Ji (Migration) - [2023] AATA 3197

Ji (Migration) [2023] AATA 3197 (8 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Denghu Ji
CASE NUMBER:  2002357
HOME AFFAIRS REFERENCE(S):          BCC2019/5630965
MEMBER:David McCulloch
DATE:8 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 08 September 2023 at 9:14am
CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to safety of individual – conviction for assault with suspended sentence and fines – very low risk exists – discretion to cancel visa – circumstances of offending – impulsive and uncharacteristic reaction to emotional interaction – genuine remorse, therapy, counselling and behavioural change program – support of current partner – continuing study and internship, with plans to apply for further visa as pathway to permanent residence – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(i), 359AA
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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 3 February 2020 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 (the Act).
The applicant is a citizen of China. The visa that has been cancelled was granted on 22 January 2018 and is due to expire on 30 August 2022.
The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant’s presence in Australia may pose a risk to a segment of the Australian community, and that his presence might be a risk to the safety of an individual, namely [Ms A]. 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 appeared before the Tribunal on 28 August 2023 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence from Ms Haoru Li, the applicant’s current partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
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). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ji (Migration)

Details

AGLC: Ji (Migration) [2023] AATA 3197
Case: [2023] AATA 3197
Decision Date: 8 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of Mr Ji. The cancellation was based on the ground that Mr Ji's presence in Australia posed a risk to the safety of an individual, pursuant to section 116(1)(e) of the Migration Act 1958 (Cth). This followed Mr Ji's conviction for common assault and choking, suffocating, or strangling another person, for which he received a suspended sentence and fines.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) was made out, and if so, whether to exercise its discretion to cancel the visa. The Tribunal considered the meaning of "risk to the health, safety or good order of the Australian community or a segment of the Australian community" and "risk to the health or safety of an individual or individuals," noting that a possibility of an event occurring is sufficient for the power to arise. The Tribunal also considered the circumstances of the offending, including the allegations of an impulsive and uncharacteristic reaction to an emotional interaction, Mr Ji's genuine remorse, his engagement in therapy and a behaviour change program, and the support of his current partner.

The Tribunal found that the ground for cancellation under section 116(1)(e) was satisfied. However, in exercising its discretion, the Tribunal concluded that the risk posed by Mr Ji to the community or any individual was very low. This conclusion was based on the evidence presented, including statements of character, Mr Ji's remedial actions, and his demonstrated maturity. The Tribunal determined that the offending was a reactionary, one-off event that was out of character.

Consequently, the Tribunal set aside the decision to cancel Mr Ji's visa and substituted a decision not to cancel his Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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). 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)(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 to 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]. 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. The Department file contains police documents relating to one charge of Common Assault, and one charge of Chokes, Suffocates, Strangles Another Person, that were laid against the applicant relating to events that occurred on Monday 14 October 2019. The Australian Federal Police Facts Sheet outlines the allegations against the applicant relating to the charges. The allegations made against the applicant are that in the early morning of Monday 14 October 2019 the alleged victim and the defendant exchanged text messages via the ‘WeChat’ app. As a result of these messages the applicant met with the alleged victim to speak about their relationship. The applicant tried to initiate sex with the alleged victim, however, the alleged victim refused the applicant’s advances. After the applicant left, the alleged victim made an immediate complaint to her ANU (Australian National University) College Counsellor. The alleged victim then contacted a person whom she believed was also in a romantic relationship with the applicant and told that person ‘what the situation was’, namely that they were both in a romantic relationship with the applicant. The applicant then returned to the premises of the alleged victim and a struggle ensued over the alleged victim’s phone. The Australian Federal Police allege that during this struggle the applicant grabbed at the alleged victim’s right hand with force, as she reached for her phone, causing her pain and discomfort (Common Assault). The applicant then stood over the alleged victim and placed his hands around the front of the alleged victim’s neck, applying pressure to cause discomfort. The applicant then increased the pressure around the alleged victim’s neck preventing her from breathing and causing her to fear for her life (Chokes, Suffocates, Strangles Another Person).

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.David McCullochMember

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) 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 the Migration Regulations 1994 that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 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. As indicated above, a significant discretionary factor is the level of the risk of the applicant to the victim and/or the community. All the evidence that has been provided, in terms of what happened on the day of the offence and supporting statements and evidence of the applicant’s character from current and former partners and a friend, persuades the Tribunal that what happened leading to the convictions was a reactionary one‑off event that was out of character for the applicant. The Tribunal also accepts the applicant now has greater maturity. The Tribunal accepts that the applicant has taken responsibility for the incident and is genuinely remorseful. The Tribunal accepts significant remedial action by the applicant in terms of what occurred in seeking therapy and psychological support, including undertaking a men’s behaviour change program. The Tribunal considers that the risk of the applicant to the community or an individual or individuals is very low. This is a factor that weighs against exercising the discretion to cancel the visa.