Yao (Migration) - [2020] AATA 853

Yao (Migration) [2020] AATA 853 (18 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rui Yao
CASE NUMBER:  1900120
HOME AFFAIRS REFERENCE(S):          BCC2018/5624361
MEMBER:Mr S Norman
DATE:18 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 18 February 2020 at 10:14am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – criminal convictions –whether applicant is a threat to the health, safety or good order of the Australian community– applicant is not a genuine student – de facto partner’s permanent residency visa application– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 140
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 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). The Department delegate’s decision was lodged with the Tribunal.
The delegate cancelled the visa under s.116(1)(e)(i) of the Act, on the basis that the applicant was found to be subject to criminal charges (discussed below). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 12 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his agent (with respect to the below-mentioned criminal proceedings, in which the agent had also acted). 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 by his registered migration agent.
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
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) of the Act. 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.
The Tribunal notes that substantial evidence and submissions were lodged by and on behalf of the applicant. Though not all have been expressly referred to herein, the Tribunal has had regard to all evidence and submissions prior to finalising this decision.
Does the ground for cancellation exist?
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…

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 Yao (Migration)

Details

AGLC: Yao (Migration) [2020] AATA 853
Case: [2020] AATA 853
Decision Date: 18 February 2020

CaseChat Overview and Summary

This matter concerned an appeal by Rui Yao, also known as Le Yao, a Chinese citizen, against the cancellation of his Subclass 500 (Student) visa. The visa had been granted on 13 November 2017. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation following the applicant's arrest and charge with serious offences under the *Crimes Act 1940* (NSW) on 24 November 2018. Although subsequently convicted of the lesser offence of reckless wounding, the applicant's presence in Australia was considered a potential risk to the health, safety, or good order of the Australian community.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) of the *Migration Act 1958* (Cth) was established, and if so, whether the discretion to cancel the visa should be exercised. Section 116(1)(e) permits cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community. The Tribunal considered the meaning of "good order" in this context, referencing *Tien v MIMA* (1998) 89 FCR 80, which indicated it concerns activities with a public impact or that might disrupt the observance of the law or create public disruption.

The Tribunal reasoned that the applicant's criminal conviction, even for a lesser offence, satisfied the ground for cancellation under s 116(1)(e), as the power to cancel can arise from a possibility of risk. Furthermore, the Tribunal found that the applicant was not a genuine student, noting significant periods of non-study, cancelled course enrolments, and the application for a Protection visa followed by a Skilled visa application as a de facto partner. These actions indicated a change in the applicant's purpose for remaining in Australia, which was not consistent with the conditions of his Student visa.

The Tribunal concluded that, considering all the circumstances, the discretion to cancel the visa should be exercised. Accordingly, 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 EVIDENCE 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) of the Act. 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. The Tribunal notes that substantial evidence and submissions were lodged by and on behalf of the applicant. Though not all have been expressly referred to herein, the Tribunal has had regard to all evidence and submissions prior to finalising this decision. Does the ground for cancellation exist? 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]. 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. The applicant’s name is Rui YAO – though he is also known as Le YAO.[1] The applicant was said to be a ‘extremely successful entrepreneur’.[2] The Chinese citizen applicant was granted a Student (subclass 500) visa on 13 November 2017 (expiry date 28 October 2020). By Notice of Intention to Consider Cancellation (NOICC[3]) of that visa dated 5 December 2018, the applicant was advised the Department had received information from the New South Wales (NSW) Police that on 24 November 2018, he was charged with the following offences: · Armed with intent to commit indictable offence – s.114(1)(a) Crimes Act 40/90 · Wound with intent to cause grievous bodily harm – s.33(1)(a) Crimes Act 40/90[4] [1] See Personal Statement of Ranran TANG dated 12/12/2018, at [10-11]. [2] [18]. [3] Department – from folio 46. [4] The applicant was subsequently convicted of the lesser offence of ‘reckless wounding’.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Mr S Norman Member

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) of the Act, 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 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’. Regarding the purpose of the applicant’s travel to and stay in Australia, the delegate noted that according to PRISMS, the applicant had completed the following courses since his Student visa was granted on 13 November 2017: · English Language Program (Beginner to Advanced) – 21 August 2017 to 13 October 2017· General English Beginner to Advance – 25 June 2018 to 16 September 2018· General English Beginner to Advanced – 15 October 2018 to 24 November 2018 (at time of arrest) It was also noted the applicant had been enrolled in the following courses but had subsequently cancelled the enrolment: · English Language Program (Beginner to Advanced) – 13 November 2017 to 19 January 2018· Certificate IV in Commercial Cookery – 8 January 2018 to 16 June 2019· English Language Program (Beginner to Advanced) – 19 February 2018 to 13 April 2018· English Language Program (Beginner to Advanced) – 14 May 2018 to 9 July 2018· Diploma of Leadership and Management – 4 June 2018 to 31 May 2020[17][17] Evidence of the applicant’s proposed course work was also lodged at hearing. At the time of the delegate’s decision, the applicant had been enrolled in:· Gen English Beginner to Advanced – 25 February 2019 to 19 May 2019· Certificate IV in Small Business – 3 June 2019 to 31 May 2020 After considering the applicant’s study progress, the delegate noted that since he had been granted his Student visa on 13 November 2017, he had not studied for approximately six months. This was said not to support a conclusion the applicant’s intention for remaining in Australia is for the purpose of study. Further, according to Department records, on 29 January 2018 the applicant had applied for a Protection visa (PV), which further indicated his purpose for remaining in Australia had changed. As noted by the delegate, the applicant applied for a PV around the time he cancelled his enrolment in several courses of study. Applying for a PV did not exclude the applicant from continuing to study in Australia, and the delegate believed the cancellation of his enrolment was further indication the applicant’s intention for remaining in Australia was not for the purposes of study. Be that as it may, the delegate noted the applicant had withdrawn his PV application on 10 October 2018 (immediately prior to his scheduled Department interview). The delegate also noted that Department records indicated that on 13 September 2018, a Ms Lijia YAN had applied for a Skilled – Independent (Subclass 189) visa. The applicant was included as a secondary applicant on the basis of his being her de facto partner. This further indicated that at this time the intention of the applicant was not to remain in Australia for the purposes of study. In his response to the NOICC, the applicant referred to his intention to pursue this Skilled visa application. The delegate also noted the applicant may be able to seek a refund of at least a portion of monies he may have paid for any studies he had subsequently withdrawn from.