Chu (Migration)

[2023] AATA 2046

Chu (Migration) [2023] AATA 2046 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chun An Chu

REPRESENTATIVE:  Mr Chang Liu

CASE NUMBER:  2301401

HOME AFFAIRS REFERENCE(S):          BCC2022/4686753

MEMBER:Denis Dragovic

DATE:13 June 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 13 June 2023 at 9:49am

CATCHWORDS
MIGRATION – cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – ground for cancellation – convicted of an offence – false imprisonment – unlawful assault – intentionally cause injury – theft of motor vehicle – consideration of discretion – circumstances in which the non-compliance occurred – risk to the Australian community – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 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) and r.2.43(oa) on the basis that the applicant was convicted on 26 October 2022 of false imprisonment x3; unlawful assault x3; intentionally cause injury x3; theft of motor vehicle. He was sentenced to seven months imprisonment.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 2 June 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.

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(1)(g) which refers to a list of prescribed grounds for cancellation under r 2.43. Among the list of grounds for cancellation under r 2.43 is clause (oa) which was the basis upon which the delegate initiated the cancellation of the applicant’s visa. Clause (oa) reads:

   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))

8. 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?

9. The applicant was convicted and sentenced in the Magistrates Court of Victoria on the 26 October 2022 for false imprisonment x3; unlawful assault x3; intentionally cause injury x3; and theft of motor vehicle.

10. It is not in dispute that the applicant was charged and convicted as listed above. For this reason, 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

11. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

12. The applicant explained at the hearing that he wants to stay in Australia to work and earn money. He claimed that he left Taiwan as his family needed money. His father had a debt arising from a new property that they purchased and at the time his grandmother was admitted to hospital which put further financial pressure on the family.

13. The applicant explained that his father thought that if the applicant had the ability to earn money, then he should support the family. So the applicant came to Australia to work.

14. The applicant came and went from Australia working for several months each time. He first arrived in Australia on 8 June 2017 on a Working Holiday visa staying for six months. He then returned to Taiwan for three months whereupon he then obtained another Working Holiday visa staying in Australia this time for three months, departing in June 2018. In March 2022 he returned to Australia for the final time and has stayed since.

15. The applicant explained that both his father and elder brother work in Taiwan. The salary the applicant’s brother receives is not as good as what the applicant receives in Australia.

16. When the applicant went into prison and subsequently immigration detention his family managed financially as his elder brother provided additional income but, according to the applicant, it wasn’t enough.

17. I asked what will happen if he stops sending money to his family for a longer period. The applicant said that he doesn’t know. I suggested that the family could sell the new house that they bought. He said that he doesn’t know.

18. The applicant provided a further reason to stay, namely that he likes the lifestyle.

19. The applicant came to Australia for the reason of working to earn money and to send some money home to support his family. He came to Australia on three occasions which saw him return to Taiwan and remain for a few months on the first occasions and four years on the second. That he remained in Taiwan for such a long period, while I acknowledge that it covers a substantial time when international borders were closed, nevertheless indicates that the applicant’s family are able to cope without the income he earned in Australia. As such the need for him to remain in Australia arising from a purported need to earn income so as to share the financial burden borne by his family is not compelling. The applicant also said that he wanted to stay as he likes the lifestyle. Nothing more was said. While I appreciate that he likes the lifestyle, this is not a compelling reason in of itself. When considered as a whole, I place limited weight against cancellation.  

    The extent of compliance with visa conditions

20. There is no evidence before the Tribunal that the applicant has not complied with the visa conditions imposed on him. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.

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

21. The applicant described the hardship that he would face if his visa was cancelled as financial hardship on his father. I asked if Taiwan has a social security system. He said that it has, but he clarified that it is a low-income scheme and certain criteria need to be met.

22. I asked if his sister could get a job to lessen the hardship on his father, to which the applicant responded that she is working part time and studying part time in preparation for university. I put to him that if his family were in need, she would be able to find full time work. He said that she has to study as she wishes to go to university.

23. The applicant acknowledged that he would not have a problem finding work in Taiwan albeit less well paid.

24. In considering the hardship that would accrue to people impacted by the cancellation of the applicant’s visa, I note that his family would encounter increased financial stress as the wage differential between Australia and Taiwan, according to the applicant, would be substantial. But noting that it has been several years since the initial trigger to have the applicant leave Taiwan and through that period the applicant remained in Taiwan for over four years, I am satisfied that the degree of hardship is minimal and as such place limited weight against cancellation.

    Circumstances in which ground of cancellation arose.

25. The applicant described the circumstances leading to him committing the crime. He recalled at the hearing that he received a call from friends asking him to go out with them. They said that there might be an incident that could happen, and they asked that he gets prepared in advance. He claims that he didn’t think much about it and thought that as long as the conflict or dispute is resolved he could leave.

26. The preparation the applicant undertook for the dispute involved grabbing a baseball bat from his home while his friend grabbed some knives, they also took binding cables and surgical face masks as the applicant explained it was during the COVID pandemic.

27. He thought that he would need the baseball bat as his friend told him that there might be a fight but despite being forewarned about a possible fight the applicant claims that he didn’t ask his friend what it was about or why he needed to fight.

28. The applicant said that the drive to the location took ‘quite a while’. He was on his phone most of the time. I queried the applicant’s claim that he hadn’t been in a fight before, hadn’t used a baseball bat in anger before and yet in the car he was on his phone rather than asking why they were going to fight. He said that at the time it didn’t seem serious.

29. In total there were eight people in two cars heading to the location. Of the three others in his, two were known to him from Taiwan.

30. The applicant described the confrontation as follows. After coming out of the car they had a verbal dispute with the three or four occupants of the house and a fight ensued. He claims that he swung his baseball bat but didn’t hit anyone. The fight then moved inside.

31. Once they prevailed over the victims the applicant and those with him tied them up.

32. I asked if he was thinking that he shouldn’t be doing this. He concurred and explained that someone got hit in the head and was bleeding so they all stopped fighting. He claims to have pushed people away from this man and helped him clean his wound.

33. I put to the applicant adverse information under s 359AA noting that the information is relevant to the review as it shows a high degree of planning before the event and that he was aware of the seriousness of the pending incident. I noted that depending upon his comments it may lead me to place considerable weight on cancelling his visa due to the nature of his crime and if so, it may be a reason or part of the reason for me to affirm the matter.

34. The applicant chose not to take the offered adjournment. 

35. The adverse information covered several apparent omissions from his narration of the events of that day. I put to him that in the information available to the Tribunal it indicated that some people with him had machetes. The applicant did not have anything to add when this information was put to him under s 359AA although he had earlier stated that it was not normal to turn up to someone’s house with machetes and added that they were not planning on using them other than to scare them.

36. I asked the applicant whether he was a part of a Messenger chat group that included all of the eight people in two cars who had attacked the victims. He admitted that he was. He said that they discussed what to do if the police came, he said that he only then realized that the incident was serious. I read to him under s 359AA that the contents of the Messenger chats included the use of weapons, methods of tying up the victims and how to get away from the police. The applicant said that although he participated in the Messenger group, he did not contribute directly to the issue of how to get away from the police. Earlier he had also said that he should have thought about his involvement before it came to that stage.

37. The applicant claims to have been dragged along unwittingly but convicted based upon law of joint commission of an offence. He wrote in his submission and expressed at the hearing that he regrets what he did. He claims that while in prison he was thinking why he did it. He said that he didn’t realise the severity of the incident and the impact it would have on his family. He added that he didn’t think of any of the consequences to the victims.

38. I note that the circumstances of the incident that led to the grounds for cancellation depict a pre-meditated attack upon a group of people involving weapons that could have caused serious harm. The applicant’s claimed naivete does not align with the evidence including being asked to prepare for the incident, observing a friend take knives and then taking binding cables. That he did not ask any questions or seem concerned during the drive to the house adds an additional layer of concern over the applicant’s degree of sensitivity to the circumstances of others. It wasn’t until someone was seriously harmed that he made an effort to stop the violence but nevertheless continued to act illegally by helping to tie up the victims. Overall, these facts do not depict a person who was ‘dragged along unwittingly’. That he would claims as much in a statement is of further concern. Due to the circumstances surrounding the grounds for cancellation noting that they were pre-meditated with minimal responsibility taken for his actions, I place moderate weight in favour of cancellation on the basis that the circumstances of the offending are indicative of someone who remains a risk to the Australian community.

    Past and present behaviour of the visa holder towards the department

39. There is no evidence before the Tribunal that the applicant has had any adverse engagement towards the Department. Nevertheless, as this is a basic expectation of all visa holders, that he has complied leads me to place limited weight against cancellation.

    Whether there would be consequential cancellations under s 140

40. There are no consequential cancellations that arise from a cancellation of the applicant’s visa. As such I place neutral weight on this matter.

    Whether there are mandatory legal consequences

41. If the applicant’s visa is cancelled and he exhausts any rights of judicial review, he will be an unlawful non-citizen. Unless the applicant can regularise his position, he faces the prospect of being put on notice that he must depart Australia and if he refuses, he will be forcibly removed.

42. When asked if would leave under the circumstances of his visa being cancelled, he said that he would if he has no other alternative to stay.

43. Arising from s 48 of the Act the applicant, having had a visa cancelled, would be allowed to apply for a limited number of visas as prescribed by law. These are listed under reg. 2.12(1). The applicant’s circumstances do not align with any of the visas listed.

44. Another alternative option to stay is that the Minister grants the applicant a visa, whether or not the applicant has applied for it, under s 195A. This can occur if the Minister thinks it is in the public interest to do so. This is a highly unlikely possibility and little weight can be placed on such a possibility.

45. As the applicant has indicated that he would leave voluntarily if he has no other alternative to stay, I have not considered the provisions for forcible removal.

46. As a result of the applicant not having a viable pathway to remain in Australia a legal consequence of cancellation will be that he is asked to leave and may be placed on a Bridging Visa E with a limited time frame for planning his return to Taiwan.

47. Following his return to Taiwan, another legal consequence is that the applicant will not be able to apply for another Australian visa for a period of three years after he departs Australia arising from Public Interest Criterion 4014.

48. As the applicant has already applied for and was granted three working holiday visas, he is ineligible for any further working holiday visas regardless of this cancellation and PIC 4014. Nevertheless, he may have in the future an intent to apply for a different type of visa.  

49. Taking into consideration all of these mandatory legal consequences, I only place limited weight against cancellation for the reason that the applicant already has limited options to return to Australia regardless of whether his visa is cancelled having exhausted his working holiday visa quota. Nor is there evidence that other pathways are viable options for the applicant to apply for a visa offshore such as a partner visa or student visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

50. The applicant did not claim to fear harm upon return to Taiwan. There is no evidence before me to suggest that the applicant may have reason to hold a well-founded fear of persecution or that he faces a real risk of significant harm in Taiwan. As such the applicant is not at risk of refoulement.

51. The applicant does not have any children in Australia as such there are no considerations arising from the best interests of the child.

52. The applicant does not have a family in Australia as such there are no considerations arising from the principles of family unity found in various international instruments.

53. As such this consideration is neutral.

    Any other relevant matters

54. I have considered the applicant’s value to his past employer. The applicant used to work as a meat slicer in an abattoir prior to his imprisonment. A letter dated 20 December 2022 written by Mr Greg Wareham, Operations Manager and Michelle Cranston, Human Resources Manager, was received by the Department in which it indicates that the role the applicant held requires a ‘very high level of specialised industry training and skills.’ The author of the letter also commends the applicant’s good character.

55. A second undated employer letter was received by the Tribunal relating to the applicant’s night work as a cleaner. The letter describes the applicant as being ‘an indispensable partner for us.’ While I accept that the applicant is a valued employee, as the role he undertakes with this employer is as a cleaner I am cautious to place much weight on the claims of his indispensability.

56. The Department received two character references. While they speak well of the applicant there is no indication that the authors are aware of the applicant’s offending nor of the wider circumstances.

57. A further character reference from Pastor Su was received by the Tribunal. The Pastor refers to working alongside the applicant. This reference letter appears to acknowledge some degree of offending by the applicant and offers continued support for the applicant.

58. Another letter from Sheng-Tong Chen vouched for the applicant including offering to act as a guarantor, though this was not explained further. Mr Chen appears to be aware of the applicant’s offending, though this is not entirely clear from the letter.

59. Overall, when considering the applicant’s value to the abattoir as a skilled meat slicer and noting the labour shortages facing Australia. I place moderate weight against cancellation.

60. As for the applicant’s character references, these should be taken into consideration alongside the applicant’s claimed remorse. In written comments he states that his actions disgraced Taiwan and brought shame to his family. At the hearing he said that after the incident his family learned about it as did others in Taiwan, including family friends. He said that it is very shameful for him. He said it is shameful to hurt someone else and that it is important to show respect to others. As noted earlier, he claims to have also realised that he should have acted sooner to not play a role in the planned ambush of the victims and regrets the harm he caused.

1. While I accept that many of the applicant’s friends and work colleagues provided a positive character reference none showed a full appreciation of the applicant’s offending and the wider circumstances including the limited reasons for his stay. Taking into consideration the applicant’s stated remorse and the nature and content of the character references, I place moderate weight against the cancellation of the visa.

2. When taking into consideration all of the discretionary elements and the weight given to them, I have concluded that the visa should be cancelled

   DECISION

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

   Denis Dragovic
   Deputy President