alleged mastermind of the principal offence. A similar testimonial was provided by this individual to the Tribunal dated 27 January 2022 together with an undated testimonial.
·From Vicki Whitson, dated 18 February 2021, which appears to deliver the same message as the other letter from the same author dated 29 August 2020, with an additional acknowledgement that the applicant had volunteered to perform community service beyond what was enforced by the Court.
·From Maeve Navarro dated 21 January 2022 indicating that the applicant was a kind, caring and thoughtful person and that she has experienced remorse for her role in the indictable offence. It indicates that the applicant volunteered to perform additional community service after her conviction, which represents her true character.
The Tribunal in the hearing put to the applicant pursuant to the procedural requirements of s 359AA of the Act adverse information contained in the New South Wales Police Facts Sheet setting out the factual allegations against her. In particular, the Tribunal went through the mobile phone text correspondence between the applicant and one of the individuals convicted of the principal crime. The Tribunal indicated to the applicant that this information was relevant because it indicated involvement by the applicant in the crime, including the applicant indicating that ‘if anything happened to us…they’d be dead too’. The information in the mobile phone correspondence is relevant because it indicates involvement by the applicant in covering up the crime and disposal of items stolen, together with an indication by the applicant that nude photographs on one of the computers stolen could be spread around. The Tribunal indicated that the information is relevant because it strongly suggests involvement by the applicant in the crime and its aftermath beyond mere knowledge of the commission of an indictable offence, even if she was not one of the principal perpetrators. The consequence of relying on this information could be to determine complicity by the applicant in the principal crime that would be an adverse factor considered in the exercise of the Tribunal’s discretion.
The applicant elected to respond following the hearing in writing. In response, the applicant provided the following statement (not corrected for spelling or grammar):
I would first like to apologise for being able to answer your question on during the hearing and taking up more of your time. Due to my poor English skills and the gravity of the situation, it was agreed between Mr Northam and I that writing this letter would better allow me to convey to you the events and my thoughts during those events and explain why it is I did and said the things that I did. I also want to thank you for your time and for giving me the opportunity to explain my actions. The following are the key events that took place both prior and after the night of the assault, to the best of my recollection.
It all began with a dispute over a rental property between someone whom I considered my best friend at the time, Kuan (the person who organised the events that took place), and one of the victims (Yu-Chuan Chiu). It began with a disagreement over who should rent the property in question, and lead to my friend and the victim verbally abusing one another.
This continued onto social media where both parties would trade insults through an instant messaging app called LINE. After seeing some of the nasty insults being sent to my friend, and out a misplaced sense of loyalty and being protective of someone whom I had cared about, I became involved in the back and forth in support of my friend.
On one occasion I overheard her talking on the phone to her friend, complaining about what she felt was bullying by one of the victims (Yu-Chuan Chiu). It was at this time that Kuan divulged to me that she was very upset about what had happened and the things that were being said to her. She also told me that she wanted to teach Yu Chuan, the victim, a lesson. At the time, I didn't think she was serious about seeking revenge and thought that she was just venting so I didn't voice my objections or try to dissuade her. I didn't press the issue further as I had hoped that after some time, Kuan's anger would subside and she would be more reasonable.
23/12/2019: On the day in question, while I was having a medical examination in Sydney, I received a phone call from Kuan in afternoon, informing me that her friends were going to Tamworth on that day to "teach them a lesson". I tried to dissuade her and told her to think things through but nothing I said could change her mind. She started to get upset with me and asked me whose side I was on. I knew Kuan had a short temper so, feeling powerless, and not wanting to upset her I didn't press her further. At that time, we were living together as housemates, so while I was concerned for a friend, I was also concerned about my own safety and that of my partner. For these reasons I stopped trying to talk her out of her plans, while also underestimating the lengths she was prepared to go to "teach them a lesson". As I also wasn't in Tamworth at the time, I felt there wasn't anything I could do, so didn't press the issue further.
27/12/2019: I was called into Tamworth police station to give a statement about the incident. Out of naivety, misplaced loyalty to a friend, and fear of the assailants, I did not disclose the information I had regarding the crimes committed. At that time, the information I had was limited to what Kuan had told me. I didn't know all the details, nor did I know all the assailants involved. Everything I knew about the incident was told to me by Kuan and some through gossip. I did not believe the information I had at that time was of much use to the investigation, and I was perhaps also motivated by the desire to protect myself and my partner. I knew what Kuan and her friends were capable of and I was afraid of what they would do if they found out I had informed on them. However, I did inform the detective after giving my statement that Kuan might have more information and provided him with her name and phone number. I still believed in the goodness of my friend and I thought that she would do the right thing if given the chance.
I was residing in Tamworth with housemates while my partner would visit whenever she could, so I was constantly afraid of that the offenders might do if they doubted my loyalty and I was acutely aware of what they were capable of. It was a difficult choice to make considering they knew where I and my partner lived and worked, and I realise now that the decision I made was the wrong one.
Shortly after the incident, the whole town was talking about the events that took place. Because Tamworth is a small town, with a close-knit Taiwanese community, our business is frequented by a lot Taiwanese customers who I had grown to know. It was through these customers and their gossip that I became aware of other details such as the stolen property and spray paint on the walls. This is how I knew about the details described in my correspondence with Zhang.
This is also one of the few moments that I had any dealings with the incident or anyone involved (apart from Kuan, whom I was still living and working with). This is the exchange in question that is included in the statement of facts and took place towards the end of January when I messaged Zhang (one of the offenders) about a car he had listed on Gumtree. That is when he sent me a photo containing two passports that he had stolen.
I know Zhang because I had bought an item off of him on Gumtree the previous year. That is the reason why his contact was saved on my phone, and because in our conversations, we realised we had worked at the same place in Tamworth. This is when he suddenly sent the passport, unprompted, and I asked Kuan, who was with me at that time why he sent the passport to but because of my curiosity and because the subject was the talk of the town, I started a dialogue with him to find out more details while offering up what I had heard from other people.
Because I knew who this person was, that he was associated with people capable of horrible acts of violence, and because Kuan was with me at the time, I tried to appease him by trying to relate to him to make it seem like I was on their side. It is during the course of these conversations that I said some terrible things that I now deeply regret and am embarrassed by.
Through my conversations with Zhang, and various other people, I became more aware of the gravity and severity of the situation. That is why on the 10th of February 2020, I contacted a lawyer by the name of Jason Neo at Accuro Legal and sought legal advice. I told the lawyer everything that I knew and the conversations with Zhang and asked the lawyer what should I do, and whether or not we should report to the police and that I was afraid that if I did report everything, they would seek revenge. The advice I received from the lawyer was to the effect of "You don't need to worry, if the police had found out something they will come and find you. Just wait and see" and he implied that if I reported the incident now, I could jeopardize my own position due to my earlier statement to the police.
I was brought into Tamworth police station in March and charged with concealing a serious indictable offense. At this time I sought legal counsel who advised me not to say anything until he arrived. That is why I was still uncooperative with the officers at this time.
After I was bailed, Zhang and Kuo called my bubble tea business number from prison but my partner was the one who answered. They asked about the whereabouts of Kuan and my partner told them Kuan had fled to Taiwan.
The following day, a third person claiming to be speaking on behalf of Zhang and Kuo contacted my partner.
They wanted my partner to contact the victims to find a way to get them to retract their statements or something to that effect, prior to their next court date so they can reduce their sentence.
They threatened my partner that if we didn't do what they demanded, they would find someone come to our house and implied that they would hurt my partner and l, this person also said that he was part of a criminal gang. Because we had reason to believe that these threats were credible, we were very scared as we were alone in a foreign country and they knew where we lived and worked.
The following day, the same person called my partner again and said because Kuan fled to Taiwan, Zhang and Kuo couldn't find her so we needed to take all the responsibility as her friend, so they began to blackmail us, demanding that we give them $80k-$100K to cover their legal fees, and if we didn't give them the money, they would tell the police that I organised everything and make our lives hell.
The calls were becoming more frequent and menacing when we didn't give them what they wanted. At this point, seeing the pain and suffering that my actions had caused my family and the person I loved most, I vowed not to make the same mistake. That is why, with the support of my partner, we decided to record some of these conversations and handed them to the police to help them with their investigation. This was a very difficult decision to make as I knew that I was putting myself and especially my partner in danger.
The friend whom I was trying to protect and help, Kuan, fled to Taiwan when she found out the people she had hired to commit the crime had been arrested. The incident that really drove home how stupid and naive I was, as when Kuan found out I had been charged, she told me it was none of her business and then proceeded to block me from social media and sever all lines of communication with me.
I know nothing I say or do now can change the past. I understand how poorly the messages reflect upon me. But I hope that my actions speak louder than my words. I hope my actions show that I have learnt from my mistakes. Words alone cannot express the regret and shame I feel for not only the inconvenience I caused to the police, to yourself and the courts, but also the pain I have caused to not only the victims by not helping bring their assailant to justice, but also to my family and in particular my partner, Cathy, whom I love more than anything in this world. Seeing her go through all of this with me and the thought of being separated from her has shown me how foolish I was to not heed her warnings about Kuan and helped me appreciate her the way she deserves.
While I deserve everything that I have suffered, Cathy didn't. I know now how fortunate I am to have her and the opportunity given to me by this beautiful country that I have grown to love, and I hope, with your blessing, I can begin to make things right. To both Cathy and the community that has welcomed me with open arms.
Thank you, from the bottom of my heart, for giving me the chance to explain my action, and for taking the time to read and take it into consideration.

Together with the statement, the applicant provided a bank statement highlighting three payments to Accuro Legal. Also provided was a confirmation of an appointment on 23 December 2019 with Bupa Medical Visa Services.
The Tribunal has taken into account the applicant’s explanations. The Tribunal is prepared to accept that the principal culprits falsely blamed the applicant for commissioning the crime. The applicant has explained that the incriminating text messages by her after the commission of crime were sent because she needed to appear supportive of the culprits. The Tribunal is not satisfied of this. For the Tribunal, the content tone of the text messages apparent from the Facts Sheet show a concerted attempt by the applicant to facilitate the covering up of the crime and evidence as well as identifying herself as a participant in the crime, even if not one of the principal culprits. Additionally, the applicant has admitted that she lied to police about her not knowing culprits.
The Tribunal does accept that the applicant approached a lawyer to seek advice, and that is a partially mitigating factor.
However, considering all of the evidence, particularly the tone and content of the incriminating text messages, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control around the events leading to the conviction that absolve her from responsibility. This and the circumstances of the applicant’s conviction are very significantly adverse to the applicant in the exercise of the Tribunal’s discretion.
A key relevant discretionary factor in this matter is the fact that the applicant is a dependent on a student visa substantively held by her partner who would be adversely affected by the cancellation.
In the hearing, the applicant indicated that she remains living with her partner in Australia who is studying a business course that will end in March 2023. Her partner then has plans for further study with the aim of facilitating permanent residence in Australia. The applicant indicated that, similarly, she has the aim of remaining permanently in Australia with her partner.
The Tribunal put to the applicant that one of the claimed hardships is that she would be denied, if the visa was cancelled, the ability to financially support her partner in her studies in Australia. The Tribunal put to the applicant that she would be able to work in Taiwan and financially support her partner in Australia. The applicant acknowledged this but referred to the significant emotional toll of separation. The Tribunal accepts that this would be a significant toll.
The Tribunal indicated that it would not be inclined to think that the hardship in returning to Taiwan as a result of the COVID-19 pandemic would be an overly relevant discretionary factor, given that the pandemic is a worldwide phenomenon and significantly affecting Australia. The applicant responded, ‘okay’.
The Tribunal does not consider that the COVID-19 pandemic is a significant discretionary factor in terms of the Tribunal exercising its discretion to cancel the visa.
The Tribunal noted to the applicant that whilst, if the visa remained cancelled, she could be an unlawful noncitizen and subject to immigration detention, she would continue to hold eligibility for a bridging visa to make her status lawful. The applicant acknowledged this.
If the visa remains cancelled there would be an exclusion period in relation to applying for many other categories of visa. The Tribunal accepts that this is a hardship to the applicant.
Notwithstanding the fact that the applicant would not be prevented from working to support her partner in Australia from Taiwan nor that the COVID-19 pandemic is not relevant, the Tribunal accepts very considerable hardship to the applicant and her partner if the visa remains cancelled. The Tribunal accepts the genuineness of the relationship and a long-term aim for future study in Australia by the partner with the aim of both the partner and her applicant gaining permanent residency in Australia. The Tribunal accepts significant hardship because of the impact of either the separation of the applicant from her partner or, if her partner decided to return with the applicant to Taiwan, an inability to continue with her studies in Australia and the denial of the ability of both of them to proceed on a pathway to permanent residence in Australia. The Tribunal accepts hardship on the basis that Australia is more tolerant in terms of the same sex relationship of her and her partner compared to attitudes in Taiwan.
The Tribunal accepts that the cancellation of the visa could well exacerbate mental health issues suffered by the applicant. The Tribunal accepts hardship as a result the applicant having to leave her employment in a business that she partly owns in Australia if the visa remains cancelled.
There is no evidence that there are any children in Australia whose interests would be affected by the continued cancellation of the visa.
The applicant indicated that she does not fear persecution or significant harm on return to Taiwan, but indicated that there could be discrimination based on her sexuality. The Tribunal asked the applicant if she was indicating she would be entitled to be a refugee in Australia, and she indicated that she was not. That being the case, the Tribunal is not satisfied that Australia’s non-refoulment obligations are enlivened in this matter.
Considered in the applicant’s favour are the many supporting character references that have been provided in relation to her.
The Tribunal discussed with the applicant in hearing the fact that on the Departmental file is a non-disclosure certificate issued under s 375 of the Act preventing the disclosure of certain documents on the file. The certificate is issued on the basis that the information would prejudice current or pending investigations, disclose a confidential source, contain information provided in confidence or disclose methods of investigating breaches of the law.
The Tribunal noted that the Tribunal would not consider that the certificate was valid to the extent that it covered the New South Wales Police Facts Sheet in terms of the allegations against the applicant because this information had been provided to the applicant. The Tribunal indicated that there is nothing additional in the documents covered that is relevant to the review. However, the Tribunal indicated to the applicant that procedurally it needed to give the applicant the opportunity to challenge the validity of the certificate.
The applicant’s migration agent indicated that there was no intent to challenge the validity of the certificate.
At the end of the hearing, the Tribunal indicated to the applicant that significantly adverse to the applicant was the conviction combined with the allegations set out in the Police Facts Sheet, particularly the mobile phone correspondence between the applicant and one of the individuals convicted in relation to the principal crime. The Tribunal indicated to the applicant that the apparent involvement of the applicant in the aftermath of the serious crime (even though her conviction relates only to knowledge of it) could make it very difficult for those factors to be outweighed by what the Tribunal would accept is the significant hardship that the applicant (and her partner) would face if the applicant’s visa remained cancelled.
For the reasons indicated above, the explanations provided by the applicant after the hearing do not detract from the Tribunal’s assessment in the previous paragraph.
The Tribunal weighs matters adverse to the applicant against matters favourable to her. For the reasons indicated, matters adverse to the applicant are very significantly adverse to her. While the Tribunal accepts that there will be considerable hardship for both the applicant and her partner if the visa remains cancelled, neither this factor nor any other discretionary factors in her favour outweigh the issues in this decision identified as adverse to her.
The Tribunal determines to exercise its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
David McCulloch
Member

[2022] AATA 853

21 February 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction