Lu (Migration)

[2017] AATA 3016

Lu (Migration) [2017] AATA 3016 (21 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Changze Lu

CASE NUMBER:  1725344

DIBP REFERENCE(S):  BCC2017/3229824

MEMBER:Kate Millar

DATE:21 December 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 21 December 2017 at 2:46pm

CATCHWORDS
Migration – Cancellation - Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Visa) - Risk to the health, safety or good order of the community – Applicant may pose risk to particular members of the community – Consideration of discretion – Hardship caused does not outweigh grounds for cancellation – Whether notice of cancellation valid – Defect does not invalidate decision

LEGISLATION
Migration Act 1958, ss 48, 116(1)(e), 119, 127, 157, 371
Migration Regulations 1994, rr 2.12, 2.55

CASES
Gong v Minister for Immigration & Anor [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Lu came to Australia from the People’s Republic of China on a student visa on 2 January 2015 to study engineering.  From shortly after his arrival in Australia, Mr Lu has been charged with various offences.  This has most recently culminated in him being charged with two sets of more serious offences, the first being assault, damage to property and causing serious harm to another and the second being assault, detaining a person to commit an indictable offence and aggravated assault using an offensive weapon.    

2. The charges laid against Mr Lu led to a delegate of the Minister of Immigration and Border Protection cancelling his visa on 16 October 2017. Mr Lu has applied to the Tribunal for review of the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

3. The delegate cancelled the visa under s.116(1)(e) on the basis that Mr Lu 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.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether Mr Lu’s visa should be cancelled.

5. Mr Lu appeared before the Tribunal on 30 November 2017 to give evidence and present arguments, and was represented by his migration agent. The Tribunal also received oral evidence from his friend Mr Yan. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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. These grounds include the ground set out in s.116(1)(e) being 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.

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.

   Validity of the cancellation of Mr Lu’s visa

9. Mr Lu’s representative submitted Mr Lu’s visa was not cancelled as item 2 of Part A of the record of decision states:

   Date of visa grant:     18 October 2017

10. Mr Lu’s visa was granted on 18 October 2014.  It is submitted that this cancelled a visa that was not held by Mr Lu as the date of the visa grant is incorrect, and this means his visa has not, in fact, been cancelled. 

11. The requirements for notification of a decision to cancel are set out in s.127 of the Act. The notification must be in the prescribed way and must:

    ·     Specify the ground for cancellation; and

    ·     State whether the decision is reviewable under Part 5 or Part 7; and

    ·     If the former visa holder has the right to have the decision reviewed under Part 5 or Part 7 of the Act – state:

    o   That the decision can be reviewed;

    o   The time in which the application for review may be made;

    o   Who can apply for the review; and

    o   Where the application for review can be made.

12. Subsection 127(3) states that a failure to give notification of a decision does not affect the validity of the decision. 

13. The notice of intention to cancel Mr Lu’s visa under s.119 of the Act clearly specifies the date of grant as 18 October 2014, which provides Mr Lu with an adequate opportunity to respond prior to a decision being made.

14. The notification of the decision, which is a separate document to the decision record, specifies the visa under consideration is a “class TU subclass 573 Higher Education Sector visa visa [sic] granted on 19 October 2014.” The notification of the decision contains the correct visa grant date. 

15. Mr Lu acknowledged that the only visa he has held is a Subclass 573 visa that was granted on 18 October 2014.  I do not consider there would have been any confusion about the visa under consideration or what has been cancelled.

16. The manner in which a notification is to be given is in r.2.55 of the Migration Regulations 1994. This includes transmitting by email, which occurred in this case. It is not suggested Mr Lu did not receive the notification.

17. The written notification of the cancellation of Mr Lu’s visa contains each item of information required by s.127. Even if it did not, under s.127(3) any defect in the notification does not affect the validity of the decision.

18. As the notice has been given in the prescribed way and meets the requirements of s.127, and the notification itself contains the correct date the visa was granted, I am not satisfied there is any merit in this submission.

    Does the ground for cancellation exist?

19. A visa may be cancelled under s.116(1)(e) if the Minister, or the Tribunal in the place of the Minster, 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.

20. The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014  provides some clarification of the meaning of the provision, and states the purpose of paragraph 116(1)(e) is:

    … firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader public.  Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might on their arrival in Australia) be a risk to the safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.  

21. In Gong v Minister for Immigration & Anor [2016] FCCA 561 Judge Smith states at paragraph 41 that:

    there does not have to be … any direct, solid or certain foundation before the power to cancel a visa can arise.  In other words, it can arise on the possibility that some event occurred in the past.  In this case, the possibility was supported by the laying of charges. 

22. At the time the delegate made the decision to cancel Mr Lu’s visa, he had been convicted of two counts of driving without due care, breach of bail, and two separate interim intervention orders had been made.  Other charges had been laid against him but have not been finalised. 

23. Mr Lu acknowledged that he had previously been charged with breach of bail.  He said he had not been convicted of breaching his bail, and that this was a very minor error that did not have an impact on his bail conditions.  He did not answer if he had ever been subject to an intervention order and answered that he pleaded not guilty to the charges.  

24. The driving without due care was an aggravated offence, as the victim is named in the proceedings, and medical reports were tendered as to the permanent disability of the victim.  I take this to mean that the offence caused serious harm to the victim.[1]  On 11 December 2015 Mr Lu was fined $2,500 and ordered to perform 150 hours of community service, and he was disqualified from driving for 12 months and ordered to pay $200 compensation to the victim.  On the same date, he pleaded guilty to failing to comply with a bail agreement and was placed on an 18 month good behaviour bond.

    [1] Section 45 of the Road Traffic Act 1961 (SA)

25. Mr Lu said in the past he had been charged with offences arising out of a car accident in 2015 and paid compensation to the other party. 

26. He is charged with false imprisonment, assault and damage to property in one set of offences and assault, damage to property and causing serious harm to another in another set of offences. 

27. Mr Lu said he didn’t know what charges had been laid against him but he thought it was being threatening towards his ex-girlfriend.  He said all charges were still pending. 

28. There are two interim intervention orders in which the hearing is adjourned. 

29. The two sets of charges relate to two different people.  The delegate states the offences are alleged to have been committed against two female victims with whom Mr Lu was in a relationship when the alleged offences occurred.  The offences against the first person are said to have been committed on 24 February 2014, 16 March 2017 and 5 June 2017.  The offences against the second person are said to have occurred on 4 September 2017.

30. Mr Lu said that on 22 September 2017 he had successfully applied for home detention bail and had to carry a portable GPS so that police officers and others know where he is 24 hours a day.  Each week he had three hours for grocery shopping.  He said if he wanted to study on any given day he had to report to police 24 hours before the date.  Other conditions were that he could not access drugs or alcohol and was required away from his ex-girlfriend.  Mr Lu said from the time he was granted home detention bail he had complied with all conditions of his bail and stayed at home when he was required to be at home. He said he considered this guaranteed he would stay at home and remain of good behaviour.

31. It was submitted that due to the bail conditions he is not a risk to the health and safety of any individuals.  This argument does not consider the words in the provision, which are not only that he is a risk, but also that he may be a risk.  The bail conditions include that Mr Lu does not approach a named victim and that he is to comply with the terms of the two intervention orders.  This shows it was considered by a court that he may be a risk to the individuals who he is not to approach.  As a result I am satisfied that the presence of Mr Lu in Australia is or may be or would or might be a risk to the health and safety of the alleged victims. 

32. The laying of the charges for alleged offences against two separate females with whom he was in a relationship also show that he may be a risk to the health or safety of a segment of the Australian community, being women with whom he forms a relationship.

33. For these reasons, I am satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), I must then consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

34. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, I have had regard to the relevant circumstances including, but not limited to, matters identified in the Department of Immigration and Border Protection’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

35. At the hearing Mr Lu, through his representative, made it clear that he was not going to answer any questions about the offences for which he had been charged. Nor can he be required to do so under s.371 of the Act. He was also advised by the Tribunal that he was not required to answer if answering the question might incriminate him and also advised that the recording of the hearing could be obtained by police.

36. Mr Lu said he came from a family background where his parents had separated, but who allowed his choice to come to Australia to study.  He came to study Civil Engineering at Adelaide University and he has an excellent study record. 

37. He said he could not continue his studies at Adelaide University because his ex-girlfriend also attended the University and he could not study at the same location.  As a result he transferred to the South Australian Institute of Business and Technology (SAIBT) to continue his studies in civil engineering, and he did not miss any lessons in the period June–August 2017.  After he was charged with the second set of offences he was unable to continue his studies, and applied to study at TAFE SA next year.  While he was waiting for his TAFE course to commence he studied a course run by the National Accreditation Authority for Translators and Interpreters to be an interpreter.  One month after starting this course he was sent to immigration detention. 

38. Since his arrival in Australia, Mr Lu’s father has been diagnosed with cancer.  In his statement, Mr Lu said his parents did not tell him for some time about this diagnosis as they did not want to worry him but that in the end, his mother told him in September 2016.  Mr Lu states he felt helpless and wanted to leave Australia to be with his father but his parents and his friend Mr Yan in Australia made sure his finished his studies for the semester first.  He has since travelled to China twice to see his father, and states he was upset about returning to Australia as he was worried about his father.  He states he has done well to pass all but one of his subjects up to June 2017 given everything that was happening in his life. 

39. Mr Lu provided a statutory declaration from his friend Mr Yan.  Mr Yan states he has known Mr Lu for two years and Mr Lu has been good to his wife and children.  On the first occasion Mr Lu was released on bail Mr Yan was his guarantor and he lived with Mr Yan and his wife and children.  Mr Yan states he would not have allowed this to occur if he thought Mr Lu would be a risk to his family.  On the second occasion Mr Lu was released on bail, he could not stay with Mr Yan, and Mr Yan states this is because his wife’s family were coming to Australia and that it had nothing to do with the charges.  Mr Yan says he arranged for Mr Lu to stay with another friend. 

40. Mr Yan states he owns a restaurant and that the family has employed Mr Lu on an ongoing basis since June 2016 when his studies allow and that he is a good worker.  Mr Yan said he was surprised to hear about the charges because Mr Lu is a good boy, and he believes Mr Lu when he says he did not do the things alleged against him. 

    The purpose of the visa holder’s travel and stay in Australia

41. Mr Lu came to Australia on a Higher Education Sector visa to undertake studies towards a Bachelor of Engineering.  He states he could not continue to study at Adelaide University due to his bail conditions, which prevented him approaching a former girlfriend who also studied at Adelaide University.  As a result he transferred to a Diploma of Engineering course run by SAIBT in June 2017 with the intention of going into a Bachelor of Engineering at the University of South Australia.  He states he was awarded 54 exemptions for the 74 unit Diploma.  He states this would have allowed him to complete the Diploma after approximately six months of full time study.  He states he was unable to continue with the course from September 2017 due to the second criminal charges as a result of the time he spent in custody and his bail conditions.

42. Mr Lu provided a letter from SAIBT dated 18 September 2017.  This letter states he commenced a Diploma of Engineering in June 2017 with the aim of transitioning to the Bachelor of Engineering program.  It confirms the subject exemptions he received, and states that as he commenced the course one week late he was restricted to a 75% study load.  Up to the end of August, he had a 100% attendance rate but did not attend any classes after this date.

43. Mr Lu states he made a lot of enquiries about courses he could study in Australia and has received a letter of offer from TAFE at Tonsley to study an Associate Degree in Civil and Structural Engineering (Site Management) with the aim of transitioning to a Bachelor of Civil Engineering at Flinders University.  He provided a letter of offer from TAFE for this course.  Mr Lu states he could not continue his studies at SAIBT because of his bail conditions and time spent in custody.

44. After ceasing study in September 2017, he started an Advanced Diploma of Translating at the Australian Institute of Translation and Interpretation. 

45. I accept that Mr Lu has studied since arriving in Australia and accept his evidence that he has, in general, has been successful in his study, which is consistent with the purpose of his travel to Australia.  He has persisted with his studies in circumstances where he has been charged with criminal offences and was worried about his father who has been unwell.  Mr Lu does not mention, but I also take into account, that he studied despite other charges and a conviction for a traffic offence which resulted in a sentence that included 150 hours of community service.

46. The current purpose of him remaining in Australia, as stated by Mr Lu, is to address the criminal charges against him. 

    Whether the visa holder has a compelling need to travel to or remain in Australia

47. Mr Lu said he needs to remain in Australia due to the pending criminal charges.  I do not consider this a reason not to cancel his visa as other types of visa, such as a criminal justice visa (s.156 of the Act) or a criminal justice stay visa (s.157 of the Act) may be used for this purpose. 

    The extent of compliance with visa conditions

48. Mr Lu changed his course of study, which brings into question whether he continued to meet condition 8516, which depends on the course of study.  However there is insufficient evidence before me to show there has been a breach of any of the conditions of his visa. On the information before me I find he has complied with the conditions of his visa.

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

49. Mr Lu said his family has spent in the order of $130,000 on his education and he has spent three years studying. He states he has told his parents about the charges and they are very disappointed with him.  His father’s health has taken a turn for the worse and that he feels responsible for this, and state he could not forgive himself if his father’s health continues to deteriorate.    He has not told his parents that his visa has been cancelled and he is currently in immigration detention.  He states he is concerned about what it would mean for his parents, and in particular his father’s health, if he remains in detention pending the outcome of the criminal charges or is deported to China.   

50. If he is deported, he states it will be hard for him to find a good job and support himself and his family in the future.

51. I accept that the cancellation of his visa would cause Mr Lu and his family hardship.

    The circumstances in which ground of cancellation arose  

52. Mr Lu acknowledges he has been charged with the offences against two former girlfriends but states he has been advised by his solicitor not to provide further information or make any comment about these matters as any comments could be used against him.  He states he denies the allegations and has pleaded not guilty for this reason. 

1. The circumstances that are apparent on the information before me is that there are criminal charges laid against Mr Lu.  These charges have not yet been determined and there has been no finding as to Mr Lu’s culpability or otherwise for the offences. 

   The past and present conduct of the visa holder towards the department

2. The delegate noted that Mr Lu did not respond to the notice of intention to consider cancellation of his visa.  His representative submits a response was prepared and sent, however his solicitor sent it to the wrong email address. 

3. There is nothing further to suggest Mr Lu has not co-operated with the Department. 

   Whether there are mandatory legal consequences of the cancellation

4. If Mr Lu’s visa is cancelled, there are only certain types of visa he can apply for from within the migration zone (s.48 of the Act and r.2.12 of the Regulations).  Mr Lu is currently in immigration detention, and if his visa is cancelled he may only apply for another visa of a type permitted, or be granted another visa pending the outcome of the criminal proceedings.

5. If there is nothing that compels Mr Lu to remain in Australia, he may return to China. 

   Whether there would be consequential cancellations under s.140

6. As there are no secondary visa applicants, no consequential cancellations arise. 

   Whether any international obligations would be breached as a result of the cancellation

7. Mr Lu does not have any children.  He is able to return to China, and has done so twice since his arrival in Australia to be with his father.  This being the case, there is nothing before me to indicate any international obligations would be breached as a result of the cancellation. 

   Conclusion

8. Mr Lu has studied since his arrival in Australia and has made progress towards his aim of becoming an engineer.  Where possible, he has continued to study despite the charges against him and his father’s cancer diagnosis. 

9. While I am very mindful that the charges against him have not been determined, Mr Lu says he has been unable to continue with his studies at two different institutions due to the charges against him, and has had to find alternate pathways to study.  This is a temporary visa to study in Australia, and there are no international obligations that would be breached if Mr Lu returned to China.

10. I am also acutely aware of the protection of the community and the nature of the test I am to apply in determining whether a ground exists to cancel Mr Lu’s visa.  To be established, this ground requires that there may be a risk to the health and safety of individuals or a segment of the community.  This has been established by the laying of charges, and the conditions of Mr Lu’s home detention.  Mr Lu was also convicted of a traffic offence that caused injury to a person only shortly after he arrived in Australia. 

11. I am not satisfied, having considered all of the material before me, that Mr Lu’s continued and generally successful study, the hardship he and his family will face if his visa is cancelled, his compliance with home detention bail conditions, or any of the other factors raised by Mr Lu outweigh the risk that he may be to the health and safety of individual or a segment of the Australian community.  

12. Having considered the circumstances as a whole, I have concluded that the visa should be cancelled.

    DECISION

13. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Kate Millar
    Member