Xu (Migration) - [2023] AATA 1216

Xu (Migration) [2023] AATA 1216 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hai Xu
REPRESENTATIVE:  Mr Michael Kah (MARN: 9256535)
CASE NUMBER:  2108660
HOME AFFAIRS REFERENCE(S):          BCC2021/496352
MEMBER:Penelope Hunter
DATE:4 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 May 2023 at 4:25pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – enrolment in a registered course – gap in studies – applicant charged with criminal offences – limited academic progress – academic misconduct – relationship breakdown – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 119, 120, 140, 359
Migration Regulations 1994, Schedule 2 cl 573.111; Schedule 8, Condition 8202; r 2.43
CASES
Alam v MIMIA [2004] FMCA 583
Fang v MIMIA [2004] FCA 1387
Krummrey v MIMIA (2005) 147 FCR 557
MIMA v Hou [2002] FCA 574
Shrestha v Minister for Immigration and Multicultural Affairs [2001] FCA 359
Zubair v MIMIA (2004) 139 FCR 344
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 June 2021 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(fa)(i) of the Act on the basis that the delegate was not satisfied that the applicant was a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 23 August 2023 the applicant was initially invited to attend a hearing before the Tribunal to give evidence and present arguments on 15 September 2023.
Following receipt of submissions on behalf of the applicant on 14 September 2022, the hearing was rescheduled and the applicant appeared before the Tribunal on 1 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review, and his representative participated in the hearing.
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
Non-disclosure certificate
The Department issued a certificate of non-disclose pursuant to s 375A of the Act on 8 July 2022, in respect of certain identified folios in the Department file. Under s 375A of the Act, a delegate of the Minister may certify in writing that the disclosure of any matter contained in the document, or of the information contained within, would be contrary to public interest.
The operation of s 375A Act is dependent on the existence of a valid certificate. The relevant certificate is signed and dated by the identified officer. It sets out the reasons for the claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Xu (Migration)

Details

AGLC: Xu (Migration) [2023] AATA 1216
Case: [2023] AATA 1216
Decision Date: 4 May 2023

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 500 (Student) visa. The applicant, a citizen of China, had been charged with criminal offences, spent time in custody, and pleaded guilty to a related charge. The Tribunal was required to consider whether the grounds for cancellation existed and whether any international obligations or other relevant matters warranted a different outcome.

The primary legal issues before the Tribunal were whether the applicant's conduct and academic progress justified the cancellation of his visa, and whether the Department's use of a non-disclosure certificate under section 375A of the Migration Act 1958 (Cth) was valid. The Tribunal also considered whether the cancellation would breach Australia's international obligations, such as non-refoulement, or affect the best interests of any children, although the applicant had no children and no fear of returning to China.

The Tribunal found that the non-disclosure certificate was validly issued and that the information it protected, relating to the applicant's arrest and criminal charges, was relevant to the visa cancellation. The applicant's criminal conviction was considered a significant factor, as it demonstrated conduct contrary to the purpose of his student visa and potentially constituted a public interest ground for removal. The Tribunal rejected the applicant's submission that the stress from his legal troubles excused his unsatisfactory academic performance, noting his guilty plea and lack of remorse. The Tribunal concluded that the material before it, taken as a whole, supported the cancellation of the visa.

The Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCENon-disclosure certificate The Department issued a certificate of non-disclose pursuant to s 375A of the Act on 8 July 2022, in respect of certain identified folios in the Department file. Under s 375A of the Act, a delegate of the Minister may certify in writing that the disclosure of any matter contained in the document, or of the information contained within, would be contrary to public interest. The operation of s 375A Act is dependent on the existence of a valid certificate. The relevant certificate is signed and dated by the identified officer. It sets out the reasons for the claim of confidentiality, being the disclosure of lawful methods of preventing, detecting and investigating breaches or evasions of law which would be likely to prejudice the effectiveness of those methods. A copy of the certificate was provided to the applicant on 30 August 2022, and submissions were invited as to validity. The applicant was further advised that the Tribunal could reveal that the information generally related to communication provided to the Department by other agencies regarding matters which were disclosed to the applicant. It was further noted that the relevant information was the subject of the notice pursuant to s 120 of the Act dated 8 April 2021 and sent to the applicant for comment and was contained in the decision record of the delegate. The information related to events which occurred on 19 November 2020 where the applicant was arrested by the NSW Police and charged with criminal offences, his period in custody and release on bail. The applicant was further advised that if arising from further evidence presented at the hearing, there is any information which may give rise to an adverse inference, the Tribunal would seek to discuss the matters with the applicant at hearing pursuant to the procedure under the Act. On 8 September 2022, the Tribunal received a response from the representative from the representative of the applicant claiming to be unsure of the context of the information covered by the certificate and therefore were unable to provide comment. A request was further made to release the Provider Registration and International Student Management System (PRISMS) records of the applicant so that he could provide a full response. On 12 September 2022, the Tribunal released to the applicant a copy of the PRISM records contained in the Department file together with a copy of his enrolment records obtained by the Tribunal. No further submissions in relation to the certificate were received by the Tribunal prior to the hearing. At the hearing, on 1 November 2022, the Tribunal invited submissions in relation to the validity of the Certificate and no dispute was advanced by the applicant or his representative. The Tribunal is satisfied that the certificate has been appropriately executed and a valid reason for the issue of a certificate has been demonstrated. The Tribunal finds that the certificate is valid. Does the ground for cancellation exist?

Decision

Reasons for decision

Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Penelope HunterMemberATTACHMENT – Extract from reg 2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

The Tribunal gives this consideration neutral weight. Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation The applicant is a citizen of China and there is no information that his visa cancellation would impact on Australia’s international obligations. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations. Nor has the applicant applied for refugee status or invoked Australia’s protection obligations. The applicant told the Tribunal that he had no fear of returning to China and intended to do so upon the completion of his Diploma of Business. The applicant has no children whose interests the Tribunal is to consider. There is no weight attributed to this factor. Any other relevant matters The applicant has conceded that in December 2020 he was arrested and charged with several offences relating to the alleged violent enforcement of a gambling debt. He also spent several months, between December 2020 and March 2021, in criminal custody awaiting trial in relation to the offences. He claims that the stress caused from this event is relevant in the assessment of the Tribunal of his performance at his studies in 2021, and an explanation for his further unsatisfactory conduct as a student. Yet, in submissions to the Tribunal it is claimed that regard should not be had to this matter in considering whether the applicant breached his visa condition, and his representative’s submissions of 12 September 2022 only refer to the applicant yet having to enter a plea. When questioned at the hearing the applicant told the Tribunal that he had entered a plea of guilty to a charge relating to the offence of intentional harm in December 2021. He told the Tribunal that he found his parole conditions too harsh and if the court case continued it could have gone on for another 18 months. He expressed no remorse for events leading to the conviction. He claimed that he was sentenced to a period of 10 months community service which he has now completed. The Tribunal considers the conviction to be relevant for several reasons. Firstly the applicant is responsible for his conduct and to the extent that it impacted upon his studies as a student it is not an excuse for any breach by the applicant. Secondly, it involves criminal conduct which is contrary to the purposes for which the visa was granted. Finally, this conviction may also give rise to a reason for the applicant’s removal from Australia on public interest grounds. The applicant has provided no explanation of the circumstances in which the charges arose. With his plea of guilty to a related charge there is an acceptance of culpability for the offence. The Tribunal does not have further details of how the matter progressed through the court or the proceedings. In these circumstances it also regards this factor as having no weight in favour of the applicant.