Huang (Migration)

[2018] AATA 4712

Huang (Migration) [2018] AATA 4712 (11 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fei-Lung Huang

CASE NUMBER:  1805069

HOME AFFAIRS REFERENCE(S):           BCC2017/2360383

MEMBER:Mary Urquhart

DATE:11 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 11 October 2018 at 3:18pm

CATCHWORDS
MIGRATION – Cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to Australian community – violent offences – family disputes – charges withdrawn – guilty of possession – reason for offence – decision under review set aside


LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
Tien 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 20 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Taiwan. He first arrived in Australia on 20 March 2013 as a holder of a Working Holiday (subclass 417) visa granted on 22 January 2013. On 18 October 2013 and 3 March 2015, he was granted subsequent Working Holiday (subclass 417) and a Vocational Education and Training Sector (subclass 572) visa. On 28 June 2017, the applicant applied for a Student (subclass 500) visa and was granted a Bridging A (subclass 010) in association with it. Departmental records indicate that on 17 October 2017 the application for the Student visa was refused. The applicant’s Student visa application was refused on the basis that the applicant had not declared his pending charges in the visa application and so provided misleading information to the Department. The Tribunal notes the applicant has sought a review of this matter and that such review is yet to be determined.

3. On 30 August 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116 (1) (e) of the Act. The applicant provided a written response to the NOICC on 4 September 2017. His visa was cancelled.

4. The delegate cancelled the visa under s.116 (1)(e)(ii) on the basis that the applicant was charged with violent offences and the delegate was satisfied there was sufficient evidence to satisfy that the applicant’s presence in Australia may pose a risk to the safety of an individual, namely the victim of his violent assault.

5. The applicant sought a review of the delegate's decision on 30 October 2017.

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

7. The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

   POST HEARING SUBMISSION

8. On 4 October 2018 the applicant submitted 3 photocopied photographs. And on 5 October the applicant submitted Court documents from the Magistrates Court of Victoria at Melbourne.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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) (e) (ii). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s.116 (1) (e) - risk to Australian community or individual

11. A visa may be cancelled under s.116 (1) (e) if the Minister 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; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

12. 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.

13. On 11 July 2017, the Department was informed by Victoria Police that on 19 June 2017 the applicant unlawfully assaulted Zheng Wang with a weapon namely an extendable baton causing injury to her. The visa holder was charged with the following offences:

    ·     Unlawful assault, possess prohibited weapon without exemption, assault with weapon, intentionally cause injury, recklessly cause injury.

14. At the hearing the applicant claimed it was he who was the victim of an assault by Ms Wang not him assaulting her. He said he arrived home to find his house in a mess and Ms Wang distraught; he said he thought she might commit suicide and so he telephoned the police. His evidence is that when the police arrived Ms Wang told them he had assaulted her with the baton.

15. The applicant gave evidence that he was summonsed to appear at the Melbourne Magistrates Court. He said he pleaded guilty to the charge of possess prohibited weapon, (an extendable baton) without exemption. The applicant was also charged that he did without lawful excuse intentionally cause injury to Zheng Wang and did recklessly cause injury Zheng Wang with a weapon namely an extendable baton. The applicant gave evidence that these further two charges were withdrawn. In support of this evidence the applicant has provided the two court notices of the Magistrates Court of Victoria at Melbourne, that of intentionally cause injury and recklessly cause injury. The documents confirm that both charges were withdrawn on 5 October 2018

16. The Tribunal notes the visa was cancelled under s.116 (1)(e)(ii) on the basis that the applicant was charged with violent offences and the delegate was satisfied there was sufficient evidence to satisfy that the applicant’s presence in Australia may pose a risk to the safety of an individual, namely the victim of his violent assault. The applicant did not dispute the grounds for cancellation and provided the department with reasons why his visa should not be cancelled. Since then, the applicant has been before the Magistrates Court and the violent offences charges regarding assault have been withdrawn.

17. However the applicant was found guilty of possess prohibited weapon without exemption. He was released on an undertaking to be of good behaviour with conditions. The Court, without conviction adjourned the further hearing of the case to 10/4/2019 at 9.30.

18. The applicant gave evidence that in August 2017 he took out an Intervention order against Ms Wang. He submitted a Family Violence Intervention Order against Zheng Wang issued on 24 August 2016 and was valid until 24 August 2017. He said he had been assaulted on the face. Asked if he had photos of injuries to his face he replied that they were “at home”. The applicant subsequently produced the documents to the Tribunal in a post hearing submission. The Tribunal notes the Intervention Order submitted by the applicant indicates that Ms Wang did not attend the hearing when the order against her was made in august 2017.

19. Asked if his former partner had ever taken out an Intervention Order against him, he replied she did. He indicated that on one occasion he attended the “Family Court” with Ms Wang to say that the issue was just a family matter and that they were now friends.

20. The Tribunal accepts that at times both the applicant and his former wife took out orders against each other resulting from family disputes. The Tribunal notes the evidence of the applicant that the parties are on speaking terms and are organising documents for a divorce.

21. The applicant pleaded guilty to the charge of possess prohibited weapon. The Tribunal has independent evidence before it that the applicant has been found guilty of possess prohibited weapon. Asked about his possession of the weapon, the applicant said he bought it in Taiwan; he said he then travelled with it to Australia in 2005 when he arrived. He said he had brought it with him for self-defence purposes as his ex-wife told him it was not safe in Melbourne. He said he had heard a lot of home invasions were taking place. The Tribunal notes the weapon has been confiscated.

22. There is no evidence or suggestion that any other incident has taken place since the incident that led to the applicant’s conviction and there is no evidence of any harm that the applicant had perpetrated on the sponsor or any other person before the Tribunal. The Tribunal finds the applicant’s evidence as to why he had the weapon to be plausible.

23. The Tribunal has formed the view that the applicant's involvement in the criminal process, the convictions and the subsequent cancellation of his visa, has had a significant effect upon the applicant and would ensure that the same conduct does not occur again.

24. In summary the Tribunal records that there are no convictions recorded against the applicant for assault. There is no evidence before the Tribunal that the applicant's presence in Australia poses a risk to any other individual or individuals. The Tribunal is not satisfied that the presence of the applicant 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; or the health or safety of an individual or individuals.

25. The Tribunal is not satisfied that the ground for cancellation in s.116 (1) (e) exists. It follows that the power to cancel the applicant's visa does not arise.

26. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Mary Urquhart
    Member