SU (Migration)

[2018] AATA 511

SU (Migration) [2018] AATA 511 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHIYANG SU

CASE NUMBER:  1726742

DIBP REFERENCE(S):  BCC2017/2252323

MEMBER:Jennifer Cripps Watts

DATE:7 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 07 February 2018 at 5:03pm

CATCHWORDS

Migration – Cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Convicted of an offence – Multiple counts of fraud and assault – Applicant’s unwillingness to part from sponsor – Sponsor’s unwillingness to depart Australia – Close family relationships – Hardship claims – Inconsistent evidence

LEGISLATION

Migration Act 1958, ss 116, 140

Migration Regulations 1994, r 2.43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 October 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that there was a ground for the cancellation because the applicant was the holder of a temporary visa and had been convicted of an offence against a law of the Commonwealth, a State or Territory: r.243(1)(oa). 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 visa that is the subject of this review was refused on 25 October 2017.  The sponsor for the subclass 820 (temporary) partner visa that was cancelled is the applicant’s wife, Zhe Yang (“the sponsor”).  The applicant applied for review by this Tribunal on 31 October 2017, within time and provided some documents in support of his application for review, including written submissions from his representative.  The applicant’s matter was constituted to this member on 3 January 2018 and a written invitation to attend a hearing was sent to the applicant on 8 January 2018.  In the invitation, it was requested of the applicant that he provide any additional documents or information that he may wish to rely on during the hearing to the Tribunal by 29 January 2018. 

4. The applicant appeared before the Tribunal on 5 February 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife/sponsor for his partner visa, Ms Zhe Yang and a friend of the applicant, Mr Weixian Xian.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review by his registered migration agent, Yan Li, Migration Agent Registration Number 1798523.

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. Relevantly, to this case, these include the ground set out in s.116(1)(oa). 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)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.

   Consideration of claims and/or submissions

9. The applicant was notified in writing by the delegate of the intention to consider cancellation of his visa on 12 October 2017.  The applicant provided a written response to the delegate on 23 October 2017, including details of the offences he had committed and resulting convictions. 

10. It is not in dispute that the applicant was convicted of the offences which he has provided information about and confirming to the delegate, against a law of the Commonwealth, a State or Territory while he resided in Australia as the holder of a subclass 820 partner (temporary) visa.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(oa) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. 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, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

13. The Tribunal has had regard to and considered relevant written information and oral evidence provided by the applicant.

14. The applicant arrived in Australia for the first time in 2012 holding a student visa. He attended [High] School to study English, where he says he met the sponsor, who was also studying English there. She had arrived in Australia in 2013 as a secondary applicant to her mother’s partner visa. The applicant and sponsor married each other on 7 September 2014 and lodged an onshore partner visa application. The subclass 820 (temporary) visa was granted on 14 March 2016. The temporary visa was cancelled because the applicant was convicted of several offences in New South Wales: r.2.43(1)(oa).

15. It is not in dispute that the applicant has been charged, convicted and sentenced to multiple counts of fraud related offences committed in 2014 and two counts of assault in company occasioning actual bodily harm committed in 2016.  He and his witnesses (and those who provided written statements) all confirm they know of the convictions and claim the applicant is of good character.  They say that it was immaturity and his propensity to consume alcohol that lead to his behavior resulting in the convictions.  His actions with regard to his convictions, that is for fraud and assault, do not, in the view of the Tribunal, strongly support the witness’ claims that the applicant is of good character.

16. There was no information before the Tribunal that the applicant, who claims that his consumption of alcohol has been a significant contributing factor to his errant behavior resulting in the charges and convictions, has done anything to mitigate against further behavior that may be fuelled when he is under the influence of alcohol.  There was no claim or evidence before the Tribunal that the applicant has ceased consumption of alcohol or sought any professional help for personal alcohol related issues.  The suggestion that the applicant has a problem with his behavior when under the influence of alcohol and the implication that it is out of character is not given weight, in the circumstances. 

17. In written submissions received by the Tribunal in November 2017, the claimed hardships the applicant will suffer if his visa is cancelled include:

    a.Without a partner visa, the applicant will “…not be able to have a very stable life in Australia” because “…he will be always afraid of his visa here.”

    b.It will not be “…very easy to find a stable job and he will not be eligible for the Medicare benefits.  These things are basic securities for a human.”

    c.The applicant could easily get work in China and a similar Medicare benefit and that he prefers to go back to China

18. The applicant gave no indication whatsoever at the hearing that he “prefers to go back to China”.  In fact, he indicated on a number of occasions throughout the hearing that he does not intend to go back to China, even if his visa is cancelled.   The sponsor said the same. 

19. In the written submissions from the applicant’s representative that are on the Tribunal file, it is quite clearly stated that the applicant can easily get a job in China and that he can get similar health care benefits to the Medicare benefits in Australia.   The applicant told the Tribunal that his mother and father (who are still married and living together) and a younger brother live in Zhaoqing City, about an hour from Guangzhou.  On the basis of this, the Tribunal is satisfied, as there is no evidence to the contrary, that the applicant will be able to rely on his family to support him if he departs Australia and returns to China to live.  For example, he could live with his family if he wanted or needed to.  There is no claim or evidence before the Tribunal that the applicant could not live with his parents in China if he chose or needed to.  Nor that the sponsor could likewise live with the applicant in the circumstances.

20. There have been claims made that the sponsor could not travel with the applicant to China, as his sponsor, if the applicant’s visa was cancelled.  The Tribunal asked the sponsor questions about her health, employment and financial status at the hearing and does not consider that there would be anything, other than her reluctance to go with her husband to China to live because she doesn’t want to live there, that would prevent her from going with him if she wished.  Nevertheless, the sponsor said very clearly that she does not intend to accompany him to China if his visa is cancelled and he departs Australia.  She said she is close to her mother and would not want to be separated from her.  This has been considered.

21. Despite the sponsor’s claims that she cannot and will not accompany her husband to China if his visa is cancelled, she gave oral evidence at the hearing that she has travelled to China on several occasions, for extended periods of some months, from 2013 to the time of this decision.  The reason for these trips was to visit her biological father, who is a Chinese citizen and lives in China with her paternal grandmother.  The sponsor said she also has maternal grandparents in China who she has visited on these occasions.  The Tribunal can see no reason why, if she is unwilling to accompany her husband for any reason, that she cannot continue to visit him in China if he returns there, much in the same way as she visits her other close relatives.

22. The sponsor’s mother provided a statement to the Department dated 18 October 2017.  There is no claim made or evidence before the Tribunal that the sponsor and her mother need to live together or in the same country for any medical, financial or psychological reasons.  The sponsor’s mother lives away from her parents – on the sponsor’s oral evidence, they are in China and she is in Australia.  The sponsor, her mother and the applicant all have close and extended family members in China and the Tribunal does not consider that separation caused by the applicant and sponsor either being together or living separately would be unusual in their personal circumstances. 

23. In any event, the applicant’s wife is a woman who is 23 years of age and has been married to the applicant since 2014.  Both the applicant and sponsor claim the marriage is genuine and long term.  It is reasonable to think that the applicant’s wife can make her own decisions about where she lives and, likewise, make such arrangements as may be necessary or required to be supportive of her mother, her husband or both, or any other close family members, whatever circumstances the applicant finds himself in.

24. On the evidence before the Tribunal, the sponsor’s mother lives in her own home in [Suburb 1], New South Wales, pays her own mortgage and works in the massage business.  According to the applicant and sponsor they now live in the house with her in [Suburb 1]. They said that the sponsor’s stepfather died in late 2013 and left the house to the sponsor and her stepbrother, in equal shares, and that the sponsor’s mother has the right to live there.  They said that even though the house belongs to the sponsor and her stepbrother, the sponsor’s mother takes responsibility for and pays the mortgage that is owed on the property.  The applicant said that he and the sponsor sometimes make contributions to day-to-day living expenses, but there was no suggestion and no evidence provided that either the applicant or sponsor pay the mortgage on the [Suburb 1] house. 

25. The sponsor has, in the past, lived separately from her mother for periods of time, when she moved out of the family home in [Suburb 1] and into a property at [address] in [Suburb 2] with the applicant.  There is no evidence that the sponsor or her mother suffered any significant hardship during the period of separation up to the end of 2016, when the sponsor says that she and the applicant moved back to [Suburb 1].  In any event, if the sponsor did accompany her husband offshore (even though she has said she will not accompany him to China), there is no reason to think she cannot keep in contact with her mother, either in person by one or either of them visiting each other or by phone, app or communicating online.

26. The view the Tribunal formed of the applicant is that he will not entertain taking any steps to depart Australia if the visa is cancelled.  If his visa is cancelled, he can apply for other visas he might be entitled to apply for or pursue judicial review, that is a matter for him and either depart Australia or, if he has a legal right to reside in Australia, remain onshore.  He said at the hearing he will appeal the decision if the Tribunal affirms the Department’s decision to cancel is visa.    

27. The applicant has provided internally inconsistent information about his intention to depart Australia if his visa is cancelled and his prospects in China if he does.  Written submissions indicate that he prefers to go to China if the visa is cancelled and would have no problem getting a job.  At the hearing, when that was put to him, he said he had never said if he goes back to China he can find work.  He was taken to the written submissions provided to the Tribunal which clearly state this and then contradicted the oral evidence he had just given by saying that what he meant was he didn’t say that recently.  He was asked if he had ever said he could easily get a job in China and said he had and that his agent had written it, which indicates to the Tribunal that he was aware his agent had written it.  The Tribunal considers this to be information that was provided by the applicant.

28. The applicant claims that if his visa is cancelled and he cannot work, he and the sponsor will suffer financial hardship.  Up until October 2017 the sponsor worked full time and she and the applicant lived separately from the sponsor’s mother.  It is reasonable to think that the sponsor and applicant paid rent when they lived in [Suburb 2], or at least had some significant day-to-day living expenses that would be usual for a married couple.  They both gave oral evidence at the Tribunal hearing that they do not pay rent to the sponsor’s mother at the time of this decision.  The Tribunal is entitled to, and does, conclude that the applicant and sponsor do not pay rent at the time of this decision and that this will significantly lessen any financial burden or hardship that might be caused by the cancellation of his visa and any no work restriction that would likely result.  The sponsor said that she is hoping to work in a nail salon.  She has, in the past, worked as a waitress.  There is no evidence before the Tribunal that she could not work to support herself and her husband in Australia if she needed or wanted to.

29. Neither the sponsor nor applicant has claimed to have any debts and whilst the applicant says the house in [Suburb 1] is in her and her stepbrother’s names and there is a mortgage against it, there was no evidence provided to the Tribunal what the amount of the mortgage is or what the repayments are.  In any case, the applicant and sponsor say that the mortgage is paid by the sponsor’s mother.  The Tribunal does not consider, given that information was also provided that the sponsor’s mother works and currently pays the mortgage, that the sponsor or her mother will suffer financial hardship if the applicant’s visa is cancelled and that the sponsor’s mother will not continue to pay the mortgage. 

30. The applicant told the Tribunal that in 2017 he bought a Mercedes Benz for more than $50,000.  He was asked where he got the money, whether it was a loan from a bank for example.  He said he won the money to buy the car it at Star City Casino in a series of successful wins at the baccarat table.  He said he won about $40,000 in total, he couldn’t remember exactly when but it was before he bought the car in August 2017.  He said he made up the difference with savings he had.  The applicant was asked if he still goes to Star City Casino.  He said he doesn’t go there anymore because the sponsor does not want him to gamble.  The applicant and sponsor, if they feel they will suffer any financial hardship or do suffer any financial hardship can, in the view of the Tribunal, mitigate against it by selling the car.  Even if the applicant gets substantially less than the amount he paid for the car in 2017, it would still be a significant amount of money.

    Does the applicant have a compelling need to remain in Australia

31. The applicant told the Tribunal that he continues to work in a restaurant in Campbelltown at the time of this decision.  The sponsor gave the same consistent oral evidence.  However, this is a part-time job and there was no claim that he is contracted to continue to work for his current employer. 

32. There is no claim or evidence provided that the applicant has any debts or liabilities in Australia.  The applicant gave oral evidence that he only has about 10 hours to complete of his community service order.  He currently lives with his mother-in-law and does not have any legal obligations that the Tribunal is aware, for example, a residential lease. 

33. The applicant’s claims as to why the Tribunal should exercise its discretion not to cancel the visa have been considered, on the evidence provided by the applicant and having regard to all relevant facts and matters.  This has been discussed above.  The Tribunal finds that there is no compelling need for the applicant to remain in Australia.

    Extent of compliance with visa conditions

34. There is no evidence before the Tribunal that the applicant has been non-compliant with his visa conditions.

    Degree of hardship that may be caused

35. The Tribunal has considered the claim that the sponsor will suffer financial, psychological, emotional or other hardship if the applicant’s visa is cancelled.  This has been discussed in detail above.

36. The applicant and sponsor have close and extended family living in both Australia and China.  They gave oral evidence at the hearing that indicates the applicant and sponsor visit China and the applicant’s father visits Australia.  The applicant has paternal grandparents and an uncle who live in Australia.  The sponsor has her biological father, a paternal grandmother and maternal grandparents who live in China.  The applicant’s father visits Australia, the applicant himself visited his family in China in late 2017, and the sponsor has made several visits to China to visit her family there since 2013.

37. The Tribunal finds that whilst the sponsor, applicant and their families may suffer some hardships if the applicant’s visa is cancelled, the hardships will not be of such significance as would persuade the Tribunal that the discretion should be exercised not to cancel the applicant’s visa that is the subject of this review.

    Circumstances in which the ground of cancellation arose

1. Relevant to this case, the Tribunal has considered whether there were any circumstances in which the ground for cancellation arose that were beyond the visa holder’s control.

2. The applicant suggests that he was subjected to some level of criminal influence and coercion with regard to the 2014 fraud related offences by a friend called Jack.  The applicant claims at the time of this decision, as do his witnesses, that he was immature at that time and made some bad decisions.  The applicant and his witnesses submit that the 2016 assault offences were in part because he was moving with a bad crowd and drinking alcohol.

3. The Tribunal has considered the circumstances of the applicant’s convictions, including the assault in October 2016 he was convicted of involved him using a one metre long metal pole to strike the victim in the head.  The Tribunal finds that there were no circumstances that were beyond the applicant’s control in 2014 or 2016.  In 2014 he was 21 years of age and in 2016 was 23 years of age and therefore legally an adult and it is reasonable to think he was aware of his actions and had an ability to assess risk, even if it appears he did not do so very effectively.  There is no evidence before the Tribunal that the applicant suffers from any medical conditions, either physical or psychological or that would lead the Tribunal to conclude that the circumstances leading to the cancellation of his temporary partner visa were beyond his control.  Even though he claims he acted out of character when he committed the assaults in 2016 because of the effects of alcohol, this is not given credit by the Tribunal for reasons discussed above.

   Past and present conduct of the applicant towards the Department

4. On the evidence before the Tribunal, the applicant appears to have been engaged with the Department and has co-operated with and been responsive to requests for information.

5. The applicant’s representative handed up a document at the hearing.  It is a notification of cancellation of his bridging visa B (BVB) that was granted on 23 November 2017.  The letter is dated 15 January 2018.  Information in the letter indicates that the applicant was notified in writing of an intention to cancel his BVB on 4 January 2018, he responded to the notification on 9 January and the BVB was cancelled on 15 January2018.  The applicant’s representative confirmed this information at the Tribunal hearing.

6. The Tribunal does not consider this to be relevant information going to the matter of whether the discretion should be exercised when the Tribunal is considering if it should exercise its discretion not to cancel the applicant’s subclass 820 (temporary) partner visa.  However, it does appear that he was engaged with the Department and responded to requests for information with regard to his BVB cancellation and the Tribunal gives weight to this.

   Mandatory legal consequence

7. The Tribunal has considered whether cancellation would result in the applicant being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application with the Minister’s intervention. 

8. If the applicant’s visa is cancelled and he becomes an unlawful non-citizen he may be subject to mandatory detention and removal from Australia.  The applicant can make his own inquiries about whether he is entitled to apply for any other visas without the Minister’s intervention.  There is no reason, on the available evidence, for the Tribunal to think he will be detained, either temporarily or indefinitely.  

   Consequential cancellations

9. The Tribunal is not aware of, nor was any claim made or evidence provided that there would be consequential cancellations under s.140 of the Act if the applicant’s visa was cancelled.

10. The applicant has claimed that an important reason why his visa should not be cancelled is that he and the sponsor are planning to have a baby.  There is no claim or evidence before the Tribunal that the applicant and sponsor have a biological child together. There are no dependants included in the applicant’s partner visa application.  If they are planning to have children in the future, that is a matter for them as a married couple, as is where they may plan or be required to or actually live as a family, and in what circumstances, if they do have children together.

    International obligations

11. No claim has been made, or evidence provided by the applicant, that he cannot return to China because he has any fear of persecution or harm, or that his return would be in breach of any of Australia’s international or non-refoulement obligations.  The applicant has submitted that he would be able and willing to return to China, easily find work there and that he would have medical care similar to Medicare arrangements in Australia.  The applicant provided the Tribunal with a copy of his Chinese passport, [numbered], with a date of expiry [in] 2022.

12. Whilst acknowledging that the applicant is claiming his sponsor/wife will suffer hardship if his visa is cancelled (and any future children they may have will also be affected) and that members of the applicant and sponsor’s families will also suffer hardship, the Tribunal is satisfied that no international obligations would be breached by Australia as a result of the applicant’s visa cancellation.

13. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

14. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

    Jennifer Cripps Watts
    Member