Xu (Migration)

[2019] AATA 1248

Xu (Migration) [2019] AATA 1248 (5 April 2019)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mingze Xu

CASE NUMBER:  1900580

DIBP REFERENCE(S):  BCC2018/4177514

MEMBER:Jason Pennell

DATE OF DECISION:  5 April 2019

DATE CORRIGENDUM

SIGNED:10 April 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

That paragraphs 42 and 43 of the Decision Record are to be deleted and replaced with the following:

42. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

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

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mingze Xu

CASE NUMBER:  1900580

HOME AFFAIRS REFERENCE(S):          BCC2018/4177514

MEMBER:Jason Pennell

DATE:5 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 5 April 2019 at 9.30am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence against a law of a State – convicted and sentenced to 44 days imprisonment – consideration of discretion – genuine student – substantially complied with visa conditions – serious offences against women – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 8 January 2019 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)(g) on the basis that the delegate was satisfied that the applicant had been convicted of an offence against the law of the Commonwealth, 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.

3. The applicant appeared before the Tribunal on 29 March 2019 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.

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

1. 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

1. 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.

2. The applicant was granted a Student (subclass 500) Visa (‘the visa’) on 1 September 2016. The applicant arrived in Australia on 5 September 2016 with the intention of studying Pharmacy. The Department of Home Affairs subsequently received information that on 2 October 2018 the applicant was convicted of the following charges at the Melbourne Magistrates Court:

(a)Recklessly Cause Injury;

(b)Unlawful assault x 2;

(c)Intentionally Damage Property;

(d)Make a Threat to Kill;

(e)Persistently Contravene Family Violence Intervention Order.

1. The applicant pleaded guilty to all the charges. He was convicted and sentenced to 44 days imprisonment, reckoned as time already served and was placed on a community Corrections Order for a period of 12 months.[1]

   [1]    Notices of Order Made, Magistrates Court of Victoria at Melbourne dated 2 October 2018; Department file BCC2018/41775514 @ f12-14

2. By an email from the applicants representative to the Department dated 23 October 2018 the applicant confirmed that the charges related to an incident that occurred between the applicant and his then girlfriend. 

3. By a Notice of Intention to Consider Cancellation (NOICC) dated 28 November the applicant was informed by the Department of Home Affairs that as he had been convicted of offences against the laws of the Commonwealth, State or a Territory, his visa may be cancelled in accordance with r.2.43(1)(oa) under s.116(1)(g) of the Act. Accordingly, the Department invited the applicant to make any comment on the grounds of cancellation and to give reasons as to why his visa should not be cancelled.

4. By a letter dated 4 December 2018 the applicant confirmed to the Department that he had been convicted of the offences. However, he claimed that his student visa should not be cancelled by reason of the fact that he had served 44 days, being less than 12 months as stipulated in section 501(7)(c) of the Act, and as such did not have a substantial criminal record for the purposes of the Act. As detailed in the delegates decision dated 8 January 2019 the cancellation powers under s.501 of the Act are applicable in cases were a non-citizen of Australia is deemed to have not passed the character test set out in s.501(6)(a)-(d) of the Act. The cancellations powers under s.116 of the Act are powers specific to temporary visa holders, such as the applicant, and do not rely on any part of s.501 of the Act. Accordingly, the applicants submission to the Department in relation to s.501 is misconceived and not relevant to the any considerations made by the department (or this Tribunal) under s.116(1)(g) of the Act.

5. By a Notification of Cancellation under section 116 of the Migration Act dated 8 January 2019 the Department advised the applicant that after weighing up all the available information that his visa was cancelled under paragraph 116(1)(g) of the Act. The Department did not consider any other ground under s.116 of the Act in cancelling the applicant’s visa.

6. For these reasons, the Tribunal is satisfied that the ground for cancellation in 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

1. 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’.

Applicants purpose of traveling and staying in Australia.

1. The applicant was granted a Student (subclass 500) Visa (‘the visa’) on 1 September 2016. The applicant arrived in Australia on 5 September 2016 with the intention of studying Pharmacy. The applicant’s statement provided with his student visa application states that he wanted to be a researcher in a university and one day own his own laboratory. At the hearing the applicant confirmed that it was his intention to study pharmacy in Australia because he had found it interesting at school. However, he said that when he started the course he found it too hard and as such switched to a Bachelor of Business Administration.

2. The applicant’s evidence was that because he had been accepted to University in Australia he did not complete his final school exam in China.

3. The applicants study records in the Department of Education’s electronic database for international students; PRISMS (Provider Registration and International Student Management System) indicated that the applicant completed an Extended Monash University Foundation Year in November 2017. He then went onto commence a Bachelor of Pharmacy at Monash University in February 2018. His enrolment in the Pharmacy course ceased in July 2018 at which time he enrolled in a Bachelor of Business Administration at Monash University. On 15 October 2018, his enrolment was cancelled on the basis of compassionate or compelling circumstances. He has not studied since.  

4. On 30 November 2018, three days after being issued the NOICC, the applicant obtained a new confirmation of enrolment in the Bachelor of Business Administration at Monash University. The course was due to commence in March 2019.

5. The Tribunal notes that by an email dated 23 October 2018 the applicant’s representative advised the Department of the applicant’s criminal convictions and the cancellation of his University enrolment. The delegate noted that the applicant did not act on his a new enrolment until 30 November 2018 six weeks after his enrolment was cancelled and three days after being issued the NOICC. The applicant says that he was not in a position to act on any new enrolment by reason of the charges and having spent 44 days in prison.

6. The Tribunal is satisfied that the applicant’s intention at the time of his visa application was to travel and stay in Australia to study. As such, the applicant’s intention at the time of his visa application does not constitute a reason to cancel his visa. The Tribunal has given some weight to the applicant’s statement that the purpose of him traveling and staying in Australia was to study.

Compliance with visa conditions

1. The applicant claims that he had complied with his visa conditions. The applicant has not been enrolled in a registered course since 15 October 2018. The applicant did not act on his a new enrolment until 30 November 2018 and as such did not maintain enrolment in a full time course for a period of about six weeks, in breach of condition 8202. The applicant’s visa was cancelled on 8 January 2019.

2. The Tribunal notes the applicant’s admission in his correspondence dated 23 October 2018 and 4 December 2018. It also takes into account the fact that the applicant was imprisoned for a period of 44 days prior to being convicted of the offences.

3. Accordingly, despite the applicant not being enrolled for a period of 6 weeks, the Tribunal accepts that under the circumstances he had substantially complied with the conditions of the visa. However, the applicant was aware that it was a condition of his visa that he complies with the laws of Australia. In circumstances where he has been convicted of the offences the Tribunal no weight in favour of the applicant in relation to this factor.

The degree of hardship that may be caused to the Applicant. 

1. The applicant’s evidence was that in the event his visa is cancelled he would suffer hardship by not being able to complete his studies in Australia. In particular, he states that he would face difficulties and delay in obtaining any qualification in China due to the fact that he did not complete his final exam in China. He says that it will take a year for him to complete his year 12 exams and then is unlikely to gain entrance into a top tier university in China. He says that he would be unlikely to gain entrance to a University with the same international standing as Monash University. The Tribunal accepts that the applicant would experience a delay and difficulties in gaining similar qualifications in China. However, the Tribunal notes that the applicant’s undergraduate studies have not progressed very far.  The applicant is still relatively young. Given his background and experience since first arriving in Australia, the Tribunal finds that he has the ability to apply himself to his studies to obtain the necessary academic qualification to gain entrance into a ‘good’ University in China. 

2. In addition, he says that he will be shamed in the eyes of his family for not having finished his studies. While the Tribunal accepts that he will be embarrassed and ashamed for not completing his studies he still has the option of applying himself to his studies in China. He is still relatively young and can afford to take the extra time to gain the necessary qualification for university entrance in China.

3. Other than the matters referred to above the applicant did not elaborate on any other financial or emotional hardships that he would suffer as a result of his visa being cancelled. He has resided in Australia since September 2016 but has travelled offshore on five occasions between academic semesters for periods of between two and seven weeks at a time.  The Tribunal accepts that the applicant may have established some personal ties to the Australian community during his time in the country .The Tribunal notes that the applicant’s evidence was that his parents were funding his tuition fees and living expenses in Australia. Therefore, the Tribunal accepts that they will, suffer some financial hardship as a result of his visa being cancelled. However, it notes that the applicant changed courses relatively quickly and is yet to commence his Bachelor of Business Administration course. As such his undergraduate studies have not progressed greatly.   

4. The applicant was born in Hubei Province in China and is a citizen of China. He was educated in China and his parents together with his two younger sisters remain living in China. As such he still has substantial ties to China. 

5. Therefore, while the Tribunal recognises that the applicant will suffer some hardship as a result of his visa being cancelled it places little weight on this consideration. The applicant was aware of the visa conditions when he obtained his student visa. As such he would have reasonably known that by being convicted of a criminal offence that it would impact on his eligibility to continue as a student in Australia. As such, the Tribunal gives little weight in favour of the applicant in considering this factor.  

The circumstances in which the grounds for cancellation arose

1. On 19 August 2018 the department received information form the Victoria Police that the applicant had been placed in custody for charges relating to family violence. In his response to the NOICC the applicant admitted that he had got into an argument with his then girlfriend that he handled the wrong way. The applicant stated that he was full of regret and that he was seeking methods to correct his behavior.

2. The applicant actions were against his girlfriend at the time. They had been in a relationship for a period of approximately ten months. According to the delegates decision the action were violent in nature and perpetuated against the victim on several occasion in July and August 2018. On one occasion he attended the victim’s apartment upon which they had an argument. The victim asked the applicant to leave and threatened to call the police. The applicant then threw her telephone against the wall, breaking the screen and assaulted her.

3. In another incident the victim sustained a broken finger after being pushed by the applicant. She required treatment for her injury by ambulance staff. In another incident its reported that the applicant pushed the victim against the balcony railing of her 27^th floor apartment. The applicant’s offences also included repeated and persistent breaches of a full Family Violence Intervention Order by living in the victim’s apartment.

4. The Victoria Police reported that they held concerns for the safety of the victim. It was reported that the applicant was a heavy user of alcohol and prolific gambler. The applicant is said to have displayed physical, financial and emotional violence toward the victim during the course of their relationship. The applicant was charged with making threats to kill the victim to which he pleased guilty.

5. The applicants evidence to the Tribunal was that he plead guilty to the charges and that he had accepted his punishment for the crimes. He said that he was sorry for his actions and that he no longer gambled or drank heavily. He said that he liked being in Australia and wanted to be able to complete his course.

6. However, the applicant’s behavior was not an isolated incident, but conducted over a number of occasions. The circumstances by which the grounds for canceling the applicant’s visa were not beyond his control. Rather, the applicant has demonstrated behavior of an opportunistic and predatory nature by which his intention was to dominate and exert power over the victim causing her physical and psychological harm. The applicant’s actions toward the victim display a complete lack of regard for her safety or wellbeing and a flagrant disregard and lack of respect for the Australian law.

7. Therefore, given the sever nature of the offences, the fact that they were occurred over a period of time, the opportunistic and predatory nature of the applicant’s actions and his  flagrant disregard for law, the Tribunal gives no weight no weight to this consideration in the applicant’s favour.

Past and present behaviour of the applicant

1. The applicant has been cooperative and courteous in all his dealings with the Tribunal. No adverse information has been provided to the Tribunal and as such some weight is given to him in consideration of this factor.

Persons in Australia whose visa would be cancelled under s.140.

1. The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s.140 of the Migration Act 1958 (‘the Act”). According to the Departments records there are no person in Australia whose visa may be cancelled under s.140 of the Act.

2. Accordingly, the Tribunal places no weight on this consideration in the applicant’s favour.

Any breach of international obligations Australia may have as a result of the applicant’s visa being cancelled.

1. The circumstances of this case are such that they would not engage Australia’s international obligations and therefore the Tribunal does not give any weight in favour of the applicant in making this decision. 

Other relevant factors

1. Having considered the evidence presented by the applicant both at the hearing and before the delegate, the Tribunal is satisfied that there are no other relevant factors in relation to this case. 

2. Therefore, 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 573 Higher Education Sector visa.

Jason Pennell
Senior Member