Liu (Migration)

[2018] AATA 5501

Liu (Migration) [2018] AATA 5501 (19 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sichen Liu

CASE NUMBER:  1817290

HOME AFFAIRS REFERENCE(S):           BCC2018/1237938

MEMBER:Sean Baker

DATE:19 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 November 2018 at 11:08am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – criminal charges – serving significant jail term for violent crimes – consideration of discretion – intention to study – degree of hardship – convicted and sentenced to a significant jail term for an offence of violence – decision under review affirmed

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 4 June 2018 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).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant had been charged with several serious and violent crimes. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. Having studied in Australia and lived here for 5 years, the applicant indicated he did not require the services of an interpreter. I found that the applicant was able to understand the proceedings and explain to me everything he wished to. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

4. 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

5. 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.

   Certificate

6. On the department file is a s.375A certificate. I find the certificate to be valid because the certificate complies with the requirements in s.375A(1) and identifies a public interest reason, being confidential information relating to third parties.

7. At the hearing I explained the certificate and my view that the certificate was valid and asked the applicant if he wished to comment on the certificate or the information. He indicated he did not.

8. The gist of the information covered was put to the applicant during the hearing pursuant to s.359AA.

   Does the ground for cancellation exist?

9. 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].

10. 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.

11. I explained the above to the applicant. I explained that he had a privilege against self-incrimination. I then put to him the gist of the information covered by the certificate.

12. I explained that there was information in the form of a summary of charges which alleged that on 4 February 2018 the applicant had approached an individual at the Box Hill Centro Shopping Centre. It is alleged the visa holder produced a knife and punched the alleged victim in the face before demanding money from them. The visa holder is alleged to have taken money and a drivers licence from the wallet of the alleged victim and demanded they give the visa holder $2000. It is alleged the victim suffered from swelling and bruising to their face as well as dizziness. On 13 February 2018 the visa holder was arrested by Victoria Police in relation to the above alleged offence at which time it is alleged a black fold out knife and the driver’s licence belonging to the alleged victim were located in his possession.

13. I explained that the information may be relevant because it may indicate 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, and that the consequence of this being relied on is that, subject to any comment or response he made, this information would be the reason, or a part of the reason for affirming the decision that is under review.

14. A second set of information was put to the applicant, that there was a preliminary brief on the file in relation to an incident on 5 January 2018 where it was alleged the applicant had threatened to assault a group if they helped a victim of an attack by the applicant’s girlfriend, as a consequence of which he was charged and bailed on a second charge of intentionally cause injury.

15. I explained that the information may be relevant because it may indicate 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, and that the consequence of this being relied on is that, subject to any comment or response he made, this information would be the reason, or a part of the reason for affirming the decision that is under review.

16. The applicant indicated that he wished to respond to the information immediately. He explained that in relation to the first incident he had had an argument with a person – they had had a personal issue before and they had talked in the internet café – they just talked and the applicant had some friends with him. The other person had made the applicant angry and the applicant punched him. The applicant said he had not taken any money from the person but he had taken his driver’s licence. He said about a week later the police arrested him and searched him and found a pocket knife and cash, maybe $4000, but he had proven that the cash is legally money from his part time job and the police had withdrawn some charges.

17. I noted that the information I had was that the applicant had been charged with the charges set out in the decision record, that is:

    ·     Armed Robbery

    ·     Intentionally Cause Injury

    ·     Blackmail

    ·     Affray (Crimes Act)

    ·     Assault in Company

    ·     Possess Controlled Weapon Without Excuse

    ·     Deal Property Suspected Proceeds of Crime

18. In relation to the 4 February 2018 event, and was charged with a further count of intentionally cause injury on 13 April 2018 in relation to the second incident discussed.

19. The applicant said in relation to the February incident that he had just slapped the other person 2 or 3 times and he did not rob him of any money and he didn’t know the police were going to charge him with robbery for the driver’s licence.

20. I asked if he had anything to say about the second charge. He said to be honest the police had charged him because he stayed around with the girls but he had not got involved, he was not in charge and they could not put any evidence. The police had told him he had another court date for that case but that should have been 25 September, but nothing happened on that date. He said he thought the police withdrew the charge, because he did nothing to be honest.

21. I asked if he was in prison as the result of a sentence and he said he was. He said he had 4 months for the bottom and 2 years for the top. He said that he may be released soon but he was not sure. He said he was concerned about this because if he got out of jail, immigration would put him in a detention centre. He said he had spoken with his immigration agent, and they are trying to help him apply for a bridging visa but he had heard that a Department officer refused him a bridging visa. He also said that the judge had revoked his bail and that was why they put him in jail. I asked why his bail had been revoked and he said because he had been immigration detained the judge thought the applicant might be removed to China and revoked his bail on that basis.

22. I asked if he could qualify what he was in jail for and confirmed he had been convicted, he said of only two offences; assault with company and Robbery and for those two charges he was given 2 years in jail. I noted that this might be considered a significant jail term. I asked if he had outstanding charges. He said just in relation to the girl’s assault, but the court date had passed so he thought it had been dropped. I asked if he had spoken with his criminal lawyer about this and he said he had but they were not clear about this.

23. I noted the charges in the decision record and asked if he was saying he had been convicted of armed robbery and assault in company and he said that was right. I noted that these are reasonably serious and violent offences, for which he appeared to have been given a lengthy jail term, and this might lead me to the view that the ground for cancellation here was made out. He responded by saying that he had done something wrong but the other person had lied to police that the applicant was trying to rob him. Nevertheless, he agreed that he had pled guilty to the charges of armed robbery and assault in company. He asked for further time to provide some information about the offences and the outcome and I agreed to provide this. However, the applicant did not provide any information by the agreed date.

24. Having carefully considered the material before me I find that the ground is made out. The applicant has been charged with a number of violent crimes, as above, and has been found guilty of armed robbery and assault in company, which I find to be significant and violent crimes. For these crimes he has been given what I find is a significant jail term of two years. He has not provided any information that the second charge of intentionally cause injury has been dropped as he claimed, but even if it is accepted that it has been, the evidence before me tends to indicate that the applicant has engaged in violent criminal activity in the past. As above, the ground may be made out where there is only the possibility of past events having occurred. In this case the applicant has been convicted and jailed for offences of violence. I consider that this criminal history indicates a level of risk which meets the threshold imposed by the criterion. I find that the applicant having been convicted of violent offences and having been given a jail term establishes 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. 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

26. 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’.

27. The applicant did not provide a response to the Department’s Notice of Intention to Consider Cancellation letter, other than to request the cancellation decision be postponed until after a criminal case conference to be held on 24 May 2018. The delegate’s decision was made after this date.

    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

28. I asked the applicant what his purpose was in coming to Australia. He said it was to study. I asked when he had last studied and he said it was this year but he was not sure about the dates – he thought it was in April before the Department sent the email to him. He said he had completed an English course and a Diploma of Commerce. He said that he had paid half the fees for his Bachelor but that he had then had to pay money to his criminal lawyer. He said that he intended to resume his study after being released from prison and he said he wanted to finish his Bachelor.

29. I accept that the applicant has completed an English and Diploma course, which tends to indicate the applicant’s intention in coming to and remaining in Australia was to study as claimed. He claims that he would have paid for his Bachelor but for the criminal matters. He claims that he wishes to resume his studies on release from jail. I have some doubts about these claims but am willing to accept the applicant’s characterisation of these things and I accept that the applicant’s purpose in coming to Australia was to study and I give this some weight in favour of the visa not being cancelled.

    the extent of compliance with visa conditions

30. The applicant said that he had complied with his visa conditions. I note that his confirmation of enrolment was cancelled on 8 May 2018. Given that his visa was cancelled less than a month after this, and his claim above which I have accepted that he was paying for his criminal lawyer, the breach of condition 8202 here is for a very short period and may be explained by his need to fund his criminal lawyer. Generally the breach of a condition would give some weight to the visa being cancelled. Given the brief nature of the breach and the reason for it which I have accepted, and with no further evidence before me that the applicant has been non-compliant with any other visa conditions, I give this factor no weight towards the visa being cancelled.

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

31. I asked the applicant what hardship he or his family may suffer if the visa remained cancelled. The applicant said that it would be a huge problem for him and his family. I asked in what way and he said for financial reasons as they had spent so much on his university costs but he had not finished his study. He also said later in the hearing that he had finished almost 50% of his university course, he should have only 8-10 months to finish his course. He said that if he was removed after his jail term it would be tough for him to go back to China as he did not have the degree and he had spent so much money in Australia, he could not do anything in his country.

32. I accept that if the visa remains cancelled there would be financial and other hardship to the applicant and his family. I give this some weight in favour of the visa not being cancelled.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

33. In response to this factor the applicant said that he and his family had spent a great deal of money on his education and he needed to finish his university course as he did not want to have wasted his time in Australia over the past 5 years. He said that for his criminal case he had definitely told the truth.

34. The visa was cancelled on the basis of the applicant having been charged in relation to two violent incidents. The applicant has been jailed as a result, he tells me, of being found guilty of several of these charges in relation to the first incident. He was sentenced, he says, to two years jail as the top of his sentence, a significant period of time, indicating the seriousness of these offences. The offences of which he was convicted were offences of violence against an individual in the community. The applicant has not indicated that these circumstances were beyond his control, nor that they were because of a relationship breakdown.

35. As at the time of the decision, it is unclear whether the applicant remains the subject of the second charge of intentionally cause injury, so I have not taken this into account one way or the other.

36. What is before me on the applicant’s evidence is that he was convicted and sentenced to a significant jail term for an offence of violence. Where a person is in Australia on a temporary visa, the Australian community has a legitimate expectation that that person will behave in a lawful manner, but more fundamentally, that that person will not cause harm to the Australian community or a member of the community. Here there is no indication of any extenuating circumstances in the applicant’s behaviour.  Whilst the applicant indicated he regretted the case and what he did before I do not consider this a particularly clear or fulsome expression of contrition, nor does it indicate to me any insight into his offending. Given these factors, I have grave concerns about whether the applicant would remain a risk to 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. Therefore, I give this factor very significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department

37. The applicant has been compliant and has engaged with the Department. I give this little weight in favour of the visa not being cancelled.

    whether there would be consequential cancellations under s.140

38. The applicant indicated that there were no other people attached to his visa. This factor is therefore not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

39. If the applicant was released from prison and did not hold this visa he would be placed in immigration detention and returned to China. At the hearing I discussed this with the applicant and he said that he would attempt to regain his visa but that if he could not do so he would return to China but not now. I asked what he meant by this and he said that he just wanted to get his Bachelor degree and then go back to China. He said he had finished almost 50% of his university course, he should have only 8-10 months to finish his course. He said that if he was removed after his jail term it would be tough for him to go back to China as he did not have the degree and he had spent so much money in Australia, he could not do anything in his country.

1. I accept that the applicant does not wish to return to China without his degree. However, he has indicated that he would be willing to return to China. I assess the chance of him being detained indefinitely as low. I accept that he may be detained for a period prior to any removal if the visa remains cancelled and that he would only be able to apply for a limited range of visas, and I give this some weight towards the visa not being cancelled.

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

2. I asked the applicant if there was any reason he could not return to China and he did not indicate that there was. He said that it was his first time in jail and he did not know why the police charged him. He said he regretted the case and what he did before.

3. There is no indication from the applicant or any other material to indicate that any international obligations would be breached if the visa remained cancelled. I therefore place no weight on this consideration.

   if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

4. Not relevant.

   any other relevant matters

5. The applicant explained that he had been in Australia since 2013 and spent five years here. He had many friends here and he stayed with his aunty and younger cousin in Australia. He said he wished to stay here. He said some friends and family members could prove he was not a risky person for the Australian community. The applicant said that he was not sure when he was liable for parole but he thought it may be soon.

6. Having carefully considered this I give this little weight towards the visa not being cancelled. This is because the applicant entered Australia on a temporary visa, with the expressed intention to return to his country. Whilst I accept that his aunt and cousin and friends may be sad if he is not able to remain longer there is nothing before me that this would cause them, or the applicant; any undue hardship.

7. The applicant said that he would try and provide information that the second charge of intentionally cause injury had been dropped and letters from his friends and family to prove he was not a risky person to the Australian community. I gave him time to provide me with this information and anything else he considered relevant. He did not provide anything by the date agreed or afterwards.

8. In this case the applicant has committed, been convicted and is serving a prison term for crimes of violence committed towards someone else in the Australian community. There is no indication of any extenuating circumstance for this act. Given that this was the basis for the ground of cancellation, and my reasoning above under the ‘circumstances’ heading above, I have given this factor very significant weight towards the visa being cancelled. Whilst there are a large number of factors above which would suggest the visa not be cancelled, ultimately I find these do not outweigh my findings on the circumstances surrounding the ground for cancellation.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Sean Baker
    Member