Qian (Migration)

[2021] AATA 1171

Qian (Migration) [2021] AATA 1171 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhaozhuang Qian

CASE NUMBER:  1929172

HOME AFFAIRS REFERENCE(S):          BCC2019/4036563

MEMBER:Antoinette Younes

DATE:22 January 2021

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 22 January 2021 at 4:43 pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – criminal offence – applicant has no history of offending – applicant is not a risk to the Australian community or any individual in the community – ground for cancellation in s.116(1)(e) doesn’t exist – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116,119

CASES
Gong v MIBP [2016] FCCA 561
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
QKVH v Minister for Home Affairs [2018] AATA 1855

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 October 2019 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 has been charged with an offence. 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 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The Tribunal received post-hearing submissions on 8 December 2020.  The applicant was sentenced on 18 December 2020.  Sentencing remarks were provided to the Tribunal on 21^st January 2021.

4. 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

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.

   Does the ground for cancellation exist?

6. 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].

7. In support of the application for review, the applicant provided a copy of the delegate’s decision record.  In the course of the hearing, the Tribunal discussed with the applicant relevant information contained in that decision record, namely that the applicant was allegedly involved in an armed robbery committed against two persons who were previously known to him and as a result of this alleged involvement, he was charged by NSW Police on 8 August 2019 with the offence of Robbery armed with offensive weapon (Crimes Act 1990). 

   NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC)

8. On 4 September 2019, the Department sent to the applicant a NOITCC to which he responded on various dates.  Essentially, the applicant did not agree that he ground for cancellation exists and he presented his own version of events.

   SUBSEQUENT EVENTS

9. The applicant has made submissions and provided documents in support showing that since the cancellation of the visa, the Court has found that the charges relating to the offences of Robbery armed with offensive weapon-SI(Certified) and Robbery in company-SI(Certified) were ‘not appropriate’  and were consequently dropped.  However, the applicant entered of plea of guilty in relation to the offence of ‘Stalk/intimidate intend fear physical etc harm (personal)-T2(Certified)’.  The matter was listed for sentencing on 18 December 2020 and on that date, the applicant’s lawyer advised the Tribunal that the outcome of the sentence hearing at the District Court, is that the applicant was not convicted of the offense for which he had admitted liability and that instead, he was put on a two-year good behaviour from the 18^th of December 2020.

10. The applicant provided to the Tribunal the AGREED FACTS signed on 17 November 2020.   During the hearing, the Tribunal referred to the AGREED FACTS noting that:

    Around the time of the incident, the offender (the applicant) had a newly formed acquaintance who invited him to come to his house for a meal with some others.  The offender did not know this person well so he asked his friend, the co-offender Mr Enming Chen, to accompany him.  The dinner occurred on the evening of 16 May 2019, during which time the acquaintance told the offender he was going to collect money from someone who owed a debt to him, and he needed some help in doing that.  The offender genuinely believed the acquaintance was owed money.  The offender understood that some form of intimidation would be used by the group on this person in order to get the money and there is a possibility that weapons could be used.  Based on this understanding, the offender agreed to become involved.  It is at this point the offender became part of a joint criminal enterprise to intimidate the person nominated by his acquaintance, which ultimately was Jerry.  The offender was not part of an agreement to actually use weapons, he was not aware that knives would be used, but he realised the possibility that weapons could be used.[1]

    [1] Paragraph 9 of AGREED FACTS

11. The Tribunal explained to the applicant that the Tribunal had no role in making findings relating to the charges, including facts, guilt or innocence, as those are matters for the Courts.  The Tribunal indicated that as such the Tribunal considers it appropriate to rely on the AGREED FACTS.  The Tribunal indicated that it takes the view that violence is very serious and that based on the AGREED FACTS, the Tribunal could find that the ground for cancellation arises.  The Tribunal noted that although the visa was cancelled based on a different charge, the fact that the new charge relates to the same events means that the power to cancel has not changed. 

12. The Tribunal is of the view that it is clear that if a decision has been made to cancel a visa under s.116, it is not open to the Tribunal on review to consider whether the visa might have been cancelled under a different power, such as s.109, and conversely, if a visa has been cancelled under s.109, it would not be open to the Tribunal on review to consider whether it might have been cancelled under s 116. On the other hand, the Tribunal is not limited to the particular issues that the delegate considered.[2] Thus, it has been held that on the review of a decision to cancel a visa under s.116(1)(b) for breach of condition 8202(3)(a) (80% attendance requirement) it was open to the Tribunal to affirm the decision on the basis of breach of condition 8202(3)(b) (academic result). The Court rejected the contention that the Tribunal was limited to the issues that had been raised in the s.119 notice of proposed cancellation.[3]

    [2] SZBEL v MIMIA (2006) 228 CLR 152.

    [3] Zhang v MIAC [2007] FMCA 1855 at [16]–[18].

13. The Tribunal is satisfied that as the new charge relates to the same circumstances, it is open to the Tribunal to make findings that the ground for cancellation under s.116(1)(e) exists. The question is whether the ground for cancellation exists in this case.

14. In post-hearing submissions, Ms Germov[4], referred to the “risk” required to enliven s.116(1)(e) and noted that the Act does not qualify or quantify the risk as being real, or significant, or substantial. Ms Germov noted:

    [4] Barrister and registered migration agent who was briefed by the applicant to prepare the submissions, dated 8 December 2020.

    ·Prior to enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014, the provision stated that the presence of the visa holder in Australia “is or would be a risk to the health, safety or good order of the Australian community”.  The legislative intent is summarised at [13] of the Schedule 2 to Explanatory Memorandum as follows:

    The purpose of this amendment 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 Australian 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 upon their arrival in Australia) be a risk to the health, 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.

    ·Section 501(6)(d)(i) was similarly amended by removing the word “significant” from the subsection but it cannot mean a chance or a possibility.  The risk must be based on reasonable grounds.  Administrative discretion must be exercised reasonably.

    ·Section 116(1)(e) has been the subject of considerable judicial consideration. In Gong v Minister for Immigration and Border Protection[5], Judge Smith held that while the provision did not require there to be any solid or certain foundation before the cancellation power can arise, the decision to cancel had to be based on legally reasonable inferences: at [41]. In Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[6], the Court observed that the concept of “risk” has an element of futurity to it and that reliance on past offending alone may not be sufficient to justify cancellation of the visa.  DP Forgie in QKVH v Minister for Home Affairs[7]observed that the word “risk” cannot be seen to simply mean a chance or a possibility. 

    ·The Department’s procedural guidelines concerning visa cancellation under s.116(1)(e) state the term ‘risk’ is not defined in the Act and is by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.

    ·The applicant is not a risk to the Australian community or any individual in the community. He has been at liberty on bail since 23 September 2020 and he would not have been granted bail if considered to be a risk. Any surety would be a further incentive to ensure compliance with bail conditions. Although Departmental policy notes that the grant of bail does not necessarily mean the person is not a risk. The applicant has no history of offending and the original charge has been replaced with a lower charge; Section 97 of the Crimes Act 1900 (NSW) imposes a maximum term of imprisonment for 20 years for the offence of robbery armed with an offensive weapon and 25 years for aggravated robbery. In comparison, s.13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) carries the maximum penalty of five years imprisonment or 50 penalty units or both. A penalty unit is currently $110, prescribed by section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    ·As paragraph 9 of the AGREED FACTS demonstrates, the applicant was not the instigator of the offence and he did not take part in any violent behaviour.  He is not a health risk or a risk to the Australian community.

    [5] Gong v Minister for Immigration and Border Protection[5] [2016] FCCA 561.

    [6] Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 5 August 2020.

    [7] QKVH v Minister for Home Affairs [2018] AATA 1855 at [11]-[13].

15. After the hearing, the Tribunal requested and has been provided with a copy of the sentencing remarks.  The Tribunal refers to the following observations of His Honour Justice Pickering:

    For Mr Qian, he has spent three months and sixteen days in custody which he would never have served had the Director’s office prosecuted him for the offence they obviously believed he committed.  Mr Chen[8] has served seven months and nineteen days, which is again a significant time in custody for a young person with no criminal history.  But they were prosecuted for matters the Director’s office has decided that it could not prove, and only decided it on the week of the trial.  So both have suffered significantly through prosecutorial discretion.

    [8] Co-accused

    On top of that, this negotiated plea comes with the kind of statement of facts that is difficult for sentencing judges.  It is confusing.  It seems to still, at times, refer to the more serious offence and is anything but clear as to specifically what the criminality and the unlawful involvement was of both offenders.  To me, if you are going to negotiate a plea you should probably negotiate a better statement of facts as well.  However, with the assistance of counsel I have essentially been able to figure out their criminality and it seems to me again, consistent with the approach of the Director in relation to Mr Qian, his criminality is being pleaded out to the extent that it is almost non-existent.  With Mr Chen it has been pleaded out, not to the same level, but certainly to a level that is significantly less than what he was originally charged with.  Of course, as the sentencing judge, I am only going to sentence for what they have pleaded to, what the agreement was and what the facts were.  That will have real significance for Mr Qian because I have absolutely no intention of sentencing him to any kind of custodial penalty.  But it will also be important for Mr Chen, who in my view has essentially been punished enough in many respects for what he has done.

    Because the facts are confusing I do not intend to read them out here, but obviously I accept that I am to find the facts as tendered in both separate cases.  Instead I would prefer just to deal with the criminality of both offenders in a nutshell way. 

    …

    In Mr Qian’s case he was unaware that weapons would be used, except for the potential possibility that they would be used.  He was clearly not part of a joint criminal enterprise to do a robbery; he was not part of a joint criminal enterprise to use any weapons.  He was part of a joint criminal enterprise to intimidate, and essentially intimidate in a fashion that would involve multiple people and he would be one of those people.  However it was not part of the joint criminal enterprise that he would have any involvement in the actual physical act of intimidation.  Rather, the joint criminal enterprise agreement was that he would be present.  In the circumstances of the tendered statement of facts it is not possible for me to determine beyond reasonable doubt whether his role was simply that of a lookout, someone who could give a warning, or whether it was a situation where he could get physically involved if needed.  The facts are silent about that, and in those circumstances it would be appropriate to give him the benefit of the doubt that his role was fundamentally that of a lookout who could give a potential warning to the primary offenders inside the vehicle if things went wrong.  Although, of course, in a joint criminal enterprise he is lawfully responsible for the acts of all in the enterprise, in sentencing law it is always well known that you should still focus on the different acts done by the different participants and the different moral culpability of each act.  Therefore, Mr Qian cannot be held responsible for the actions of those inside the car in a sentencing purpose.  In that respect, he is not to be sentenced as though he was effectively armed with a knife and doing the incredibly serious intimidation that was occurring in the car.  Rather, he is being sentenced for the moral culpability of being willing to involve himself in a joint criminal enterprise where multiple people intimated a victim to pay a debt.  That is still a serious offence but not one that would generally, for a young person with no criminal history, result in a sentence of three months and sixteen days.  So, as I repeat, he has been significantly punished already for this matter, but I will return to that in dealing with his sentence.

    There is no need to scale his matter on a range of objective seriousness as this offence carries no standard non-parole period.  The intimidation itself was a serious intimidation, however his involvement was at the lower end of any aspect of the joint criminal enterprise and, as a result, his moral culpability is minimal.

    …

    Dealing firstly then with the case for Mr Qian, extensive material was tendered that went to several important aspects on sentence in relation to his subjective case.  One of those is clearly that he is, apart from this matter, a person of good character.  That is a not an unimportant aspect of this sentencing exercise.  It goes to assist me with a finding that he is unlikely to reoffend in the future and has strong rehabilitation prospects.  That is even more so, because it was clear that before this particular matter and his being bail refused, he was on a solid path.  He was starting a Bachelor of Information and Communications Technology at Western Sydney University.  That has been disrupted by his involvement in this offence.  But he is someone who is interested in education and he does not have any underlying issues.  He is not someone involved with drugs; there do not seem to be any significant mental health issues.  His main issue seems to essentially be something that is not an unusual problem for fairly young offenders, and that is the issue of hanging around the wrong people and quite enjoying the idea, a bit like Mr Chen, of being a bit of a gangster at times.  That is something that hopefully this is going to scare him out of and realising that it is not as fun being a gangster as you think.  He has had a tough time in custody, like any young man in his circumstances would and it has been a real eye-opener for him.  And if he does not realise that now, he should realise that if he is going to continue to commit criminal offences he will come back to court and inevitably start getting custodial sentences that will be longer and more traumatic than the three months he has already served in custody.

    It is clear and proven by the affidavit material before the Court that a conviction here may have some significance in that it may impact on his future in Australia.  Of course, as the Court of Criminal Appeal said in R v Mauger [2012] NSWCCA 51, there are limits to what a court can do in taking into account the question of whether someone’s conviction will have long-term impacts.  It is either appropriate to deal with the matter without conviction or it is not.  But as Mauger also said, if you put evidence before the Court, then the Court is not speculating about the circumstances of the impact that a conviction would have on the offender, and here I do not have to speculate because I have unchallenged evidence that it could make a real difference to his future.  Also in Mauger the Court talked about the significance of a conditional release order, which was at the time referred to as a “s 10 bond”, being linked with a lengthy bond as having an aspect of deterrence built into it.  And the Court stressed in Mauger that that should not be underestimated as an aspect of punishment and deterrence in sentencing.

    In addition, Mr Qian has indicated that he is remorseful for his involvement in this matter.  He again was not asked to be subject to cross-examination and I give that significant weight in this aspect.  He outlined that he perceived his aspect of involvement as a reflection of his own immaturity and irrational behaviour.  No doubt both of those aspects were at play here.

    It is always important in sentencing youthful offenders to give real significant weight to rehabilitation. It is not that general deterrence does not still have a role to play, as in this case it still does, but it points more in the direction of the Court considering balancing the principle of general deterrence against the impacts of sentencing on a young offender moving further in their life. To me here, when I look at this globally, I see Mr Qian as having really been significantly punished already. I do not accept on the facts that the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 (NSW) is even remotely crossed. It would not be necessary in my view to consider a community corrections order. The only view in my mind is that the appropriate sentence for Mr Qian is one of a conditional release order. Whether it should be dealt with conviction or without conviction is the only question for me. I will return to that aspect when I sentence Mr Qian.

    …

    Mr Qian will you please stand sir.  In relation to your matter of intimidation I have decided to deal with you by way of a conditional release order for a period of two years.  I have also decided to deal with you without conviction.  The reason for that is consistent with the Court of Criminal Appeal’s decision in Mauger that there will be real impacts of a conviction upon you, and in my view a two-year conditional release order provides strong aspects of protection to the community, in particular through the ability for me to resentence you, not just to record a conviction but even to impose a custodial sentence on you if you misbehave over the next two years.

    You should understand that that conditional release order means you must be of good behaviour for two years.  If you breach that good behaviour you will be brought back here to court before me and I can resentence you for this offence.  I can impose a conviction upon you and I can actually impose a sentence upon you including full time imprisonment if I wish.

    You must notify the Criminal Registry here in Sydney if you ever change your address in the next two years and you must appear in Court if you are called up for that breach.  What all that means for you is that as long as you behave over the next two years you will not have a criminal conviction, but your fate is in your hands now.

1. The Tribunal has considered the evidence very carefully.  The Tribunal does not question, critique or evaluate the Court’s findings.  As can be seen from the above, Justice Pickering dealt with the applicant in terms of conditional release and not a conviction. 

2. The Tribunal is mindful that the criminal process is different to the visa cancellation scheme.  The Tribunal is of the view that past engagement in criminal conduct might suggest many things, including a propensity or a vulnerability to engage in future criminal conduct and that there does not have to be, any direct, solid or certain foundation; the possibility that some event occurred in the past: Gong v MIBP[9] is relevant.  The Tribunal does not need to quantify the degree of risk and the legislature had intended “…to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might upon their arrival in Australia) be a risk to the health, 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”.  As referred to in Ms Germov’s submissions, s.501(6)(d)(i) was similarly amended by removing the word “significant” from the subsection but it cannot mean a chance or a possibility and the risk must be based on reasonable grounds.

   [9] Gong v MIBP[9] [2016] FCCA 561, at [41].

3. The Tribunal gives significant weight to Justice Pickering’s sentencing remarks and on the evidence as a whole, 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.

4. For those reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Antoinette Younes

   
   Senior Member