Qiao and Minister for Immigration and Border Protection (Migration)
[2018] AATA 168
•23 January 2018
Qiao and Minister for Immigration and Border Protection (Migration) [2018] AATA 168 (23 January 2018)
Division:GENERAL DIVISION
File Number: 2017/6846
Re:Chenyang Qiao
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:23 January 2018
Date of written reasons: 12 February 2018
Place:Sydney
The Tribunal affirms the reviewable decision made on 4 October 2017 to refuse the application for a Student (Temporary) (Class TU) visa.
.........................[sgd]...............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – visa refusal – student visa – failure to pass the character test – substantial criminal record – term of imprisonment of 12 months or more – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 501
CASES
Ashraf v Minister for Immigration and Border Protection and Migration [2017] AAT3 21
Grant v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 3
SECONDARY MATERIALS
Direction No. 65 of the Migration Act 1958 Direction under Section 499 Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
12 February 2018
At the conclusion of the hearing of this matter on 23 January 2018, the reasons for the decision intended to be made were given orally. The Tribunal served both parties with a copy of the order outlining the decision that was made shortly afterwards. On 1 February 2018, the Applicant requested the Tribunal to provide written reasons for its decision pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (Cth). The written reasons are set out below.
The reviewable decision
On 15 November 2017 the Minister for Immigration and Border Protection (the Respondent) notified the Applicant, Mr Qiao, that the Minister’s delegate had decided on 4 October 2017 to exercise a discretion to refuse Mr Qiao’s application for a Student (Temporary) (Class TU) visa. The Applicant seeks the review of that decision in this Tribunal.
The decision to refuse a visa was made under s 501(1) of the Migration Act 1958 (Cth) (the Act). The Applicant had not satisfied the delegate that he passed the character test because he had a substantial criminal record pursuant to ss 501(6)(a) and 501(7)(c) of the Act. That was because the Applicant has been sentenced to a term of imprisonment of 12 months or more. The delegate decided to exercise the discretion under s 501(1) of the Act to refuse the application for the visa.
The law
Section 501(1) of the Act provides:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The decision under s 501(1) must be made in accordance with any written directions under the Act, s 499(2A). Relevantly, that is Direction No. 65 of the Migration Act 1958, Direction under Section 499, Visa Refusal and Cancellation under s 501 and Revocation of Mandatory Cancellation of a Visa under s 501CA (Direction 65). The Preamble of the Direction sets out the objective of the Act and the Direction itself, general guidance, and principles to be followed. Section 2 of the Direction gives guidance as to how to exercise the discretion. Part B of Direction 65:
Identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application.
The issues
The Applicant concedes that he does not pass the character test because he was sentenced to a term of imprisonment of 12 months or more. The issue is, therefore, whether the Tribunal will exercise the discretion conferred by s 501(1) of the Act to refuse his application for the visa made on 19 August 2016.
The evidence before the Tribunal
The evidence before the Tribunal included four bundles of documents provided by the Respondent, a statement made by the Applicant on 6 January 2018, which annexed the sentencing transcript from the Local Court, and the Applicant’s oral evidence.
Background
The following facts are not contested.
The Applicant is 24 years of age. He first arrived in Australia in 2010 aged 17 as the holder of a Student (Temporary) (Class TU) visa, which ceased on 15 March 2013. He was subsequently granted a further Student Temporary visa, which ceased on 30 August 2016. On 30 July 2015, the Applicant was convicted of “Dishonestly Obtaining Financial Advantages etc by Deception” (the offence), and sentenced to 15 months’ imprisonment, which was wholly suspended upon entering into a good behaviour bond for the same period.
The Applicant applied for the visa on 19 August 2016. In that application, the question “Has the Applicant ever been convicted of an offence in any country?” was answered “No”. The Department sent a letter to the Applicant dated 28 September 2016 asking the Applicant to provide an AFP National Police Certificate and personal particulars for character assessment. On 17 October 2016, the Applicant applied for a Bridging visa B to enable him to travel to China. In that application, he stated that he had been convicted of an offence and provided a statement setting out the circumstances of the offence. The bridging visa was granted and he temporarily departed Australia on 23 October 2016.
The Applicant also provided statutory declarations after receiving the correspondence from the Department correcting his answer and writing details of the offence and the AFP certificate disclosing the offence.
The Department issued a Notice of Intention to Consider Refusal of the visa application under section 501(1) of the Migration Act on 13 May 2017. Following receipt of representations made the Applicant, the delegate decided to refuse the Applicant’s visa application on 14 October 2017 under s 501(1) of the Act. The Applicant received notification of the decision on 15 November 2017
The circumstances of the Applicant’s criminal offending
On 30 July 2015, the Applicant pleaded guilty to the offence and was sentenced to 15 months’ imprisonment suspended on entering a bond of good behaviour for 15 months. Following is the summary of the circumstances of that offence, which is based on the document entitled ‘Local Court of New South Wales Sentence Facts’. The document was prepared by a solicitor employed in the Office of the Director of Public Prosecutions in New South Wales and dated 29 July 2015. The Tribunal infers that it was a statement of facts that was before the sentencing Magistrate.
The Applicant was one of four co-accused. Each of the co-accused opened two bank accounts with the Westpac Bank (the Bank) at various branches within one and a half hours on the morning of 18 November 2014. The Applicant opened the accounts at the Burwood branch of the Bank.
About 3.30 pm on 19 November 2014, an unidentified man, using a fraudulent or false driver’s licence, went to the Milsons Point branch of the Bank and directed that $285,000 be transferred from the account of two genuine customers of the Bank to two accounts previously opened by two of the applicant’s co-accused, $150,000 and $130,000 respectively, and the unidentified man withdrew $5000 in cash.
On the same afternoon, between 3:38pm and 4:14pm, each of the co-accused undertook various transactions using the previously opened bank accounts of various branches of the bank. Between 3:38pm and 4:10pm, one of the co-accused transferred $75,000 into a bank account opened by the Applicant. Between 3:59pm and 4:02pm, the Applicant directed a bank employee at the Haymarket branch to draw a bank cheque for $65,000 and to withdraw $10,000 in cash.
On the morning of 20 November 2014, the Applicant deposited the bank cheque into the same account to which the $75,000 had been deposited at the Burwood branch of the Bank. At 1:30 pm on 21 November 2014, the Applicant went to the Haymarket branch of the Bank and tried to access his bank account. The Bank staff contacted a Bank fraud investigator and police. He left the bank before the police arrived. About 5:35pm on Sunday, 7 December 2014, the Applicant was arrested at his residential address and taken to the Burwood police station.
He agreed to be electronically interviewed by police and identified himself in images taken from the Bank’s CCTV footage. He denied criminal wrongdoing. He was charged. He told this Tribunal that he had not been told by police that he could obtain a solicitor. The Bank reimbursed the Bank’s customers $285,000 and consequently suffered a loss of $35,000. The bail acknowledgement document shows that the Applicant was granted bail on the night he was arrested and he was charged with the offence of recklessly dealing with the proceeds of crime.
Consideration
Part B of Direction 65 states that there are three primary considerations and sets out factors relevant to each. The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia, which is not relevant in this case;
(c)Expectations of the Australian Community.
Protection of the Australian Community
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.[1]
[1] Direction 65, cl 11.1(1)
The nature and seriousness of the conduct
The Tribunal takes into account the matters set out in Direction 65 in paragraph 11.1.1 that are relevant to the Applicant’s case.
The Applicant has committed the one offence, however, the sentence of imprisonment imposed, although suspended, shows that the court considered the offence to be serious.
The following comments made by the sentencing Magistrate demonstrate his reasoning:
·The circumstances in which the co-accused conducted themselves leading to the pleas of guilty to those offences were, in my view, serious.
·It involved the fraudulent taking, or attempted concealment, of $285,000.
·In essence, fraudulently obtained money went into one account and then was moved to the accounts of others, or the second accounts.
·Luckily, the majority of withdrawals were stopped and the money retained.
·$35,000 was not retained and had been lost to Westpac.
·Others engineered the criminal enterprise. The co-accused played their part, but their part was at the lower end and was limited. It was not fundamentally their enterprise.
·It is … not apparently disputed that the co-accused did not even know each other prior to this. It seems to me, though, that it could not be said that they were mere agents or innocent pawns.
·Obviously, they must have had their eyes open to be asked to go and set up bank accounts and have large amounts of money transferred into them and then deal with … amounts … in a very timely fashion. … It is not conduct about which I could possibly accept that there was such naivety that they did not know what was going on and, indeed, they pleaded guilty to the offence.
·… They were not the masterminds who … stood to profit most substantially. They are studying and working and in all respects, apart from this, are contributing well to Australian society and these offences are abhorrent, completely abhorrent. They are obviously intelligent men … studying substantial courses … at university and that adds to my view that they could not be said to be no naïve in this proceeding as might otherwise be thought.
·It is clear in assessing the objective seriousness that I need to have regard to the amount of money involved and that amount of money, $285,000, is substantial.
·Even in the individual cases, the amounts of money are large, on anyone’s view.
·It plainly is a part of a planned, or organised, criminal activity.
·The co-accused pleaded guilty at the earliest opportunity.
·The matter having resolved in the Local Court, it is appropriate to afford the utilitarian discount of 25 per cent.
·It is appropriate to suspend the sentence on the basis that the co-accused have no criminal history, they have contributed to society in a meaningful way and their references allow me to conclude that they have excellent prospects of rehabilitation, that this was an abhorrent course in their lives and which will not be repeated.
The Tribunal accepts the Respondent’s submission that the Applicant has sought to downplay his role in the offence to the Department and to this Tribunal. It is unnecessary to detail the various inconsistencies between the facts set out above and the Applicant’s statements and oral evidence. It is sufficient to say that his various statements portray him as trying to do a favour for a friend for various reasons and that he had no idea of any more serious or criminal purpose for his actions. The submission made on his behalf was that he was naïve and had had a sheltered upbringing.
The Tribunal accepts the assessment of the sentencing Magistrate that the Applicant had his eyes open and was not so naïve that he did not know what was going on and pleaded guilty to the offence. It did not understand the Respondent’s submission to be that the Applicant had a greater involvement in the offence than that found by the sentencing Magistrate based on the facts document. If that were the intention of the submission, the Tribunal does not accept it. The Tribunal does not accept that it can go behind the findings made by the sentencing Magistrate or that it is in a position to do so. The offence and sentence, the subject of s501 in this case, is that imposed by the court. It is for this Tribunal to determine the seriousness of the offence in the context of its decision making role.
The Respondent submitted that the Applicant had provided false or misleading information to the Department; that is, failing to disclose his criminal history in his visa application as set out above. The Tribunal has concluded that the Applicant did give false or misleading information by not disclosing in his visa application his prior criminal offending. He provided various explanations for that answer being given. First, he stated that he had completed the form online and had copied and pasted answers from a previous application. At the hearing, he said that he had not seen the form before it was lodged and that it had been filled in by his migration agent. The Applicant tried to overcome that obvious inconsistency by blaming his solicitor and agent for preparing the statement where he said he had completed it online. He had signed the statutory declaration dated 21 October 2016 in Chinese.
The Tribunal accepts that it does not have any declaration by an Interpreter but nor does the 6 January 2018 statement. He was legally represented on both occasions, although by different lawyers. In the latter statement, the Applicant made corrections to two earlier statutory declarations, including that dated 21 October 2016. He did not alter the statement about how he completed the visa application. The Tribunal concludes that the applicant’s criminal offending, and subsequent failure to disclose his criminal history to the department, is very serious.
Risk to the Australian community
Australia has a low tolerance of any criminal, or other serious conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia. The Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Applicant’s criminal history and his failure to disclose that history to the Department are serious matters to be taken into account. Both demonstrate that the Applicant can act dishonestly. The Tribunal found him to be an unimpressive and unreliable witness. It accepts that he has been convicted of one criminal offence, that was committed in November 2014, and that more than three years have elapsed since then when he has been residing in Australia and enrolled in courses of study.
It notes that he was on a good behaviour bond for 15 months from 30 July 2015. The failure to disclose this criminal history to the Department was in August 2016, more than two years and nine months after the commission of the criminal offence. Based on his criminal history and his failure to answer the question on his visa application honestly, the Tribunal finds that if the Applicant perceives a benefit for himself, he will be prepared to act dishonestly. It notes that the evidence before it was that he did not receive any financial reward in relation to the offence, although there were conversations that he would receive some $200.
The Applicant claims that he intends to study in Australia. He claims that he has only four units, or one term, to complete his Bachelor degree and will then return to China. The Tribunal does not accept that that evidence is reliable. There is no independent documentary evidence to support the Applicant’s claim that he has completed one or two diploma courses or that he is as advanced in his Bachelor degree studies as he has claimed. Evidence of enrolment is not evidence of achievement. He told the Tribunal that his passes were “normal”. In the personal statement provided with his application for bridging visa in October 2016, the Applicant claimed that he was studying Diploma until now and had been accepted into university and had been studying Bachelor of Business since 2015 and due to graduate in 2017. He did not graduate in 2017. His visa application does not indicate when he would complete the course.
If the Applicant genuinely intended to remain only a few months to complete his degree and then return to China, the Tribunal would take that into account in assessing the risk he will pose if the Tribunal refused to exercise its discretion to refuse the visa. However, it does not accept that his evidence is reliable. It also has no power to impose a condition in terms of the visa that would be issued. If the Applicant remains in Australia, the Tribunal finds that the Applicant would pose a significant risk of harm to the Australian community by acting dishonestly. The Tribunal has taken into account the statements from individuals in support of the Applicant but they do not overcome the Tribunal’s concerns about the Applicant’s dishonest conduct.
Expectations of the Australian Community
The Australian community expects non-citizens to obey Australian laws while in Australia. The applicant has been convicted of an offence in Australia. He has also not answered honestly a question in the visa application form. In the circumstances of this case, the Tribunal finds that the Australian community would expect that the applicant would not be granted a visa. In making those findings, the Tribunal has taken into account that the Australian community accepts some risk in relation to the conduct of non-citizens depending on the seriousness: Ashraf v Minister for Immigration and Border Protection and Migration [2017] AAT3 21 at [89]. It is also taken into account that the Australian community exhibits compassion and acknowledges that people can rehabilitate and grow up and change their ways: Grant v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 3 at [103]:
The Tribunal does not accept the submissions made by the Applicant’s legal representative that it accept the sentencing Magistrate’s assessment that the Applicant has excellent prospects of rehabilitation. His seeking to downplay his criminal offending and failure to disclose his criminal history to the Department does not support such a finding.
Regrettably, in this case, the Applicant has had the opportunity to demonstrate that he has grown up and changed but has, in fact, demonstrated for a second time that he is dishonest.
Other considerations
The Applicant’s representative emphasised that the refusal of the visa would adversely impact on the Applicant’s family because of their ongoing financial support for his studying in Australia. The Tribunal accepts that they will be disappointed if the Applicant cannot complete his Bachelor degree.
Conclusion
For the above reasons, the Tribunal has concluded that the considerations that support the exercise of the discretion to refuse the Applicant’s visa application strongly outweigh those that do not support the exercise of the discretion.
Decision
The Tribunal affirms the reviewable decision made on 4 October 2017 and notified to the Applicant on 15 November 2017 to refuse the visa application.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
...........................[sgd].............................................
Associate
Dated: 12 February 2018
Dates of hearing: 22 and 23 January 2018 Counsel for the Applicant: Mr R Chia Solicitors for the Applicant: Ms T Leung, McQiu Lawyers Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
0
1
0