Wang (Migration)

[2020] AATA 6115

Wang (Migration) [2020] AATA 6115 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sheng-De Wang

CASE NUMBER:  2003592

HOME AFFAIRS REFERENCE(S):          BCC2019/6126407

MEMBER:Ann Duffield

DATE:5 August 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 5 August 2020 at 2.05pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – risk to the safety of the Australian community – applicant convicted of domestic violence offences – false or misleading information in a previous visa application – limited English proficiency – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 February 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 delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of several domestic violence offences. 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 via teleconference on 28 July 2020 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)(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?

   s.116(1)(g) - prescribed ground

7. 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.

8. The applicant is a citizen of Taiwan born on 23 July 1987. He is unmarried.

9. He arrived in Australia on a working holiday visa with his de facto partner on 6 August 2018. That visa ceased on 6 August 2019. On 27 July 2019 he applied for a student visa and was granted a Bridging visa in relation to that application. On 21 October 2019 the delegate refused the student visa application because the applicant had provided false or misleading information in relation to that application. He has applied to the AAT for a review of that decision.

10. He was granted a bridging visa A, subclass 010, on 27 July 2019. That visa was cancelled on 19 February 2020. It is the cancellation of that bridging visa that is subject to this review.

11. The applicant was subsequently granted a bridging visa E Subclass 050 on 24 June 2020 which remains in effect.

12. The applicant was convicted in New south Wales on 18 November 2019 of the following offences:

    a.Stalk intimidate intend fear, physical etc harm (domestic violence) – 2 offences – 12 months conviction on a conditional release order concluding 17 November 2020.

    b.Common assault – domestic violence – two offences – 12 months conviction on a conditional release order concluding on 17 November 2020.

    c.Stalk intimidate intend fear physical etc harm – domestic violence - $300 fine

    d.Stalk intimidate intend fear physical et harm – domestic violence – $300 fine

    e.Common assault – domestic violence – 2 offences – 12 months conviction - conditional release order concluding on 17 November 2020.

13. The applicant has confirmed his convictions with the Tribunal.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists, relying on the prescribed Regulation 2.43(1)(oa). That regulation states that the Minister may cancel a visa, in the case of the holder of a temporary visa, if the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)). 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

15. The Tribunal agreed at the end of the hearing to provide the applicant with further time to provide a written submission to address its particularised concerns which were discussed at length with him and his representative. The Tribunal received that submission on 3 August 2020 and the Tribunal has included those responses, where relevant, in the discussion below.

16. 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’.

17. The Tribunal has considered 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.

18. The applicant travelled to Australia on a working holiday visa which is a temporary visa that does not lead to a permanent residency outcome. Whilst in Australia he attempted to apply for a student visa which was refused because he provided misleading information, in that he failed to declare that he had criminal matters before the court. The Tribunal notes that the applicant has appealed this refusal and it is before the AAT for review. He told the Tribunal that he did not understand the wording of the application and he did not tell his agent about his charges. The applicant, through his representative confirms this in his submission, arguing that there was no intention to mislead, merely a misunderstanding of the wording.

19. He has remained on a variety of bridging visas in order to pursue reviews of his refused visa applications and cancellations.  He told the Tribunal that he wanted to go to university to study medicine to become a doctor, stating that he had published some research papers in the past in Taiwan. The Tribunal put to the applicant that in his application for a student visa he stated that he wanted to study a Certificate III in business and do some English classes. The applicant said that his state of mind was not such that he could do those courses so opted for something simpler.

20. The Tribunal put to him that studying medicine required a great deal of money and high levels of English language skills. The Tribunal put to the applicant that as he required an interpreter for these proceedings it did not appear that he had reached such proficiency. The applicant said that he was worried about the legal terminology and wanted to be certain. When questioned by the Tribunal the applicant said that he was not currently studying English but was working at a car wash. He said he was doing a leadership course but provided no evidence.

21. The applicant has provided evidence from someone who appears to have been an English tutor who speaks well of him. The applicant claims that he intends on improving his English skills through the use of this tutor however that is not information provided by the tutor in her letter.

22. The Tribunal asked him if he could do his medical degree in Taiwan suggesting that if he really wanted to be a doctor that would be the most logical route given his lack of English language skills. The applicant said that he wanted to be a GP in Australia because he preferred the environment here.

23. The Tribunal asked the applicant how he was going to pay for a medical degree, and he said that his parents would pay. However, during later questioning, it transpires that his mother is on a pension and in the recent past he has sent her money as she has been unwell. His father and mother are divorced.

24. The applicant states that if he did his degree in Taiwan it would take seven years and in Australia it is only four years. He states that if he is unable to study medicine, he will undertake a degree in Nursing as it is cheaper.

25. The Tribunal is not persuaded that the applicant has a compelling need to remain in Australia. Despite his claim to want to study Medicine, his efforts at obtaining the necessary proficiency in English to undertake such a degree do not appear to match his ambition. He states that his mother will make available to him her pension fund (like superannuation) however he has provided no evidence of this. He can, in any case, obtain a medical degree in Taiwan. The Tribunal finds the applicant’s reasons for remaining in Australia are not so compelling such that they would persuade the Tribunal to not cancel his visa.

26. The Tribunal has considered the extent to which the applicant has complied with his visa conditions. There is evidence before the Tribunal that he has been in breach of any of his visa conditions.

27. The Tribunal has considered the degree of hardship that may be caused (financial, psychological, emotional or other hardship) if the applicant’s visa is cancelled. The applicant told the Tribunal that his mother has colon cancer and is quite anxious. She is also under financial pressure and he has had to send some money back to her after she finished chemotherapy. He said she would be very disappointed if he returned to Taiwan.

28. The Tribunal put to the applicant that he had just told it that his mother would finance his medical degree and now he is saying that he had to send his mother some money. The applicant said that she didn’t need his money but just sent it to her to give her peace of mind. The applicant said that he rang her a while ago and she will send him her pension fund to support him whilst he remains in Australia. He told the Tribunal that his father and mother are divorced. The tribunal asked the applicant if he had told his mother about his current situation and he said that his mother knows something is happening and that’s why she feels some stress but she trusts me that I am not a bad person but a role model. She was very sad that he was convicted and suffered.

29. The applicant has no children or family in Australia and no business or employer would suffer as a result of his departure. He claims to have a partner whom he met in April 2020. His partner is an international student. The applicant has also provided a character reference from his employer who speaks well of the applicant’s work ethic and positive attitude. He does not indicate that his business would suffer as a result of the applicant’s return to Taiwan.

30. The applicant has submitted that he is concerned about Taiwan’s proximity to China and that it is subject to earthquakes, typhoons and flood. He states that his best friend died in an earthquake and all of this adds to the stresses of stying and living in Taiwan. He states that working hours in Taiwan are long and arduous and would prefer to work here whilst he completes his degree.

31. The Tribunal is not satisfied that the applicant would suffer such hardship should he be returned to Taiwan as to persuade the Tribunal to not cancel his visa.

32. The Tribunal has considered circumstances in which ground of cancellation arose. The applicant claimed there were mitigating circumstances which arose as a result of his partner’s suspected infidelity. He admits to the offence but claims he was not rational at the time. He claimed that his partner had suffered depression and they have separated more than 100 times. He said that he was sorry for the use of society’s resources on his offence. He also claimed that he acted out of impulsiveness.

33. The Tribunal is not satisfied that the circumstances in which the grounds for cancellation arose were beyond his control.

34. The Tribunal has considered the past and present behaviour of the visa holder towards the department no evidence that he has not been compliant and engaged with the department. The applicant has said that he will continue to comply with the department.

35. The Tribunal has considered whether there would be consequential cancellations under s.140 but there are none relevant to the applicant’s circumstances.

36. The Tribunal has considered whether there are mandatory legal consequences which would result if the applicant’s visa is cancelled.

37. The Tribunal notes that the applicant will not become unlawful if this visa is cancelled. He holds a valid Bridging Visa E subclass 010 grant number 8269557336174 which is still current. Nevertheless, the cancellation of this visa may make him subject to section 48 of the Act, which in turn may prevent him from applying for certain visas while on shore. He may also be affected by Public Interest Criterion 4013 which limits the grant of further temporary visas for a specified period.  The applicant told the Tribunal that he hoped that he would have an opportunity to finish his plan and study to become a doctor.

38. The tribunal gives this aspect some positive weight in the applicant’s favour.

39. The Tribunal has considered whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation. The applicant has no children either in Australia or abroad.  The Tribunal explained to him non-refoulement and he said no reason to fear returning to Taiwan in relation to those matters for the moment. There is no evidence before the tribunal that returning the applicant to Taiwan would breach any international obligations.

40. The Tribunal has considered, if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia. The visa holder held a temporary working holiday visa which ceased on 6 August 2019. On 27 July 2019 he lodged an application for another temporary visa, a student visa. This application was refused on 21 October 2019 because he provided false information. He has appealed this decision to the AAT.

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

    DECISION

42. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Ann Duffield
    Senior Member