Wu (Migration)

[2018] AATA 399

Wu (Migration) [2018] AATA 399 (19 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tse-Chun Wu

CASE NUMBER:  1803339

DIBP REFERENCE(S):  CLF2018/9936

MEMBER:Ann Brandon-Baker

DATE:19 February 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 19 February 2018 at 2:03pm

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Criminally charged – Pending criminal matter – Recount of incident lacking in detail – Lacks credibility and consistency

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 February 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) 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 charged with offences in the state of Queensland. 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 16 February 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 and his criminal lawyer. Both assisted the applicant in the presentation of evidence and arguments to the Tribunal.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   BACKGROUND

6. The applicant provided the Tribunal with a copy of the delegate’s decision along with the application for review.

7. The applicant is a citizen of Taiwan born on 11 July 1987 (30 years old). He first arrived in Australia in 2011 on a student visa. He was granted a TU500 Student visa on 7 June 2017 which was subsequently cancelled on 19 January 2018 on the basis of criminal charges laid against him at the Brisbane Supreme Court and he was taken into immigration detention. He was granted a bridging visa E on 7 February 2018 which was immediately cancelled.

8. The Tribunal issued a summons to the Queensland Police Service on 12 February 2018 to produce a National Police Certificate, a Queensland ‘Person History’ and all charge sheets relating to the applicant. These were provided to the Tribunal on 12 February 2018. The Tribunal subsequently sent these documents to the applicant putting to him that subject to his comments, the information contained would be the reason, or part of the reason, for affirming the decision under review.

9. The applicant responded to the Tribunal’s letter and provided a number of documents, including the following.

   a.Submission by the applicant’s representative

   b.Several copies of decisions from the Federal Court and differently constituted Tribunals on similar matters

   c.The applicant’s bail order

   d.Statutory declarations by the applicant’s co-accused

   e.Statutory declaration by the solicitor in the applicant’s criminal proceedings

   f.Letter from the applicant’s employer

   g.Statutory declaration from the applicant’s room mate

   At the Tribunal’s hearing the applicant provided a telephone account of the massage shop in question, a report by the Commonwealth Ombudsman on the immigration department’s use of cancellation powers, some results of his study at “Imagine” institute, an affidavit from the applicant in relation to his bail hearing. All of these documents have been carefully considered by the Tribunal in the making of its decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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

11. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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.

12. The applicant was charged with the following five (5) offences in the Queensland Supreme Court:

    a.Assault occasioning bodily harm whilst armed/in company on 1 December 2017

    b.Assault occasioning bodily harm whilst armed/in company on 1 December 2017

    c.Extortion with intent to gain benefit with threat of detriment on 1 December 2017

    d.Wilful Damage – 1 December 2017

    e.Wilful Damage – 1 December 2017

13. In a statutory declaration to the Tribunal the applicant’s co-accused states that the case against him is “circumstantial” and he is innocent and the applicant was not involved in any alleged physical attack against the two women.  He does not deny that the charges have been laid.

14. 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 power to cancel the visa should be exercised.

15. Parenthetically, the Tribunal has noted that the applicant and his advisers have provided some submissions and made some arguments that appear to be based on the misapprehension that the applicant’s visa was cancelled under the provision of s.116(1)(e). . A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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. That is not the issue in the present case. However the Tribunal notes the evidence provided by the applicant attesting to his good character and stating that he is of no 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 that were submitted to the Tribunal after the hearing, including the following:

    a.Statement from Min Chih Cheng, Supervisor General of the Australia Taiwanese Chamber of Commerce, (QLD) Inc

    b.Cindy Lee, General Secretary of the Global Federation of Chinese Business Women of Australia

    c.James Hu, President of the Taiwan Friendship Association of Queensland

    d.Billy Wu, President Taiwan Friendship Association of Queensland

    e.Nicholas Chang, Solicitor

    f.Jerry Lind, board of directors, Taiwan Association of Brisbane

    g.Yu-yu Chen, board of directors, Taiwan Friendship Association of Queensland

    h.Dr Tom Huang, Australian Medical Doctros

    i.Margaret Payne and Diana Want, neighbours

    j.Peng Zhao,employer

    k.Keyi, roommate and co-worker

    l.Yen-Hsiang Huang, colleague

    m.Teng-Chin Chan, former co-worker

    n.Yung-Tung Lin, colleague and friend

    o.Che-Wei Hsyu, friend

    p.Yu Hui Huang, friend

    q.Ka Ming, friend

    r.Wei-Lun Tuan, friend and ex roommate.

    s.Yao-Ru Lin, friend and colleague

    t.Yi-Syuan Chang, friend

    u.En-Li Lin, friend and co-worker

    v.Yu-Hsien Su, Director of Tenjin Ramen and Tea bar

    w.Sufen Chang, friend

    x.Shen Min Lin, friend

16. The Tribunal also received a statement from Chi-Yun Huang, a friend and worker at massage shop owned by co-accused, stating that they were at the shop when the alleged incident happened, but provided no relevant details of the incident.

17. The Tribunal told the parties that it would consider any further evidence they wished to provide if it was received prior to 12 pm on 19 February 2018.  All the material received by the Tribunal by that time has been considered. The applicant also provided a personal statement to the Tribunal after the hearing. Where relevant, this evidence has been taken into consideration in the Tribunal’s findings and reasons below.

    Consideration of discretion

18. In considering whether to cancel a Bridging E visa 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.

19. 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.

20. 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.

21. 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.

22. The Direction also highlights an expectation that Bridging E visa holders who are charged with the commission of a criminal offence or are otherwise suspected of engaging in criminal behaviour or being of security concern ought to have their bridging visas cancelled while criminal justice processes or investigations are ongoing.

23. The Tribunal notes the intention of the direction. However the Tribunal is also mindful that the presumption of innocence is a fundamental principle of Australian common law and that a degree of proportionality is applied to any consideration to cancel a visa, particularly for charges at the minor end of the scale.

    CLAIMS AND EVIDENCE

24. At the outset of the hearing the Tribunal informed the applicant that he has a right to invoke the privilege against self-incrimination and not answer any of the Tribunal’s questions as they might lead him to do so. The Tribunal noted that the charges against him were still pending, and if he chose to answer questions, those answers could be used in criminal or other proceedings against him.

25. The applicant and his advisers were insistent on putting to the Tribunal the circumstances of the applicant’s arrest and his detailed refutation of the charges against him.

26. The Tribunal also detailed the basis upon which the applicant’s visa was cancelled and the sorts of matters that the Tribunal would consider in deciding whether or not to exercise its discretion to revoke the cancellation.

27. The applicant and his advisers told the Tribunal that the applicant had only been charged as a party to the offence, not that he actively participated in the assault and related charges. The applicant denies any knowledge of the serious and violent nature of the offence and states that the delegate took a disproportionate response in cancelling the applicant’s visa. The parties claim that had the delegate considered the statutory declarations provided from his co-accused which exonerate the applicant of any role in the events, the applicant’s visa would not have been cancelled.

28. The parties submitted to the Tribunal that the applicant was only a bystander to the event and not involved. They claim his role was to ensure that the victims did not arrive with anyone else. The parties claim that the minor nature of the charges are reflected in the fact that the applicant was eventually granted bail under strict conditions which ameliorate any concerns that the delegate or the Tribunal would have about the risk the applicant posed to the community. The applicant’s advisers state that the court considered all those matters and arrived at the conclusion that the applicant was not a risk to the community.

29. The applicant told the Tribunal that he was sharing accommodation with a single mother and her child. It appears that the relationship is platonic in that they do not have a romantic relationship and are not partners in the sense envisaged by the Migration Act.

30. The applicant is studying at an institute called “Imagine” and works 20 hours a week. He has been studying since 2013. Prior to that he was in Australia on a working holiday visa. He has returned to Taiwan three or four times. He earns around $600-$800 a week after tax and pays $370 a week rent.

31. The applicant told the Tribunal that he met his co-accused, David a few years ago but only met the other co-accused, Jessie, last year. Jessie began working at David’s massage shop recently but he was not able to say precisely when.

32. The following is a summary of the Tribunal’s understanding of the evidence in narrative form, and not necessarily in the order in which it was given.

33. The two female victims of the alleged attack, Ms C and Ms M, provide David with workers for his shop for which they receive some kind of commission. There was a dispute about money in which the victims claim that David owed them $20,000. David disputed the claim. The women went to the shop with two “well-built guys” and tried to remove a worker they had placed there. The applicant claims that this was an attempted kidnapping. He said that the women who worked at the shop who had been referred by Ms C and Ms M were, essentially, their slaves. He said that the women told him that Ms C and Ms M kept them locked up and they weren’t allowed out except to go to work. Ms C and Ms M took away their passports and didn’t pay them properly. The applicant’s adviser told the Tribunal that these women were victims of trafficking.

34. The applicant claims that David called him on the day of the “kidnapping” and asked him to meet at a local bar. The applicant claims that he went to the bar and met with David, along with Ms C and Ms M and the two “well-built guys”. He said that Ms C and Ms M asked for $20,000 compensation and he was able to negotiate that sum down to $5,800. He said that David made arrangements with Ms C and Ms M to meet at the shop the following week to pay Ms C and Ms M the money. He said that David was worried that they would bring along the two “well-built guys” and so asked him to come along to make sure that Ms C and Ms M arrived alone.

35. The applicant claims that when he and David arrived at the shop on the night in question three security guards engaged by David were already there. He said that he walked around outside and saw that Ms C’s car was across the road so he went inside the shop to tell David. He said he remained there for about 15 or 20 minutes before he left. He told the Tribunal that he did not see Ms C or Ms M inside the shop.

36. The applicant told the Tribunal that when he went back outside the shop he saw a car with four people wearing masks and he felt nervous and scared. He said they got out of the car and walked into the shop. He claims he didn’t know who they were but he felt scared.  He claims that he felt that something might happen and he thought he should leave. He says he saw them go into the shop and then come out again 20 minutes later. He said that he did not let David know by text or other means that four masked men were entering the shop.

37. The applicant later told the Tribunal that when he was walking around outside the shop he saw a car on the other side of the road and walked over to talk to the driver whom he claimed was the younger brother of a friend. Asked what he was doing there, and who the masked men carrying weapons in the car were, he claims that his friend’s younger brother told him that he was just dropping them off. He said that when he saw these four armed masked men leave the shop he ran off in the other direction. He said that he went to a Korean restaurant nearby and had something to eat and drink. He claims that David rang him about 30 minutes later and joined him at the restaurant. Asked what David told him about the incident at the shop he claims that David only explained that there had been an argument and he did not ask any further questions. He said he then went home.

38. The Tribunal questioned the applicant about what impact the cancellation of his visa would have on himself or his family, or any other consequences that he or his family may suffer if the visa was cancelled. Where relevant those matters are discussed in the findings and reasons below.

    Primary consideration

39. The primary considerations that the Tribunal is required to take into account in line with Direction 63 are:

    a.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

    b.the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

40. The applicant has no children under the age of 18 in Australia. He claims that he shares his accommodation with an Australian permanent resident who is a single mother and her daughter, an Australian citizen.  The evidence before the Tribunal is that the applicant provides accommodation for the woman and her daughter at reduced rent and is also of significant moral and emotional support to her. The parties argue that if the applicant’s visa is cancelled these two people would suffer great hardship.

41. The Tribunal has considered this matter and whilst it may be the case that the applicant provides a degree of financial, emotional and moral support to these people, there is no evidence before the Tribunal to support a claim by the applicant’s adviser that the parties are partners and considering getting engaged. The applicant himself did not lend any strong support to this claim saying only that they relied on his support and could not manage without him.

42. The Tribunal is not satisfied that the applicant and his roommate are partners in the sense envisaged by the Migration Act or that she would not be adequately supported by the Government or friends or other should the applicant’s visa be cancelled. The Tribunal gives this consideration no weight in favour of the applicant.

43. The grounds for cancellation are made out.

44. The applicant’s account of the incident which resulted in charges being laid against him is flimsy, lacking in relevant detail, internally inconsistent, implausible and lacking in credibility.

45. The applicant claims that he is innocent and merely a bystander. However, as the Tribunal put to him, that on his own account, he involved himself with people he knew to be kidnappers and extortionists and possibly even traffickers. Far from being an innocent bystander, the Tribunal put to him that knowing these facts, he nevertheless sat around a table with these people and acted as a negotiator, reducing the debt from $20,000 to $5,800. The Tribunal put to him that whatever else he may be he was most assuredly not an innocent bystander.

1. The Tribunal also asked the applicant if he believed that activities such as kidnapping, extortion and trafficking were legal in Australia and he said that he knew that they were illegal. The Tribunal put to him that he nevertheless willingly and knowingly associated himself in such people. The Tribunal put to the applicant that this did not make him an innocent bystander.

2. The applicant’s account of his presence during the night in question was also internally inconsistent; on the one hand he claims that he ran after he saw men in masks carrying weapons enter the shop and on the other he claims that he spoke to the brother of a friend who had ferried these men to the scene of the alleged crime. The Tribunal is not satisfied that the applicant’s varying accounts of his involvement point his lack of involvement or his innocence. Indeed, the Tribunal finds his evasiveness and lack of credibility significant weight adverse to the applicant.

3. The Tribunal notes the applicant’s submission that he was released on bail and this supports his claim to have his bridging visa re-instated. The Tribunal also notes the statements of the applicant’s co-accused stating that the applicant is essential to the defence of their case. The Tribunal is not persuaded that leaving the applicant in detention whilst his criminal matters are heard will disadvantage either of his co-accused such that it is a reason why the Tribunal would re-instate his visa. The Tribunal gives this aspect no weight in favour of the applicant.

   Secondary considerations

4. The Tribunal has considered the impact of a decision to cancel the visa on the family unit and has dealt with these matters in paragraphs 41-43 above. The Tribunal gives this aspect some positive weight in favour of the applicant.

5. The Tribunal has considered the degree of hardship the degree of hardship that may be experienced by the visa holder if the visa is cancelled, including the impact on his employer and his studies along with his ambition to remain in Australia and be a great chef. The Tribunal accepts that the cancellation of the applicant’s visa will disrupt his studies and future plans to work in Australia on a permanent basis. However, the Tribunal is not satisfied that there are any circumstances, individual or cumulative that could be considered a hardship for the applicant should his visa be cancelled, such that they outweigh the primary considerations to cancel the visa.

6. The Tribunal has considered the circumstances in which the ground for cancellation arose and finds that the applicant’s account of the incident and his claims to only be a bystander are implausible and lack credibility. The Tribunal is not satisfied that the circumstances not to cancel the applicant’s visa are made out for the reasons set out in paragraphs 46-48 above.

7. The Tribunal has considered the possible consequences of cancellation and notes that the parties claim that the applicant’s case is unlikely to be heard until around April 2019, thus leaving the applicant in detention for more than a year merely on the basis of charges that have been laid against him and will not have the proper opportunity and time to defend his innocence.

8. The Tribunal has weighed up this matter and accepts that as a consequence of cancelling his visa the applicant will remain in detention. The Tribunal also accepts that it may raise some difficulties in relation to his defence; however these difficulties are not insurmountable, in the Tribunal’s view. Furthermore, the Direction itself envisages that it is expected that those who have had their visas cancelled be nevertheless held in detention while the process of justice takes place. The Tribunal does not give this aspect any positive weight in the applicant’s favour.

9. The Tribunal has considered whether there are any relevant matters it is required to consider. The Tribunal is of the view that it has considered all relevant matters.

   CONCLUSION

10. The Tribunal has considered the totality of the applicant’s circumstances, individually

    and cumulatively and weighed them accordingly. In the context of all of the relevant issues and having considered all of the evidence before it, the Tribunal concludes that the visa should be cancelled.

    DECISION

11. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    A B Baker
    Senior Member