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

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).
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.
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.
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 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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Qian (Migration) [2021] AATA 1171
Case: [2021] AATA 1171
Decision Date: 22 January 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 500 (Student) visa of the applicant, Mr. Qian. The cancellation was based on the Minister's satisfaction that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, as provided for under section 116(1)(e) of the Migration Act 1958 (Cth). The applicant had been charged with robbery armed with an offensive weapon, stemming from an alleged involvement in an incident on 16 May 2019.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Act was established. This section permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is, or may be, a risk to the health, safety, or good order of the Australian community or a segment thereof, or to the health or safety of an individual. The Tribunal was required to consider the evidence presented by the applicant, including subsequent court proceedings and agreed facts, to determine if this risk threshold was met.

The Tribunal reasoned that while the applicant was initially charged with serious offences, including robbery armed with an offensive weapon, these charges were subsequently dropped by the NSW Police as "not appropriate." The applicant did, however, plead guilty to stalking and intimidating with the intent to cause fear of physical harm. Crucially, the sentencing outcome for this offence was not a conviction, but rather a two-year good behaviour bond. The Tribunal also considered the agreed facts of the incident, which indicated the applicant's genuine belief that he was assisting in the collection of a debt and that while he understood intimidation might be used and weapons were a possibility, he was not part of an agreement to use weapons and was unaware knives would be employed. Based on these subsequent events and the nuanced understanding of the applicant's involvement, the Tribunal concluded that the ground for cancellation under section 116(1)(e) was not satisfied.

Consequently, the Tribunal set aside the decision to cancel Mr. Qian's Subclass 500 visa and substituted a decision not to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or 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]. 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) 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 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 18th of December 2020. 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

Decision

Reasons for decision

For those reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

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