Wen (Migration)

[2019] AATA 3992

Wen (Migration) [2019] AATA 3992 (22 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yanming Wen

CASE NUMBER:  1828726

HOME AFFAIRS REFERENCE(S):           BCC2018/4047772 BCC2018/4349203

MEMBER:David McCulloch

DATE:22 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 22 February 2019 at 10:59am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – convicted of an offense – mitigating factors – appropriate progress in studies – decision under review set aside  

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 September 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 applicant is a citizen of China born on 24 June 1994. The visa that has been cancelled was granted on 9 November 2016 for a stay until 7 August 2019.

3. A Notice of Intention to Consider Cancellation of the visa (NOICC) was sent to the applicant on 14 September 2018. A response to the NOICC was provided on 25 September 2018 and the applicant also provided information to the Department on 20 August 2018 and 30 August 2018 in relation to an earlier NOICC sent to the applicant.

4. The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 18 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.

6. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

7. 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

8. 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?

9. 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) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

10. The decision of the delegate indicates that based on Australian Federal Police records provided by the applicant to the Department the applicant had been convicted of the following offences:

    ·Assault occasioning actual bodily harm (domestic violence) being convicted on 27 July 2018 at Newcastle Local Court and given a bond to be of good behaviour for 12 months and fined $250.

    ·Contravene prohibition/restriction in AVO with the court date being 27 July 2018 and fined $250.

11. In response to the NOICC the applicant agreed that he had been convicted on the basis indicated above and that there were grounds for cancelling his Student visa. In the Tribunal hearing the applicant acknowledged that he had been convicted of the criminal offences.

12. For these reasons, the Tribunal is satisfied that a prescribed ground for cancellation in r.2.43(1)(oa) exists and therefore 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

13. 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’.

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

16. The Departmental file contains the New South Wales Police Facts Sheet in relation to the incident leading to the domestic violence conviction, with the date of arrest being 23 March 2018.

17. The alleged facts are as follows. On 3 March 2018 at approximately 12:25am the applicant and the victim were at their home. The victim states that the applicant was playing games on his phone and the sound level was preventing her from sleeping. The victim approached the applicant and asked him to stop playing the game. This led to an argument. The applicant smashed a coffee cup on the ground. The argument continued. The victim claims that she was held by the throat up against a wall by the applicant and was unable to breathe and defend herself. The applicant kept saying that he wanted the victim to die. The argument continued and the applicant pushed the victim onto a glass coffee table where he hit the victim’s head on the table a number of times resulting in the table smashing. Police received multiple calls in relation to the incident. This included a phone call from the applicant and from a third person who stated that he could hear an argument and a female screaming in pain. Police arrived and placed the applicant under arrest. A face-to-face interview was not possible because of the unavailability of an interpreter.

18. The applicant provided the following information and explanation for the breach in the Statutory Declarations he provided in response to the NOICC:

    ·The applicant was in a relationship with the victim from around the middle of 2017. They continued in their relationship until early August 2018.

    ·The AVO was issued on 8 March 2018. On 28 March 2018 the applicant was charged with breaching the AVO.  The applicant was at their home with the victim when the police attended. The victim agreed to the applicant being at home at the time. The applicant accepts that he was in breach of the AVO. The applicant pleaded guilty to breaching the AVO and was fined $250 plus court costs, totalling $416. The applicant has paid this fine.

    ·A final AVO was issued on 27 July 2018 for the protection of the victim for 12 months.

    ·In relation to the incident on 3 March 2018, the applicant pled not guilty to the charges of intentionally choking the victim and assault occasioning actual bodily harm. The court dismissed the charge of intentionally choking but the applicant was convicted of assault occasioning actual bodily harm. The applicant entered into a good behaviour bond for 12 months and paid a fine of $250 plus court costs totalling $416. The applicant has paid this fine.

    ·In relation to the incident on 3 March 2018, the applicant indicates that he and the victim were both upset and emotional. The applicant himself telephoned 000 and asked the police to come to the home. The applicant was seeking help for the situation. The applicant does not agree with the Facts Sheet allegations. He did not hold the victim by the throat or try to choke her and did not say that he wanted her to die. He did not push the victim onto a table or hit her head on the table. The applicant accepts the decision of the court that he assaulted the victim. The applicant is ashamed and sorry for his behaviour, attitude and what happened to the victim on 3 March 2018. He did not mean to upset the victim.

    ·After the 3 March 2018 incident there was reconciliation between the applicant and the victim and they continued their relationship, but the relationship ended in August 2018.

    ·The applicant has apologised to the victim and vice versa. They have exchanged letters to each other through friends. Following their relationship ending, the applicant has not contacted the victim.

    ·The applicant has complied with the Good Behaviour Bond and Final AVO. The applicant is aware of the seriousness of breaching these requirements. The applicant submits that his presence in Australia is not a risk to the safety of the victim or any other person.

    ·The applicant attended two sessions with a Mandarin speaking psychotherapist on 16 and 23 March 2018 for anger management. Evidence from the psychotherapist is provided of these sessions. In March 2018 the applicant contacted Relationships Australia about a ‘Taking Responsibility’ program in Newcastle. The program was full and the applicant was not offered a place to attend.

    ·The purpose of the applicant being in Australia since arriving on 23 November 2016 has been to study. The applicant completed English language studies at the University of Newcastle English Language Centre and is currently studying a Masters of Business Administration and a Masters of International Business at the University of Newcastle. These studies build on the applicant’s university studies in China in International Business. The applicant is continuing and tends to complete these studies.

    ·The applicant has complied with conditions on his Student visa.

    ·The applicant will suffer hardship if the visa is cancelled. It will be difficult for the applicant and his family. The inability to complete his studies will be disappointing and distressing for the applicant and his family.

    ·Neither the applicant or his family have otherwise been charged with criminal offences.

    ·The applicant has cooperated with the Department and voluntarily provided the Australian Federal Police National Police Certificate to the Department.

    ·The applicant swears that he will not commit further offences in Australia or overseas. He is ashamed of what happened and has learned from his experience.

19. The applicant’s representative provided a submission dated 14 February 2019 and other documents to the Tribunal.  This included the following submissions and evidence:

    ·The applicant has not been convicted of any other offences in Australia or China. Evidence was provided of this.

    ·The applicant has complied with his bond to be of good behaviour and complied with conditions of the final AVO.

    ·Whilst acknowledging the seriousness of the offences they are not of a nature or level of seriousness that would result in the applicant not satisfying the ‘character test’ within s.501 of the Act.

    ·A mitigating factor is that the applicant was the person who telephoned the emergency phone line at the time of the offence.

    ·Hardship to the applicant if the visa remained cancelled would be the inability to complete his university studies.

    ·References attesting to the applicant’s good character which had been provided in respect of the criminal proceedings were provided to the Tribunal.

20. In the hearing the applicant gave his account of the incident leading to the conviction. He indicated how upset his girlfriend became. He indicated that he did not choke his girlfriend or bang her head on the table as alleged. The applicant referred to him being the one to call police in the hope that the police would settle the issue.

21. The applicant indicated in the hearing that it was his girlfriend who agreed to the applicant continuing to live with her resulting in the applicant breaching the interim AVO.  The applicant indicated that police randomly visited the premises checking on the AVO which caused them to discover the applicant breaching the AVO. The applicant indicated that the final AVO did not prevent the applicant and his partner from living with each other. They lived with each other for a short period before deciding to separate.

22. The applicant provided the Tribunal with an undated ‘Forgive letter’ from the applicant’s partner to the applicant. In the hearing the applicant indicated that this was provided to him by his lawyer between the time of the first court hearing in March 2018 and the final hearing in July 2018. The letter indicates the applicant’s partner taking some responsibility for the problems in the relationship and referring to missing the applicant.

23. The applicant indicated at the hearing that his former partner has now returned to China.

24. The Tribunal takes as adverse to the applicant in exercising its discretion that he has been convicted of actual bodily harm (domestic violence). Whilst not discounting this fact, the Tribunal does note that the applicant was given a good behaviour bond and fined a relatively modest sum of $250. The Tribunal would not categorise the offence, in the context of the penalty, one of significant severity.

25. The applicant has taken a degree of responsibility for the events. He has claimed some degree of extenuating circumstances caused by his partner’s extreme response to the events. The Tribunal does not consider that there are extenuating circumstances beyond his control that justify him assaulting his partner.

26. The Tribunal accepts that the applicant’s partner consented to the applicant continuing to live with her shortly following the incident notwithstanding the interim AVO.  This would suggest that the incident of 3 March 2018 was not of a level of severity or part of systemic conduct by the applicant that caused the applicant’s partner to consider that she needed ongoing protection from the applicant.

27. The Tribunal considers that the ‘Forgive letter’ provided by the applicant’s partner indicates the applicant’s partner taking at least some responsibility for the issues between them and seeking to assist the applicant in mitigating the consequences of the assault.

28. There is no evidence to contradict the fact that the applicant has complied with the terms of the good behaviour bond and paid the fine.

29. The Tribunal takes as a mitigating factor, in relation to the applicant’s conviction for breaching the interim AVO, the fact that the applicant’s partner had agreed to the applicant residing with her. The Tribunal accepts this fact. It is consistent with the final AVO not preventing the parties from interacting or living together.

30. The Tribunal explored with the applicant the progression of his studies in Australia. The applicant arrived in Australia in November 2016 and undertook an English course. He then completed a Graduate Certificate in Business Administration. The applicant is currently studying a Master of Business Administration/Master of International Business. Evidence was provided from the education provider of the applicant’s current enrolment in this course. In the hearing the applicant indicated that he has passed eight out of the 16 units required in his studies. He expects to complete these studies on 30 August 2019.

31. There is no evidence that the applicant has breached any other conditions on his Student visa.

32. The Tribunal finds that the applicant has been making appropriate progress in his studies in Australia and he expects to complete his current studies in August 2019. The Tribunal considers that it would be a significant hardship to the applicant if he is unable to complete his current studies with only six months to completion. This would be a considerable waste of time and resources.

33. The Tribunal considers a hardship to the applicant if the visa remains cancelled would be his inability to apply for other substantive visas onshore. Whilst the applicant could become an unlawful non-citizen, the Tribunal considers that the applicant would be able to continue to hold a bridging visa while he makes arrangements to leave the country.

34. There is no evidence that the applicant has acted in an inappropriate way towards the Department.

35. The Tribunal considers that these are the relevant discretionary factors.

36. In summary, adverse to the applicant is that he has been convicted of assault occasioning actual bodily harm in the context of domestic violence and breaching an interim AVO. The Tribunal takes seriously physical assault in the context of a relationship. Mitigating these convictions are the fact that the applicant’s partner has made representations taking some responsibility for the issues between her and the applicant. A mitigating factor in relation to the breach of the interim AVO is the fact that the applicant’s partner agreed to the applicant continuing to live with her.

37. The Tribunal also considers relevant that the applicant and his former partner continued to live together for a period including once the final AVO was issued.

38. The Tribunal considers that a very considerable hardship to the applicant if the visa remains cancelled will be his inability to complete his Masters courses which are due for completion within six months. If the visa remains cancelled, the applicant would have wasted significant effort and resources in his current studies in Australia.

39. The Tribunal considers that the applicant has already paid a reasonable price for the events of 3 March 2018. He has had to proceed through the criminal justice system in terms of his charges and conviction. The applicant has also had considerable uncertainty over the past year as to the future of his studies in Australia, including not knowing whether he would be in a position to complete the Masters courses that he is undertaking.

40. Balancing relevant discretionary factors, the Tribunal determines not to exercise its discretion to cancel the visa.

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

    DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   David McCulloch
   Member