Wang (Migration)

[2019] AATA 1609

Wang (Migration) [2019] AATA 1609 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Renyixu Wang

CASE NUMBER:  1833149

HOME AFFAIRS REFERENCE(S):           BCC2018/4108631

MEMBER:James Lambie

DATE:30 January 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 30 January 2019 at 2:24pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – criminal charges against applicant – risk of visa holder to health or safety of Australian community – self-incrimination – decision under review affirmed

LEGISLATION

Criminal Code (Qld)
Drugs Misuse Act (Qld)

Migration Act 1958 (Cth), ss 48, 116, 189, 198
Migration Regulations 1994 (Cth), PIC 4013

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 9 November 2018 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 delegate cancelled the visa under s.116(1)(e)(i) on the basis that Mr Wang’s actions indicated that his presence in Australia is, or may be, a risk to the safety 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 appeared before the Tribunal on 7 December 2018 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?

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. Mr Wang has been charged with seven offences under the Criminal Code (Qld) and one under the Drugs Misuse Act (Qld). The charges under the Criminal Code all arise from a series of events alleged to have occurred on 11 July 2018. The Tribunal obtained the production of the Queensland Police charge sheets and court briefs under summons in relation to an earlier application by Mr Wang. His representatives advised the Tribunal that all of this material has already been produced to them.

10. The offences with which Mr Wang has been charged are as follows:

    1)Enter premises with intent;

    2)Unlawful stalking – domestic violence offence;

    3)Deprivation of liberty; unlawfully detain or confine – domestic violence offence;

    4)Assaults occasioning bodily harm – domestic violence offence;

    5)Robbery – domestic violence offence;

    6)Distribute prohibited visual recordings – domestic violence offence;

    7)Possess dangerous drugs;

    8)Computer hacking and misuse and cause detriment/damage or gain/benefit – domestic violence offence.

11. At the hearing, I was advised by Mr Wang’s representatives that the drug possession charge will not proceed.  Accordingly, my consideration of the ground for cancellation is confined to the seven remaining charges.  In addition, his representatives advised that he would be invoking his privilege against self-incrimination in respect of certain particulars of the charges.  The hearing was conducted on the basis that there were minimal questions to Mr Wang on the elements of the facts alleged in the charges and, where I considered it necessary to touch upon them in order to understand Mr Wang’s circumstances, I prefaced the question with a reminder that he was not obliged to answer.  In the event, no objection was taken at the hearing to the questions I put.

12. The question of whether the ground for cancellation is established under s. 116(1)(e) when there are unproven criminal charges pending against a visa holder was considered in Gong (supra) at [41] to [63].

13. Subsection 116(1) speaks of a risk that the presence of a visa holder ‘is or may be’ to the health or safety of the Australian community. There is no definition of risk in the act or regulations and accordingly the plain English meaning applies: the chance of injury, or loss, or hazard.

14. In assessing whether the ground is established, the Tribunal must have regard to the information and evidence available at the time of the review decision, including the circumstances of the applicant at that time.

15. In considering the question of whether a visa holder may convey a risk within the meaning of the subsection, it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk.

16. When charges are laid by police, it can be inferred that the police had some basis for laying the charges but it cannot be concluded, simply on the existence of the charges, that the basis for the charges are reasonable. Nor can the Tribunal undertake a meaningful assessment of the prospects or strength of the charges in the absence of undertaking its own assessment of the evidence or even the results of a concluded committal process.

17. The role of the tribunal in assessing the question of risk for the purposes of subsection 116(1)(e) is difficult when there are unproven charges pending before the court, particularly when those charges are very serious, as they are in this case. The questioning of an applicant must be approached with considerable caution and with full regard to the applicant’s privilege against self-incrimination. Eliciting such information, even following a warning, is unlikely to yield a meaningful response and it would be unreasonable in the circumstances to draw a negative inference from such a response.

18. It would therefore be appropriate to give the existence of charges weight when assessing the risk but the amount of weight is a difficult question. Charges that are very serious in nature and go to the centre of the health, safety and good order of the Australian community may carry significant weight well when assessing risk for the purposes of establishing whether the ground for cancellation exists. This is consistent, as observed by Smith J, with the logic that underlies the ‘what if I am wrong’ test in refugee law. Therefore, the more serious the charges, the more weight should be given to the existence of the charges. Where the consequences of the risk are likely to be serious it may be appropriate as an exercise of reasonable speculation to give the charges significant weigh.  If charges are not serious, it may be appropriate to give unproven charges less weight in assessing the risk.

19. Nevertheless, evidence of charges will be one of several factors that should be taken into account in making the assessment of whether there may be a risk to the community.  All the available information must be considered, including whether the visa holder is on bail.  The fact that a court, after considering the available evidence, refuses bail would carry considerable weight for the tribunal in assessing risk although that may be a question about whether there is or may be a risk to the Australian community when the visa holder is incarcerated. If a court or bail authority grants bail but imposes strict conditions this may also carry considerable weight on the basis that the court or bail authority has assessed the risk is sufficient to warrant conditions. On the other hand, the fact that bail was granted without condition would not of itself support a finding that the applicant is or may not be a risk because the test under the bail act is whether there is an unacceptable risk which is measured in terms of whether the accused will, for instance, commit a serious offence or endanger the safety of individuals, not whether they may do so.

20. Ultimately the question of whether a person is or may be a risk to the Australian community for the purposes of subsection 116(1)(e) is one of fact based on all of the information available to the Tribunal at the time of its decision. This information may include the existence of charges, the nature of those charges, whether the visa holder has pleaded guilty to those charges or whether the visa holder has been committed for trial, whether the visa holder has been granted bail and, if so, the basis of any conditions imposed and, finally the personal circumstances of the applicant and how those circumstances may impact on any risks.

21. Mr Wang arrived in Australia in 2014 on a student visa.  He completed his secondary education at Indooroopilly State High School in 2017 and was accepted to study for a degree in music at the University of Queensland, commencing in 2018.  It was as a first-year university student that he met the complainant. The complainant was six years’ Mr Wang’s senior and a postgraduate student.  He described her as his first serious girlfriend.  Mr Wang’s evidence was that the relationship was brief but intense and lasted perhaps 7 weeks.   According to him, they broke up and reconciled about 3 weeks into the relationship and finally about a month later, following which he was charged with the offences listed in paragraph 10.

22. The complainant, on Mr Wang’s account, was more worldly and sophisticated than he.  This was a cause of conflict in the relationship because he was very uncomfortable with her having experience with other men and the level of social contact she had with other men.  He first broke off the relationship after he perceived that she had flirted with someone on a short holiday they had taken together in Adelaide. They reconciled, on his account, when she tearfully sought his forgiveness.  This took place in late June or early July.

23. The incidents described in the charge sheet are alleged to have occurred on 11 July.  Mr Wang accepted, without admitting the particulars alleged, that certain events occurred.  He did not dispute that made video recordings of the complainant in degrading circumstances, or that he posted these videos to social media, or that he caused the transfer of the contents of her bank account to his own account. He denied that there was any physical violence. He conceded that his actions in respect of the matters he admitted were inappropriate.

24. Mr Wang explained his conduct as follows.  The complainant came to visit him at in a soundproof music room at the University at his invitation.  They had another argument over her familiarity with male friends and he told her that he intended to end the relationship.  She begged him to reconsider and asked him whether he could punish her in some other way.  The actions he admitted he undertook (i.e, taking and posting the videos and transferring her money to his account) were the ‘punishments’ he deemed appropriate at the time and which he now describes as ‘over the line.’  When asked where his entitlement to inflict punishments derived from, his response was that he has reflected on this and considers such conduct to be inappropriate.  He said his reflection has taught him to adjust his emotional responses.

25. I cannot give Mr Wang any credit for his explanation.  His evidence was very largely self-serving.  The remorse he expressed was entirely directed to the consequences for himself and at no time did he express any concern for the humiliation and distress his admitted actions caused to the complainant.  Only under questioning did he put forward the view that to inflict ‘punishment’ of this nature was wrong.  He did not resile from a view that he had in some way been wronged by the complainant or that the money he had expended on the relationship should be recoverable in those circumstances.  His representative conceded that he had expressed no empathy with the plight of the complainant.

26. Turning to the question as to whether the presence of Mr Wang 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 community, I have given consideration to the existence and nature of the charges, Mr Wang’s intention to plead not guilty, the basis upon which bail was granted and Mr Wang’s personal circumstances.  I have given careful consideration to his evidence and to the submissions made on his behalf, including the many character references and the psychological report.

27. I give significant weight to the serious nature of the charges and to the circumstances in which they are alleged to have occurred. I give minimal weight to the professed emotional immaturity of the applicant, which I consider neither to mitigate the risk he may pose to the community nor to have been shown to be significantly improved from the date of the commission of the alleged offences. Any weight to which I might give his intended plea of not guilty is largely discounted by the existence of facts he does not dispute which indicate, on any view, cruel and degrading treatment of the complainant. I give limited weight to the fact and conditions of his bail because of the materiality to that decision, and to compliance, of the complainant having left Australia. For the reasons stated in paragraph 19, there is also a significant difference between the assessments for bail and for the purposes of s. 116(1)(e). It was submitted on his behalf that this was an isolated incident relating to a particular person who is no longer in Australia, and that therefore no risk for the purposes of the Act arises. I reject this submission. The evidence before me of controlling, obsessive, vindictive and violent behaviour is strongly suggestive of a risk to any women with whom he may form even a very short-term relationship. The psychological report supports this view, as did Mr Wang’s own evidence in which he cast himself very much as a victim and expressed no empathy for the complainant.

28. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

29. 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’.

30. The purpose of Mr Wang’s travel and stay in Australia was to complete his secondary education and undertake tertiary studies in his chosen discipline of music.  I heard evidence of his passion for music and his dedication to his studies.  I also heard that, were his visa to be cancelled, he would find it extremely difficult to resume his studies in China.  This is, I heard, because acceptance in a Chinese university would require the completion of secondary studies in a Chinese high school.  Apparently, there are no means by which he can transfer or receive credit in respect of the tertiary studies he has undertaken in Australia.  Given the importance Mr Wang attaches to this fact, I am surprised that there was no direct evidence on this matter by a suitably qualified person in Australia or China.  The evidence presented by his parents, godfather (who is a lawyer in China) and academic referees all attested to these difficulties by way of a stated general understanding of them.  Given the large number of Chinese students in Australia, including temporary placements (for example, the complainant), I find the lack of any mutual recognition difficult to understand.  Nevertheless, in the absence of evidence to the contrary, I accord substantial weight to this factor in favour of Mr Wang’s application.

31. The evidence before me was that Mr Wang has been a diligent student and has complied with all the relevant conditions attached to his student visa and I give this matter some weight in his favour.

    I have given careful consideration to the financial, psychological and emotional hardship that may be caused to Mr Wang and his family by the cancellation of the visa.  I have given particular attention to the consequences that may flow to him in respect of the resumption of his tertiary studies, referred to in paragraph 30.  I have also considered the consequences for Mr Wang in terms of the disappointed expectations of his family and friends, and the financial consequences for his parents.  I have given these matters some weight in favour of the application.

32. The circumstances in which the ground of cancellation arose are discussed at paragraphs 9, 10 and 21 to 25 above. The charges are objectively very serious and involve violence against a woman. It was submitted on behalf of Mr Wang that to make a decision before any determination as to his guilt would be premature and contrary to the presumption of innocence. My views as to a finding in respect of s. 116(1)(e)(i) as opposed to the functions of a criminal proceeding are discussed at paragraphs 18 to 20 above and inform the conclusion expressed at paragraph 28. Notwithstanding the submissions made in respect of Mr Wang’s emotional immaturity and a ‘loss of control’, there was no evidence advanced in respect of any psychiatric or psychological condition that might permit a finding that the ground for cancellation arose from any circumstances beyond Mr Wang’s control. I therefore give this factor no weight in Mr Wang’s favour.

33. The evidence before me is that Mr Wang has been cooperative in his dealings with the department and I accord this some weight in his favour.

34. There are no consequential cancellations that would flow from the cancellation of Mr Wang’s visa and I give this matter no weight.

35. I have considered the mandatory legal consequences for Mr Wang that apply to the cancellation of his visa:  that he would become an unlawful non-citizen and may be liable for detention under s. 189 and possible removal under s. 198.  I am conscious that, pending the determination of his criminal matter, that it may not be possible to fix the duration of any detention with any certainty.  I have taken into account that Mr Wang may have limited options for applying for further visas under s. 48 and that the application of PIC 4013 may preclude the granting of certain visa for a three year period.   I give these matters some weight in his favour.

1. On the material before me, no international obligations are invoked.  No other relevant matters have been raised.

2. I have given the greatest weight to the grounds for cancellation.  These, on my assessment, very considerably outweigh the discretionary factors.

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

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   James Lambie
   Senior Member