Tian (Migration)

[2021] AATA 1204

Tian (Migration) [2021] AATA 1204 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yu Tian

CASE NUMBER:  2017090

HOME AFFAIRS REFERENCE(S):          BCC2020/2712569

MEMBER:John Cipolla

DATE:2 March 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 010 (Bridging A) visa.

Statement made on 02 March 2021 at 9:55am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – convicted of an offence – dangerous driving occasioning death – consideration of discretion – circumstances giving rise to non-compliance – no criminal antecedents – intensive community corrections order – truly remorseful for actions – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 November 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The evidence indicates that on 27 July 2020 the applicant lodged an application for a Subclass 500 Student visa.  The evidence indicates that the applicant was issued with a Bridging A visa, pending the outcome of his student visa application.

3. On 4 November 2020 the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging A visa on the basis that he had been convicted of a criminal offence in the state of New South Wales. The applicant was invited to respond to the NOICC, namely whether he agreed that the ground to cancel his visa under s.116(1)(g) existed, and whether having regard to a range of discretionary considerations his visa should be cancelled. The applicant provided a response to the Department on 19 November 2020. The delegate considered the response.

4. On 24 November the delegate cancelled the applicant’s Subclass 010 Bridging A visa under s.116(1)(g) on the basis that the applicant had been convicted of a criminal offence in the state of New South Wales, namely dangerous driving occasioning death. The evidence indicates that the applicant was convicted in the District Court at Parramatta on 18 September 2020, and was sentenced, to a 2 year term of imprisonment, which is to be served in the community by way of an intensive corrections order.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. The applicant appeared before the Tribunal on 25 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s aunt Xiu Ling Sun.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. At the outset of the review hearing the Tribunal went into considerable detail about the issues in the review and the factors that led to the cancellation of the applicant’s visa.  The Tribunal also made extensive reference to merits review process and the prospective outcomes of the review.

8. The applicant was represented in relation to the review by his registered migration agent. The applicant’s agent provided an extensive pre-hearing submission dated 18 February 2021 which included a number of annexures, including a statement from the applicant. This submission and the annexures have been duly considered by the Tribunal for the purposes of this review.

9. 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

10. 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(g). 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?

11. A visa may be cancelled under s.116(1)(g) if the Minister 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.

12. As noted, the evidence before the Tribunal indicates that on the day of the accident 16 August 2018, the applicant was on route to his workplace at around 6am in the morning. The victim, Lu Ying was at a bus stop and the applicant claims that he could not interpret her intentions when she stepped out in front of the vehicle he was driving and was struck, resulting in her sustaining serious injuries. The victim died in the Royal Prince Alfred Hospital as a result of her injuries on 10 September 2018.

13. The evidence before the Tribunal indicates that the applicant stopped and rendered assistance to the victim and had a passer-by who spoke English, call an ambulance. The evidence also indicates that the applicant was co-operative with the police.

14. The applicant was subsequently charged with dangerous driving occasioning death along with negligent driving occasioning death. As these are indictable offences they were dealt with in the District Court of New South Wales at Parramatta, and as has been noted above the applicant was convicted in that court of these offences, and sentenced to a 2 year period of imprisonment, with the judge determining that it should be served by way of an intensive corrections order for 2 years, to be served in the community. The date of conviction was 18 September 2020.

15. As the applicant has been convicted of an criminal offence in the state of New South Wales, the Tribunal finds that the grounds for cancellation of the applicant’s visa under s.116(1)(g) of regulation 2.43(1)(oa) exist.

16. The applicant concedes in submissions made to both the Department and the Tribunal that the grounds for cancellation of his visa under s.116(1)(g) exist.

17. 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

18. The Tribunal has had regard to the relevant discretionary guidelines with regard to its consideration of whether or not the applicant’s visa should be cancelled.

19. These considerations include considerations of the following factors.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

    ·the extent of compliance with visa conditions

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

    ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

    ·past and present behaviour of the visa holder towards the Department

    ·whether there would be consequential cancellations under s.140

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

    ·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

    ·if it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties

    ·any other relevant matters

20. The applicant arrived in Australia on 26 December 2016 when he was 26 years old. The applicant arrived as the holder of a Student visa. The applicant advised the Tribunal that he completed high school studies in China and then completed a Bachelor degree, in Information Technology, at a technological University in Tianjin. The applicant then obtained work in the finance industry in China.

21. The applicant advised the Tribunal at the review hearing that he applied for Student visa to study in Australia because he had heard that Australia offered a better education environment than was available to him in China. The applicant stated that in China if you do not have high level qualifications it is very difficult to obtain employment in that country. The applicant chose Australia because it was a safe country with respect for human rights. The applicant stated that at the time of applying for his Student visa he had to provide evidence of sufficient financial means to meet his cost of living expenses and the cost of his education expenses in Australia for the duration of his studies. The applicant stated that his parents provided the relevant evidence to the Department on his behalf. The applicant advised that he was an only child and his parents had high expectations of him.

22. The applicant stated that when he first arrived in Australia, he commenced studies in English language at an institution in Newcastle in New South Wales. The applicant advised that he was very lonely in Newcastle and struggled to adapt to the Australian way of life on his own. The applicant stated that as a consequence he decided to relocate to study in Sydney, where he had an uncle and aunt. The applicant stated that he then enrolled in a number of courses but struggled facilitating a release from the education facility in Newcastle. The applicant stated he found an agent who was able to help him and the applicant then enrolled in Certificate IV studies in Marketing and Communication which he commenced in October 2017, and successfully completed in August 2018. The applicant advised that after the completion of this course he wanted to undertake studies in Human Resources. The applicant stated that the college that he was attending for the Marketing and Communication course did not offer studies in Human Resources changed institutions. The applicant eventually enrolled in a Diploma of Information Technology which he commenced in April 2019 and completed in April 2020. The applicant stated that he successfully completed the studies and enrolled in a Diploma of Human Resources Management, which commenced in July 2020, however, in November 2020 his Bridging A visa was cancelled due to his criminal convictions.

23. The applicant advised the Tribunal that he was hoping to complete his Diploma of Human Resources Management and that it was his intention to then complete Bachelor qualifications and Masters qualifications in this field. The applicant stated that he hoped to be finished his studies in 2023 at which time he will be 33 years old. The applicant stated that if he returned to China with these qualifications the prospect of finding reputable employment would be greatly enhanced.

24. The applicant advised the Tribunal that he had a compelling need to remain in Australia for a number of reasons. First and foremost was his desire to complete his studies including the obtainment of Masters qualifications in Australia. Secondly the applicant stated that he was the subject of an Intensive Community Corrections Order for two years which was in place until September 2022. The applicant stated that as a result of the motor vehicle accident that he was involved in which led to the death of a pedestrian that he feels a moral obligation to remain in Australia and complete the intensive community corrections order. In addition to this the applicant stated that as a result of the motor vehicle accident he had been experiencing psychological trauma and stress and had been seeing a psychologist for an extended period. The applicant provided evidence corroborative of this to the Tribunal. The applicant advised the Tribunal that he believed it was in his best interests to remain in Australia in order to continue with psychological counselling because it was assisting him to cope with the lingering effects of the accident for which he suffered ongoing trauma and depression.

25. The evidence before the Tribunal indicates that the applicant has attempted to comply with the conditions attached to his Student visas that he has held since his arrival in December 2016. The applicant’s representative noted in a prehearing submission that “despite his multiple changes to enrolled courses, he did try to maintain ongoing registration/enrolment. In light of his recent visa cancellation, he has taken all the initiatives to try to regularise his current visa status in Australia by applying for a Bridging visa E immediately after the visa cancellation and he is engage legal professional help to assist him in liaising with the Department regularly to chase up the Bridging visa E status.”

26. The applicant once again advised the Tribunal that he had a strong desire to complete his studies in Australia and obtain a Masters degree. The applicant stated that the completion of a Masters degree would open up a whole range of job opportunities to him in China.

27. The applicant stated that his family had expended a lot of money on supporting him to study in Australia and to meet his cost of living expenses. The applicant stated that if his Bridging A visa remained cancelled and he was not able to meet his study objectives in Australia that his parents would be bitterly disappointed.

28. The applicant advised the Tribunal that since the traffic incident that resulted in the death of a pedestrian in August 2018 that he had felt extremely regretful. The applicant stated that he had been under a lot of stress, suffered with insomnia and anxiety and that he had been obtaining a great deal of support from a psychologist that he had engaged with since the accident. The applicant added that he felt compelled to complete his intensive community corrections order in Australia. The applicant provided the most recent report from his treating physician Dr Natalia Yee. Dr Yee advises in her report dated 23 February 2021 that the applicant suffers from extremely severe depression, anxiety and stress as a consequence of the incident in August 2018 and ongoing uncertainty around his visa status and his inability to complete his studies in Australia.

29. The evidence before the Tribunal indicates that the circumstances in which the grounds for cancellation arose were as follows. Early on the morning of 16 August 2018 the applicant was driving to his workplace through the suburb of Ashfield. The evidence indicates that at the time that the applicant was operating the vehicle he was not under the influence of alcohol or illicit substances. The evidence indicates that the applicant was driving within the requisite speed limit at the time of the accident. The evidence indicates that the victim was at a bus stop and the applicant was not able to interpret her intentions when she suddenly stepped out in front of his vehicle. The applicant advised that he was not able to take evasive action and as a consequence the victim was struck sustaining serious injuries. The evidence indicates that the victim died as a result of her injuries in hospital on 10 September 2018. The evidence before the Tribunal indicates that the applicant stopped at the scene of the accident and rendered assistance to the victim and an ambulance was called. The evidence also indicates that the applicant was cooperative with the police.

30. The evidence before the Tribunal indicates that the applicant in his dealings both past and present with the Department has been cooperative. When the applicant was served with a NOICC the applicant responded comprehensively to this notice. There is no evidence before the Tribunal to indicate that the applicant has not been cooperative in his dealings with the Department.

31. The applicant is a single male and consequently there are no members of the applicant’s family unit whose visa would be consequentially cancelled as a result of the cancellation of the applicant’s visa.

32. The Tribunal notes that there are a number of mandatory legal consequences that flow from the cancellation decision. Upon the cancellation of the applicant’s visa on 24 November 2020 the applicant became an unlawful noncitizen and needed to regularise his immigration status by applying for a Bridging E visa which he did. As a consequence of the cancellation of the applicant’s visa he is now the subject of Section 48 of the Migration Act and is not able to apply for any other visas from within Australia. If the applicant was to depart Australia whilst being an unlawful noncitizen, or holding a Bridging E visa, the applicant would be subject to Public Interest Criterion 4014 which prohibits the applicant returning to Australia for three years from the date of his departure.

33. There is no evidence before the Tribunal that Australia would be in breach of any international obligations as a consequence of the ongoing cancellation of the applicant’s visa. In the prehearing submission received by the Tribunal, the applicant’s representative notes that the applicant does not claim any non-refoulement protection obligations.

34. The evidence indicates that the applicant arrived in Australia in December 2016 to take advantage of the Australian education system and to obtain a range of qualifications that would assist him with employment opportunities when he returned to China.

35. The evidence indicates that the applicant has completed a number of courses of study and is hoping to complete a Diploma of Human Resource Management and then complete both Bachelor studies and Masters studies in this field to give him a competitive edge in the labour market when he returns to China.

36. The applicant has no criminal antecedents.  The evidence indicates that the matter giving rise to the applicant’s conviction for dangerous driving was a very serious one that led to the death of a pedestrian.  The evidence indicates that the applicant was not affected by alcohol or illicit drugs.  The evidence further indicates that the applicant was driving within the speed limit at the time.  The evidence indicates that the applicant stopped and rendered assistance to the victim, a woman, who had crossed the road not utilising available pedestrian crossings.  The applicant advised that he misinterpreted her intentions when she stepped onto the road from a bus stop and that he was not able to stop the vehicle in time leading to her sustaining injuries for which she lost her life some weeks later in hospital.

37. The evidence indicates that the applicant has been profoundly affected by the accident and its aftermath and has suffered with depression, anxiety and insomnia since that time.  The applicant has engaged with psychiatric services since that time to address his mental health and the applicant is deriving support and benefit from this.

38. The applicant is also currently serving an intensive community corrections order for two years which will expire in September 2022.  The applicant wants to complete this sentence.

39. The evidence indicates that the incident on 16 August 2018 has had a profound and adverse impact on the applicant and the evidence indicates that the applicant is truly remorseful for his actions, actions that will live with him for the rest of his life. The evidence of the applicant is that he has not driven a motor vehicle since the incident and has no intention of doing so.

1. The evidence indicates that the applicant’s parents have expended a significant amount of money on the applicant and the applicant does not want to disappoint them and the investment they have made in him. The applicant wishes to return to China with higher degrees to enhance his employment prospects.

2. The Tribunal has considered the relevant discretionary factors both singularly and cumulatively and has determined that the cancellation of the applicants Bridging A visa should be set aside.

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

   DECISION

4. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

   John Cipolla
   Senior Member