Wu (Migration)

[2018] AATA 2253

Wu (Migration) [2018] AATA 2253 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tse-chun Wu

CASE NUMBER:  1801732

HOME AFFAIRS REFERENCE(S):           BCC2017/1791376

MEMBER:James Lambie

DATE:29 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 29 June 2018 at 4:41pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – Risk to the Australian – community – Charged with several offences – Serious assaults – Applicant granted bail – Strong community ties – Financial hardship – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 140

CASES

Gong v MIBP [2016] FCCA 561
Gong v Minister for Immigration and Anor [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 19 January 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 the serious and violent offences with which the applicant has been charged satisfied him that the applicant’s continued 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 24 April 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. The representative attended the Tribunal hearing.  The Tribunal also received a quantity of written submissions and character references tendered on the applicant’s behalf.

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 has been in Australia since 2011, first on working holiday visas then on a student visa, and finally on another class TU subclass 500 which was granted to 7 June 2017 and is due to expire on 1 August 2018.

10. On 16 December 2017, the applicant was charged with five offences arising from an incident alleged to have occurred on 1 December 2017:

    ·Assaults occasioning bodily harm whilst armed/in company (2 counts);

    ·Extortion with intent to gain benefit with threat of detriment; and

    ·Wilful damage (2 counts).

11. On 19 January 2018, the applicant was granted bail in the Supreme Court of Queensland. The same day, his visa was cancelled under s.116(1)(e)(i) and he was placed in immigration detention.

12. The alleged offences arise from a dispute between the owner of a massage parlour in Southport and the supplier of staff to that business.  The dispute appears to have arisen over the fees or other monies payable for the supply of staff and then escalated to the point where persons acting on behalf of the supplier attempted to abduct the female staff members from the parlour.  It is reasonably clear from the evidence that the arrangement between the parlour owner and the supplier would fit the description of a human trafficking operation, a description which was accepted by the applicant’s representative.  The evidence of the applicant was that, following the attempted abduction, the owner and the supplier met at a Southport hotel to negotiate the amount payable by the owner.  A reduced amount was agreed, payable at the end of the week.  When the supplier and her mother arrived at the parlour to collect the money, they were set upon by armed men and seriously assaulted.  The charges allege that the applicant was centrally involved in these latter events.   The applicant’s representative advises that any trial is unlikely to commence before April 2019.

13. The applicant claims that the cancellation of his visa is unfair because he has not been convicted of the offences, he denies the allegations and he has been granted bail.  Further, he claims there is credible evidence that he did not actually participate in the alleged offending, there is no evidence of injury or harm caused to any persons as a result of his own alleged conduct and that any cancellation of his visa will cause hardship to him, his partner and his partner’s child.

14. 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 v Minister for Immigration and Anor [2016] FCCA 561, [41] to [63].

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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 by authority has assessed the risk is sufficient to warrant conditions. On the other hand, the fact that they 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.

22. 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.

23. With these considerations in mind, I now turn to the specific matters before the tribunal. As mentioned above, the tribunal made only limited inquiries into the factual matrix of the offences as charged stop. However, I felt it was proper to enquire as to the background that gave rise to the things that occurred on the evening of 1 December 2017. The applicant’s evidence was quite unsatisfactory as to the nature of the business owned by his friend and the circumstances in which foreign nationals were apparently being bought and sold for the purposes of that business. The applicants contention that the dispute arose from some sort of residential tenancy agreement was highly implausible and, in fact, was disclaimed by his representative at the hearing.   The applicant admitted that he attended at the parlour (at the owner’s request) immediately following the attempted abduction, that he attended and participated in the negotiations at the hotel and that he was in the immediate vicinity of the parlour when the assaults allegedly were committed.  I note and give weight to the facts that both parties to the trafficking transactions were well-known to the applicant and that the applicant was intimately involved at the crucial stages of the transaction.

24. I cannot ignore the fact that the offences with which the applicant has been charged are objectively very serious and involve vicious, pre-planned and armed assaults on two women, one of whom was quite elderly.  As discussed above, I give more weight to this in terms of the assessment of risk than I would were the offences of a less serious or less violent nature. 

25. I also give weight to the fact that these offences were alleged to have been committed in a context that involved organised criminality, most likely the trafficking of foreign women for the purposes of prostitution.

26. I have considered the fact that the applicant was granted bail on strict conditions.  I give some weight to the fact that bail was granted.  This is balanced by the stringency of the conditions, which indicates an acceptance by the court of the risk posed to the community by the applicant.

27. Accordingly, I am satisfied that, given the gravity of the offences alleged and that the likelihood that his previous conduct involved some involvement in organised criminal behaviour, that his presence in Australia is or may be a risk to the health, safety and good order of the Australian community.

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 applicant and his representative raised a number of arguments, referred to in paragraph 13 above, as to the factors that weigh against the cancellation of his visa.  I have given careful consideration to the applicant’s evidence and to the submissions and character references given on his behalf.

31. The applicant has been in Australia on working holiday and student visas since 2011.  Although he appears to have made a favourable impression and enjoyed strong ties with the local Australian-Taiwanese and wider community, I can find no compelling need for him to stay in Australia.  No weight is given to this factor.

32. The Tribunal has no evidence before it to indicate any previous instances of non-compliance with visa conditions and some weight is given to this in favour of the applicant.

33. The applicant has claimed that he will suffer financial hardship as a result of any visa cancellation and some weight is given to this.  It is also claimed that hardship will be caused to his partner and her child as a result.  The evidence before the Tribunal was that the woman referred to in this context is not in a marital or de facto relationship with the applicant.  It is accepted that he does provide her with assistance from time to time but there appears to be no relationship of dependency or mutual support, and little weight is given to it.

34. There are no circumstances underlying the ground of cancellation beyond the applicant’s control, nor are there any consequential cancellations under s.140. The cancellation does not raise any concerns of any breach of international obligations, such as non-refoulement or the best interests of children. There is no evidence of any untoward conduct towards the department. These factors weigh neither in favour of nor against cancellation.

35. Any cancellation would have mandatory legal consequences and would result in the visa holder being unlawful and liable to detention and may prevent him from making a valid visa application without the Minister’s intervention.  Some weight is given to this, in favour of the applicant.

36. I have carefully considered all of these factors and weighed them against the circumstances of the applicant’s alleged offending and the risk to the Australian community discussed above.  I consider that none of the discretionary factors, alone or together, outweigh the risk to the community.

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

    DECISION

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

    James Lambie
    Senior Member