Wang (Migration)

[2019] AATA 814

Wang (Migration) [2019] AATA 814 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ke Wang

CASE NUMBER:  1710157

HOME AFFAIRS REFERENCE(S):           BCC2017/217463

MEMBER:Helen Kroger

DATE:13 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 13 February 2019 at 2:10pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – risk to the health, safety or good order of the Australian community – guilty plea to criminal offence charges – emotional stress on partner – financial hardship to applicant’s trading company – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116

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 5 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant 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. 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 applicant provided a copy of the delegate’s decision to the Tribunal and appeared before the Tribunal on 6 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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)(i). 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?

   s.116(1)(e) - risk to Australian community or individual

7. 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].

8. 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.

9. The applicant was granted his class TU subclass 572 Vocational Education and Training Sector visa on 11 June 2016 and was enrolled in a Certificate lV in Business, commencing with the prerequisite studies in English. He explained to the Tribunal at hearing that he travelled to Australia in April 2016 with his girlfriend, touring Melbourne, Sydney and the Great Ocean Road precincts and after his time here, liked the place and wished to study English so that he could improve his living arrangements with his girlfriend in Australia. He told the Tribunal that he wished to study English so that he could share some responsibilities with his girlfriend. He provided limited details about these classes, indicating that the course comprised of 4 three hour sessions each week. He advised that he could not remember how many classes he attended or the period of time that involved, indicating he couldn’t remember any details.  When clarification was sought on his interest in the Certificate lV in Business, he indicated that his primary interest was in learning English, and that he was interested in any course that helped him improve his English.

10. On the 22 March 2017 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) inviting him to comment on criminal offence charges for which he was awaiting a Court hearing. A response to the NOICC dated 11 April 2017 was provided by the applicant’s legal representative. In summary it stated that the Court hearing had been vacated and that the charges were to be dealt with on 27 July 2017 and that the charges would likely not amount to convictions. It claimed that the charges were untested allegations at that point and that a decision could not be made until after the Court dealt with the allegations.  It also claimed that the applicant was in a de facto relationship with Ms Shuya Liu for more than 12 months and that she was three months pregnant and that she would be subject to serious emotional stress and that the unborn child would be deprived of a father.

11. The criminal charges were heard before the Magistrate’s Court on the 27 July 2017 and the applicant confirmed at hearing that he entered a plea bargain, admitting guilty to  recklessly cause injury and assault in company. There was no conviction laid and a fine of $5000 was imposed by the Court.  Subsequent to this Court determination, the applicant was again charged and later convicted for drunk in a public place and unlawful assault in the Magistrate’s Court on the 19 October 2018 and was fined $2000 (National Police Certificate, folio 65).

12. The applicant was invited to comment on the above offences and in summary, claims that he was with friends on both occasions, that he had consumed a considerable quantity of liquor and that the circumstances at the time were misunderstood. He claims that during the first offence, that his friend’s behaviour was disrespectful and superior that led to them “trading blows”.  When asked to clarify the circumstances in relation to the second matter, he claims that the situation was misunderstood as he was with friends drinking at Crown Casino and that they started fighting in the carpark and the police got involved. He said that he could not recall the approximate date/month when this incident happened and could not furnish the Tribunal with any specific detail around the circumstances at that time. The applicant was provided an extension of time to submit any further information in relation to this incident, and on the 12 February 2019, through his agent, indicated that they had no further evidence to provide on this matter.

13. A Psychological report was submitted, dated 17 July 2017, prepared pre-sentencing for the Court’s consideration on the 27 July 2017, and a copy was made available to the Tribunal. In summary, the report indicated that Mr Wang recognised that he must avoid alcohol and that he was willing to do that. The applicant was invited to comment on this report and if he had undertaken a subsequent psychological assessment for the Court’s consideration of the charges that were before it on the 19^th October 2018. The applicant submitted that he didn’t believe that he had a psychological problem, that he didn’t believe he had issues when the first report was written and that he didn’t have any issues that required a second report.

14. In providing oral evidence to the Tribunal the applicant consistently indicated that there was a “misunderstanding” in relation to the first recklessly cause injury charge that he pleaded guilty to and the later unlawful assault and drunk in a public place convictions, indicating no remorse for the circumstances. The applicant explained to the Tribunal that he had submitted an application for a Partner visa prior to his student visa cancellation, and that he wanted to be able to study English, to support his family circumstances.

15. The Tribunal considers that the behaviour and activity in which the applicant has engaged in and charged, is extremely serious. The Tribunal has considered the guilty plea entered by the applicant, to the recklessly cause injury and assault in company, and whilst a conviction was not recorded, finds the fine of $5000 a substantial fine. The Tribunal has also considered the conviction for unlawful assault and drunk in a public place, with an associated fine of $2000 significant, given the latter assault took place less than 12 months after the first charges and the applicant’s consistent representations that the circumstances were “misrepresented”. The migration agent indicated in a written statement on the 12 February 2019, that he had contacted the lawyers for the applicant, who represented him on the second matter, that they had spoken to Mr Wang by phone, indicating that they had not met him and that they were unable to provide any further information about the charges as their attempts to ascertain information from the applicant at the time was unsuccessful as he couldn’t communicate in English. The Tribunal has given regard to the availability of interpreters to enable parties to communicate and the claim that the lawyers spoke to the applicant over the phone about the matter, with no indication that they met before the Court case or on the day the case was considered by the Magistrate or in the Courtroom. The applicant provided limited evidence in regard to this matter at hearing, submitting that he started fighting with friends when they wouldn’t allow him to get in a car, and that the police became involved. The Tribunal has considered the brief time that has elapsed between the two incidents along with the applicant’s consistent evidence that indicates that the applicant does not believe he has  a problem and that he does not give any significance to the either the convictions or substantial fines imposed on him by the Magistrate’s Court, either the substantial fine imposed on 28^th July 2017, or the second incident that he was convicted for less than 15 months later.

16. The Tribunal is satisfied that the applicant poses a risk to the good order of the Australian community given the serious nature of the fines and convictions and the time that elapsed before the second matter took place, and the applicant’s consistent submission that the circumstances were misrepresented. Whilst, the applicant submitted an unsigned and undated letter of apology to the Tribunal (folio 47), that explains that he drank too much, did not have good control of his emotions and had completed an anger management course, he was provided the opportunity to indicate his contrition or remorse to the Tribunal and consistently indicated that he or the events were “misunderstood”.

17. Whilst the Tribunal is satisfied that both events occurred when the applicant was under the influence of alcohol, the applicant has been convicted for assault, after pleading guilty to a recklessly causing injury charge in the previous year. The applicant has demonstrated behaviour which may pose a risk to the Australian community and has pleaded guilty on the two separate occasions. The Tribunal is satisfied that the applicant may pose a risk to the safety of the Australian community. Therefore I am satisfied that there are grounds for cancellation of the applicant’s subclass 572 visa under section 116(1)(e)(i) of the Migration Act 1958.

18. 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 power to cancel the visa should be exercised.

    Consideration of discretion

19. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

20. The applicant first came to Australia on a tourist visa and was granted a class TU subclass 572 Vocational Education and Training Sector visa for the purpose of studying in Australia. At the time of the delegate’s decision he continued to be enrolled in a Certificate iv in Business. In his oral evidence to the Tribunal, the applicant submitted that his primary interest was in studying English, though his enrolment was for a Certificate iv in Business. He indicated that he didn’t have a strong preference for the course, as his preference was in the English component. He was unable to clarify the name of the education provider, explaining that he couldn’t spell the name and submitted that he couldn’t remember details and he thought that he had attended and studied classes for a couple of months. He explained that the course consisted of 4 classes per week. The Tribunal has carefully considered the applicant’s responses at hearing and finds that his inability to articulate details about the education provider, his participation in the course and the length of time he attended not plausible, as he should have been able to recall such aspects. The Tribunal has considered the reasons for study as indicated by the applicant, giving consideration to the primary reason the applicant indicated he was studying, that is to learn English. The visa was granted for an enrolment in Certificate lV in Business and the applicant did not indicate any particular interest in pursuing that part of the course.

21. In considering the purpose of the visa holder’s travel and stay in Australia and need to remain in Australia, the Tribunal has regard to the evidence as outlined above, and whilst satisfied that the applicant is interested in continuing English, has regard to his stated limited interest in Business per se, and his indication that his primary interest was in learning English, notwithstanding the fact he could provide limited information about the course and his attendance.  The Tribunal recognises that there are various ways in which the applicant could pursue this interest, and that it is not limited to a course requiring a 572 visa. It has also considered the limited nature the applicant could provide the Tribunal about the course. Accordingly the Tribunal gives this limited weight in favour of the applicant, and more weight to consideration of the cancellation of the visa.

22. The applicant claims to be in a de facto relationship of four years standing. At hearing, he indicated that he first came to Australia with his girlfriend in April 2016 and in the submission made on his behalf by Nevett  Ford lawyers, dated 11 April 2017, he claims to have been in a de facto relationship for more than 12 months. Whilst there is nothing before the Tribunal to indicate that he is not in a relationship, the evidence is inconsistent with regard to the length of the relationship. The Nevett Ford submission details the applicant’s de facto’s three month pregnancy and he confirmed at hearing that she had miscarried in April 2018, a period of 12 months after the claimed pregnancy.  Whilst the dates provided are not plausible, the Tribunal accepts the evidence provided that the applicant is in a de facto relationship and that whilst his partner may have been pregnant, that she has miscarried and they have not had a child together.  Given these circumstances, it is only relevant to consider the impact on his partner, an Australian citizen as he does not have a child.

23. As outlined above, the applicant applied for a class UK subclass 820/class BS subclass 801 Partner visa on 12 April 2017, before his student visa was cancelled. The Tribunal has regard to this and has considered the migration status of the applicant who holds a Bridging Visa E and finds that an adverse determination on the student visa has no direct influence on his Partner application. The Tribunal has considered the evidence before it in relation to the potential hardship that may be caused to the applicant, and the effect on his de facto, and is satisfied that a potential cancellation of his student visa does not have a material effect on his Partner visa that was submitted prior to his visa cancellation, and accordingly, the Tribunal assigns no weight to exercising the discretion to cancel the visa.

24. The applicant indicated that he has a trading company that is based in China, a business that his brother operates out of China, of which he is the major shareholder. He explained to the Tribunal that the trading company has annual earnings of $1,000,000, and that these earnings are distributed between he and his brother, with him receiving a majority share. The company trades in red wine, Chinese rice wine and vehicle parts.  Whilst invited to comment, the applicant did not indicate any potential financial hardship and accordingly the Tribunal gives some weight to this aspect in favour of exercising its discretion to cancel the visa.

25. In response to the Tribunal’s questions seeking clarity regarding the criminal charges and convictions that were imposed upon the applicant, he consistently asserted that they were fights between friends, that no-one was hurt and that they were misrepresented. At no stage did the applicant indicate his appreciation of the substantial nature of the charges and convictions, notwithstanding his guilty plea, or his remorse at the circumstances. The Tribunal has given careful consideration of the applicant’s comments in relation to the criminal charges, indicating his attitude to the charges and convictions, the significance of the offences and the behaviour of the applicant that led to the second incident that he was convicted for within 12 months of his original court case.

26. The applicant continues to attest to his legal circumstances as being misrepresented rather than admitting he has committed unlawful conduct. The circumstances in which the grounds for cancellation have arisen were not beyond the applicant’s control and are considered extremely serious as the applicant has demonstrated behaviour which may pose a risk to the safety of the Australian community.

27. The Tribunal has considered the applicant’s future hopes, to stay in Australia with his de facto partner whilst studying English, and has considered these in the context of the seriousness of the charges and the applicant’s implausible explanations that the circumstances were misrepresented and assigns no weight in favour of the applicant. The Tribunal assigns significant weight to the significance of the breach and finds these considerations outweigh any weight given in favour of the applicant and not cancelling the visa.

28. There is nothing before the Tribunal to indicate there are international obligations to consider.

29. Whilst the Tribunal has considered the reasons put forward by the applicant for not cancelling the visa, the charges and conviction are of a serious nature, offences that the applicant has pleaded guilty to in the Magistrates Court and which the Tribunal finds poses as a serious risk to the Australian community.  The Tribunal has considered the circumstances as a whole and concludes that the visa should be cancelled.

    DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

   Helen Kroger
   Member