Ji (Migration)

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 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).
On behalf of the applicant there have been written submissions to both the Department and Tribunal indicating that the charges had not been proved and asserting that the applicant was innocent. The Tribunal determined to wait for the outcome of the hearing of the charges before convening a hearing.
The Tribunal received information from the Australian Federal Police that on 11 May 2023, on the common assault charge, the applicant was convicted and fined $2,000. On the choking, suffocating and strangling charge, the applicant was convicted. He was sentenced to 4 months imprisonment, wholly suspended for 12 months on entering into a good behaviour bond. It is noted that the starting point for the sentence was 4 months, reduced to 3 months and 13 days imprisonment because of time spent in custody.
In the hearing, the Tribunal put to the applicant pursuant to the procedural requirements of s 359AA of the Act the following. The Tribunal indicated that the allegations in the police Facts Sheet leading to the convictions indicate not insignificant harm towards the victim. The consequence of relying on this information could be to establish that there might at least be an ongoing risk by the applicant to both the victim and the community.
The Tribunal noted to the applicant that it would take in response the various submissions, supporting statements and other materials that have been provided to it, including in the week prior to the hearing, which were as follows:
·Pre-hearing legal submissions.
·Applicant’s Statutory Declaration dated 18 August 2023.
·Statutory Declaration by Haoru Li dated 18 August 2023.
·Statutory Declaration by Fan Yang dated 18 August 2023.
·Statutory Declaration by Naiyang Zhou dated 20 August 2023.
·Applicant’s bail documents.
·Applicant’s Psychologist Report dated 5 May 2023.
·Applicant’s updated Psychologist Report dated 22 May 2023.
·Applicant’s Bridging visa E confirmation.
·Men’s Behaviour Change Program Letter of Attendance dated 10 August 2023.
·Men’s Behaviour Change Program updated Letter of Attendance dated 18 August 2023.
·Character Reference from Katherine Feng.
·Character Reference from Jiawen He.
·Applicant’s Offer of Casual Employment at ANU College of Science.
·Applicant’s Internship Contract Agreement at Mochi Labs Pty Ltd.
The Tribunal noted that it takes from this information that it is claimed that there were some extenuating circumstances around what happened.
The Tribunal notes in particular the following from a statement from the applicant provided before the hearing (unedited):
The incident took place on October 14, 2019. That morning, I made the decision to break up with [Ms A]. Upon hearing this, she reacted by exposing our relationship to my girlfriend in China. As a result, I lost contact with my girlfriend, prompting me to return to [Ms A]’s place to discuss the situation and to use her phone to call my girlfriend. When I was on the phone with my girlfriend, [Ms A] became upset seeing my concern her. She demanded her phone back, which I refused hoping to continue my conversation. This escalated into a conflict, with [Ms A] attempt to forcefully retrieve her phone. In the process, we both lost balance and fell onto the bed. In an effort to prevent further escalation, I tried to restrain [Ms A] on the bed.
It is clearly claimed that there were heightened emotions surrounding the incident because of the breakup and because of the victim informing the applicant’s girlfriend as to the relationship. It is also claimed that there was emotional intensity in the relationship including pressure applied by the victim to the applicant in terms of the relationship. The applicant acknowledges, however, that he did the wrong thing.
Reference is made to the applicant now being 3 years older and more mature. Reference is made to counselling and therapy engaged in by the applicant to reduce the risk of such behaviours in the future. The Tribunal noted supporting statements from the applicant’s current girlfriend and a past girlfriend indicating that what happened is very uncharacteristic of the applicant and that the applicant is not a risk to the community. The Tribunal noted the supporting statement of a friend of the applicant’s indicating that the applicant is not a violent person or that he poses a risk to the community. The Tribunal indicated that it would take into account the view of a psychologist that the applicant has engaged with that he is not of significant risk to the community.
The Tribunal indicated that it would take into account all of the written information provided to the Tribunal but the applicant had the opportunity to provide any further oral comments.
In response, the applicant indicates that he does not have any ongoing intentions to hurt anyone, there have been no incidents in the 3 years since the offence and that this will continue into the future. The representative submitted that the applicant has been granted a Bridging visa E which could potentially be cancelled due to the criminal conviction, demonstrating that the Department does not consider that the applicant is a risk to the community.
Submissions on behalf of the applicant have referred to case law and Departmental policy in terms of interpreting the ground of cancellation in s 116(1)(e)(i).
The Tribunal put to the applicant in the hearing that the criteria relating to the ground for cancellation is met if the applicant ‘may or might be a risk’. The Tribunal put to the applicant that the fact that the applicant has been convicted of domestic violence offences could well readily establish that there may or might be a risk, even if that risk is low. The threshold of risk to establish the criterion is very low although the level of risk could be relevant in consideration of the discretion as to whether the visa ought to be cancelled.
In response, the applicant indicated that he will never let what happened leading to the convictions happen again. The representative conceded that the psychologist indicated that there was not a significant risk, thus not eliminating the risk.
In the hearing, the applicant expressed his considerable remorse for what occurred and that he is truly sorry. He has taken a number of steps to seek to rehabilitate. He indicates that the views as to his non-violent and non-aggressive nature by a former and current partner should be taken into account.
The applicant’s current partner Ms Haoru Li gave evidence in the hearing corroborating her written statement. She indicated that the applicant is a calm and considerate person and does not react in an aggressive or violent way to conflict or arguments.
As indicated in consideration of the discretion below, the Tribunal does accept that the risk of the applicant to either an individual or the community is very low. The Tribunal notes that the applicant’s psychologist determined that the applicant is not of significant risk, which the Tribunal accepts. However, that does not indicate that there is no risk whatsoever.
The fact of the convictions and the circumstances of the offence result in the Tribunal being satisfied that the applicant may or might be a risk to individuals or the community and the ground of cancellation is made out, even though the risk is very low.
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.
Evidence has been provided of the applicant successfully completing his Bachelor of Information Technology and he is currently interning as a software developer for both the College of Science and Mochi Labs. The applicant confirmed in the hearing that his goal, if the cancellation was to be set aside, would be to apply for a s 485 temporary graduate visa as a pathway to seeking permanent residence.
It is clear from information that has been provided and evidence in the hearing that the key hardship to the applicant if the visa was to be cancelled is his inability to progress with work and a pathway to permanent residence in Australia. In the hearing, the applicant indicated that he suffers from social anxiety but is now quite settled in Australia and loves Canberra and wishes to make a life here.
The Tribunal accepts in the context of the applicant’s successful study and current post‑graduate work in Australia that it would be a quite considerable hardship to the applicant if he is not able to progress with work and a pathway to permanent residency as he wishes in Australia. The Tribunal also accepts hardship in the potential severing of his current relationship with Ms Li if the visa remains cancelled and he has to leave the country with limitations on his ability to apply for other visas onshore.
The applicant indicated in the hearing that there are no children affected by the cancellation and he does not fear persecution or significant harm on return to China.
These are the key discretionary factors which the Tribunal weighs. Significantly in the applicant’s favour is the fact that although there is a theoretical risk that the applicant may or might be a risk based on the criminal convictions, that the risk, while not being able to be fully eliminated, is nevertheless very low.
In the applicant’s favour, what the Tribunal accepts is his positive achievement of study during his time in Australia and the applicant is currently working and interning successfully in his chosen field post-study.
Considered against exercising its discretion to cancel the visa is the significant hardship the applicant would face if the visa remains cancelled given his inability to continue working in Australia and progressing on a pathway to permanent residency. The Tribunal also considers some degree of hardship if the visa remains cancelled given that it would cause his current romantic relationship to end.
The Tribunal does not diminish the seriousness of the applicant undertaking harmful actions towards his former partner leading to criminal convictions. The Tribunal, based on all the evidence and character references, determines that the applicant reacted impulsively and out of character given the heightened emotion of the situation. The Tribunal accepts that the applicant has genuine remorse for what happened, sought to remediate the event through therapy, counselling and a behavioural change program. The Tribunal considers that there has already been a significant punishment suffered by the applicant in terms of the fact of the conviction and fine and probably more so the uncertainty he has faced over the last 3 years as to his desired future in Australia if the visa were to remain cancelled.

The Tribunal considers that the hardship to the applicant if the Tribunal were to affirm the delegate’s decision in terms of not being able to progress with work and a pathway to permanent residence is an additional punishment that is not deserved by the applicant in the context of what the Tribunal accepts was an impulsive and uncharacteristic act.
Balancing discretionary factors, the Tribunal determines not to exercise its discretion to cancel the visa.
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 McCulloch
Member

[2023] AATA 3197

8 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies