Seo (Migration)

[2019] AATA 6925

Seo (Migration) [2019] AATA 6925 (8 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Eunock Seo

CASE NUMBER:  1910272

HOME AFFAIRS REFERENCE(S):          BCC2019/43960

MEMBER:David McCulloch

DATE:8 October 2019

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 08 October 2019 at 8:44am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to safety of individual – assault on Australian citizen partner – relatively low level of seriousness – guilty plea, no conviction, conditional release order – discretion to cancel visa – factors for and against cancellation – applicant’s distress over death of young daughter in home country due to medical negligence – financial hardship – partner requested that charges be dropped – relationship with partner continuing – applicant’s study plans – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(e)

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 16 April 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 applicant is a citizen of South Korea. The visa that has been cancelled was granted on 18 October 2018 for a stay period until 20 November 2019.

3. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia may pose a risk to a segment of the Australian community, that her presence might be a risk to the safety of an individual, her partner Mr Daniel Lee. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 3 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Daniel Lee. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

6. 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

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. 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?

8. 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].

9. 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.

10. The applicant provided to the Tribunal court and police documents relating to six charges that were laid against the applicant relating to events that occurred on 2 January 2019. The applicant was charged with one count of stalking or intimidating, two counts of assault occasioning actual bodily harm, one count of intentionally choke a person, and one count of common assault. The documents indicate that the applicant pleaded not guilty to all of the charges except for one charge, being a charge of common assault. The documents indicate that all of the charges except the charge to which the applicant pleaded guilty were withdrawn.

11. The New South Wales Police Facts Sheet outlines the allegations against the applicant relating to the six charges. The Facts Sheet that has been provided (the same as a document provided to the Tribunal directly by the court) includes a significant proportion of the allegations struck out in pen with a small remainder of the allegations remaining. The Tribunal considers that the remaining information is the found and agreed facts leading to the guilty verdict for common assault. The applicant agreed that this was the case in the Tribunal hearing.

12. The Tribunal sets out the agreed facts leading to the guilty plea.

13. The victim in the matter is a person with whom the applicant had been, at the time of the allegations, in an intimate domestic relationship for the previous four months (Mr Lee). The relationship had been going through significant financial hardship. On 2 January 2019 after awakening, the applicant and Mr Lee became involved in a verbal altercation regarding their financial situation. Mr Lee left  the apartment to go for a drive to relieve the situation. At a later point in the day the applicant was attempting to return to the apartment but the victim had told reception staff to refuse entry to the applicant. This then involved an altercation between the applicant and Mr Lee in the foyer area of the apartments. The applicant attempted to strike Mr Lee. This was prevented by a friend of Mr Lee. The applicant threw a phone from her right hand with force. The applicant and Mr Lee’s friend then became involved in a scuffle which the victim attempted breaking up. This scuffle was captured on CCTV footage. A little later in the foyer area the applicant approached Mr Lee without warning and swung the black bag from her right arm into Mr Lee’s left arm causing contact with Mr Lee’s arm. Mr Lee had raised his left arm in defence to prevent the bag from striking him in the body or head region.

14. Police were called and attended a short time later where they separated the parties and obtained their versions of what happened. The applicant was placed under arrest.

15. Documents from the Local Court indicate that in relation to the Common Assault charge that the applicant pled guilty to, that she was found guilty, but without proceeding to conviction, and sentenced to a Conditional Release Order for a period of 15 months.

16. In the Tribunal hearing the applicant indicated that the above facts leading to the conviction are correct and that she was convicted and sentenced as indicated.

17. The Tribunal indicated to the applicant in the hearing that the information above was relevant because the factual circumstances combined with the applicant pleading guilty to an offence of common assault could cause the Tribunal to consider that the applicant was, or might be, a risk to the health and safety of the community or specific individuals, particularly her partner. The Tribunal indicated that the consequence of relying on the information could be for the Tribunal to conclude that the ground of cancellation is made out. 

18. In response the applicant referred to extenuating circumstances. These are referred to in consideration as to whether the visa should be cancelled.

19. The applicant has pleaded guilty to a charge of common assault. This indicates to the Tribunal that the applicant is, or at least might be, a risk to the health and safety of either the community or specific individuals, specifically the applicant’s partner.

20. The Tribunal notes that the relevant test only requires the applicant to be potentially at risk. The Tribunal considers that this fact is readily made out by the applicant having pled guilty to a charge of common assault.

21. 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

22. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

23. The Tribunal finds that the only facts agreed to or proven against the applicant are the facts contained in the redacted Facts Sheet outlined above leading to the conviction for common assault. Notwithstanding the inappropriateness of the applicant engaging in physical contact and harm leading to a conviction for common assault, the factual matrix of harm is at a relatively low level of seriousness. The Tribunal also takes into account that no formal conviction has been recorded against the applicant.

24. The Tribunal has a copy of a letter provided by the victim, the applicant’s partner, Mr Lee, to New South Wales police. That letter requests that the charges be withdrawn against the applicant.

25. In the letter, Mr Lee states that the applicant’s daughter passed away. The letter states that this has made the applicant very distressed and led to arguments about their financial situation. The letter notes that the applicant was not attempting to murder him, but was only acting through emotional distress. The applicant requires counselling following the loss of her daughter and on one occasion was ‘on top’ of the victim before realising and backing away, and starting to cry. The letter notes that the applicant has demonstrated on other occasions the ability to keep her past under control. The applicant and the victim attended Bankstown Hospital in order to seek professional help from a psychologist, regarding the applicant’s stress and grief. According to the letter, the psychologist stated that the applicant requires counselling.

26. Mr Lee states that he believes the incidents occurred due to the applicant’s emotional state, and he understands why she behaved in the violent manner. He states that the charges came about due to the applicant’s mental health and provocation from one of the witnesses who had pressed charges against the applicant. Mr Lee states that taking the applicant to court would affect her mental health and recovery, and that the court proceedings would add further stress to the applicant given her financial situation. Mr Lee states that PTSD may be involved, and notes that his father also had PTSD, so the victim knows that it is difficult to control without professional help.

27. The fact that the victim in the matter, Mr Lee, subsequently urged that the charges be dropped is a mitigating factor.

28. In the hearing the applicant indicated that on 16 November 2015 her seven-year-old daughter died in South Korea when under the care of her father. She had had a flu/cold. There was medical negligence because she was treated with an excessive dose of adrenaline which caused heart failure. The applicant indicated that she returned to South Korea for the funeral. She was in a very difficult emotional state.

29. These were the circumstances causing the heightened emotions and the facts leading to the conviction for assault. Mr Lee in the Tribunal hearing corroborated what the applicant had told the Tribunal. It was indicated by the applicant that she and Mr Lee continue to be in a relationship.

30. The Tribunal accepts the fact that the applicant’s daughter passed away in the circumstances described and the emotional impact on the applicant.

31. The Tribunal accepts as extremely distressing for the applicant to have had her daughter pass away in her home country while she was in Australia in the circumstances described. The Tribunal can accept that these events could cause an extreme emotional response. The Tribunal accepts that the death of the applicant’s daughter is an extenuating circumstance beyond the applicant’s control that mitigates to some extent the events leading to the assault. This is also in the context of the assault itself being moderate in its intensity as per the agreed facts.

32. The applicant indicated in the hearing that she had been studying an English course from April 2015 until April 2016 when her enrolment was cancelled due to the cancellation of her visa. The Tribunal accepts this. The applicant indicated that if the visa is reinstated she will seek to enrol in a cookery course. Her dream is to become qualified as a chef. It will be a hardship to the applicant if the visa remains cancelled in that she will not be able to pursue this goal in Australia. The Tribunal accepts hardship to the applicant in this respect.

33. The Tribunal notes that the student visa that has been cancelled will shortly expire and therefore the applicant will need to make a new application for a student visa which will be considered on its own merits. The Tribunal accepts that a hardship to the applicant if the visa remains cancelled will be her inability to apply for a new student visa onshore.

34. The applicant’s partner, Mr Lee, is an Australian citizen and continues to be in a relationship with the applicant. It will therefore be a hardship both to the applicant and Mr Lee if the visa remains cancelled because it would likely involve the applicant having to return to South Korea without Mr Lee thus ending the relationship. The Tribunal considers that this would be a not insignificant hardship to the applicant.

35. The Tribunal weighs up discretionary factors. The agreed or proved facts leading to the applicant’s conviction for common assault are at the low end of the spectrum of seriousness. The victim in the matter subsequently requested that the charges be withdrawn. The Tribunal does accept that there are mitigating factors due to the death of the applicant’s daughter causing her to be in a heightened emotional state. The Tribunal accepts hardship to the applicant if her visa remains cancelled due to her inability to continue with her study in Australia and disrupted arrangements and having to return to her home country prematurely and causing the ceasing of her relationship with Mr Lee.

36. The Tribunal does note that it has accepted that the applicant may or might be a risk to Mr Lee and others in terms of finding that the ground for cancellation has been made out. However, in all the circumstances including the heightened emotional state of the applicant caused by the death of her daughter the Tribunal considers that the prospect of this is remote. In this respect the Tribunal notes that Mr Lee continues in a relationship with the applicant.

37. Weighing up discretionary factors both adverse and favourable to the applicant, the Tribunal determines not to exercise its discretion to cancel the visa.

38. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    David McCulloch
    Member