Wang (Migration) - [2018] AATA 5861

Wang (Migration) [2018] AATA 5861 (11 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Renyixu Wang
CASE NUMBER:  1835202
HOME AFFAIRS REFERENCE(S):           CLF2018/362122
MEMBER:James Lambie
DATE:11 December 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 11 December 2018 at 2:38pm

CATCHWORDS
MIGRATION – cancellation – Subclass 050 (Bridging (General)) visa – charged with offences – charges antedate the issuing of the bridging visa – implied temporal element – applicant holder of student visa at time of charges – grounds for cancellation exist – decision under review affirmed
LEGISLATION
Criminal Code (Qld)
Drugs Misuse Act (Qld)
Migration Act 1958, ss 116, 499
Migration Amendment (subclass 050 and subclass 051 Visas) Regulation 2013
Migration Regulations 1994, Schedule 2, r 2.43(1)(p)(ii)
CASES
Cheryala v MIBP [2018] FCAFC 43
Fattah v MIBP [2018] FCCA 2010
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that prescribed grounds exist under r.2.43(1)(p)(ii), namely, that the applicant has been charged with offences under Queensland law. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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.
The applicant was represented in relation to the review by his registered migration agent.
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
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)(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?
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)(p)(ii) is relevant.
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.
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.
At the hearing, I was advised by Mr Wang’s representatives that the drug possession charge will not proceed. Accordingly, my assessment of the existence of the prescribed grounds is confined to the seven remaining charges.
Mr Wang’s representatives conceded on his behalf, I think correctly, that any inquiry I might make as to whether s.116(1)(g) and r.2.43(1)(p)(ii) are enlivened is brought to an end once I am satisfied that the charges exist. They submitted, however, that that there is a live issue as to whether it was open to the delegate to cancel the visa in circumstances where the issuing of the charges antedates the issuing of the bridging visa. They submit that there is an implied temporal element in r.2.43(1)(p)(ii) which is directed towards regulating the behaviour of BVE holders in a prospective sense, i.e., from the time the visa is issued.
In support of this contention, I was taken to the explanatory statement accompanying the Migration Amendment (subclass 050 and subclass 051 Visas) Regulation 2013, and to subparagraphs (3) and (5) to paragraph 4.3 of Ministerial Direction No. 63. Both refer to the ministerial power to cancel a BVE where BVE holders engage in, or are charged with, criminal conduct. Therefore, it was submitted, Mr Wang as a holder of a valid student (subclass TU 500) visa and not a holder of a BVE, was not a person to whom r.2.43(1)(p)(ii) applied at the time the charges were issued.
The usual approach to statutory interpretation is to have resort to extrinsic material where the wording of the statute gives rise to some ambiguity. The regulation provides that a prescribed ground for cancellation exists where “the Minister is satisfied that the holder … has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.” It is difficult to see how an ambiguity arises on the plain meaning of these words. Were there an intention to apply a temporal element, it would have been a simple matter to provide for that by the insertion, on the one hand, of the word ‘since’ or, on the other hand, the words ‘at any time’. In the absence of any delimitation either way, I see no reason to insert one.
The other reason to depart from the plain words of the statute is if an absurdity arises on the application of those words.
In this regard I was taken to the decision of the Full Court of the Federal Court in Cheryala v MIBP [2018] FCAFC 43 and, in particular, to paragraph 41. The Court noted that “[w]ithout any limitation as to time, the “charge” which could lead to a person’s visa being cancelled could well relate to conduct, either within Australia or overseas, of considerable antiquity.” The Court found that r.2.43(1)(p)(ii), it seems including its temporal breadth, was not beyond power. It found (at 43) that the power to impose conditions upon the grant of approval to remain in the country – which necessarily, I think, includes the power to cancel – to be a broad one. This does not, to my mind, indicate an absurdity arising from the plain words of the statute. This was also the conclusion reached by Street J in Fattah v MIBP [2018] FCCA 2010,
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The primary considerations are:
·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and
·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The secondary considerations are:
·the impact of a decision to cancel the visa on the family unit;
·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;
·the circumstances in which the ground for cancellation arose;
·the possible consequences of cancellation; and
·any other matter considered relevant.
The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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’.
I must, and do, place considerable weight on the fact of the charges as a primary consideration.
There are no children under the age of 18 in Australia who would be affected by the cancellation, so no weight is given to the latter of the primary considerations.
I heard from Mr Wang as to his personal circumstances and the reasons he gave that the bridging visa should not be cancelled. I also received written and oral submissions from his representatives. That evidence and those submissions are discussed further below.
There are no members of Mr Wang’s family unit whose visa status is affected by the cancellation decision. I give no weight to this consideration.
A decision to cancel Mr Wang’s visa may result in him being detained under s.189 as he will no longer hold a valid visa. This would result in significant financial, emotional and psychological hardship arising not only from the fact of detention, but also arising from his inability to work and continue with his studies. I give considerable weight to this. I was made aware that Mr Wang’s mother has travelled to Australia to provide support to him and give some weight to the emotional hardship to which she would be subject if her son continues to be detained.
The circumstances which gave rise to the grounds for cancellation involve allegations of serious domestic violence. I give considerable weight to the nature of the offences charged. While I give some weight in Mr Wang’s favour to the fact that these charges have not been proved, there are factual matters which he does not dispute that indicate that there has been the commission of domestic violence, whatever the specific nature of it may be. Mr Wang accepted that, while he may have lost control, the situation did not arise from circumstances beyond his control.
All of the material before me indicates that Mr Wang has complied with all of the conditions applicable to his student visa and that his attitude to the Department has been cooperative. I give some weight to this in his favour.
I have had regard to the mandatory legal consequences which may flow from the cancellation of his visa, including his liability to detention and his inability to apply for further visas while in detention. I give a degree of weight to these considerations.
There are no international obligations that might be invoked or breached as a result of any cancellation.
Mr Wang and his representatives gave considerable emphasis to the evidence they have presented as to Mr Wang’s good character. I have given careful consideration to the numerous character references placed before the Tribunal. His representatives urged me to consider that the alleged offences arose from his naivety, immaturity and inexperience in relationships. I was also asked to take into account the candour with which he gave his evidence and his genuine remorse and shame. I give these matters some weight in his favour, but observe that some of his evidence in respect of the reasons for his actions were disturbingly self-justifying and that he showed very little regard for the impact of his actions on the alleged victim. These submissions and observations I have applied to my consideration of the circumstances giving rise to the grounds for cancellation.
I invited Mr Wang to give evidence as to the consequences for his future should the visa be cancelled. He told the Tribunal that, should he be permitted or required to return to China, he would face serious difficulties in obtaining the qualifications he has been working towards. Because he completed high school in Australia, he has not qualified for university registration in China. He claims that there is no provision for the recognition of his entry to and progress in his degree at the University of Queensland by any Chinese tertiary institutions. Thus, if he is required to abandon his studies, he will be required to requalify for entry to a Chinese university. In my view, this evidence is more fully applicable to the consideration of his substantive visa status, but I accord it some weight as another aspect of the hardship that might result from the cancellation of his bridging visa.
Mr Wang also gave evidence that his detention has disrupted his social network, including the voluntary community work he has been undertaking. I give this some weight in his favour.
Having regard to the primary and secondary considerations, I consider that the issuing of the charges (as a primary consideration) and the nature of the charges and the circumstances in which they arose (as a secondary consideration) to be matters of considerable gravity. While there are personal consequences for Mr Wang to which I have given some weight, on balance, the evidence favours the cancellation of the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
James Lambie
Senior Member