Yao (Migration)

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 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’.
As noted by the delegate in their decision, the NSW Police advised that the applicant had (at least initially) been refused bail and was then remanded in custody at the Metropolitan Remand and Reception Centre, Silverwater Correctional Complex until 18 December 2018, when he was scheduled to appear at the Central Local Court in relation to these charges. As also noted by the delegate, the NSW Police Fact Sheet alleged the following:
·     the victim was not known to the applicant though they were associated by mutual friends
·     after drinking and socialising at the Marquee Nightclub at the Star City Casino on Friday 23 November 2018, the applicant attended an “after party” or private residence at about 3:40am on Saturday, 24 November 2018
·     the private residence comprised of an open plan living/dining and kitchen area
·     the victim had stood in the kitchen drinking and socialising. The applicant had arrived after the victim with a group of friends and had sat in the lounge room
·     not long after the applicant’s arrival an argument began between parties in the lounge room. The applicant walked into the kitchen and began opening and closing cupboards with apparent ferocity. He removed a large “meat cleaver” from one of the drawers and walked towards a man seated on a chair close to the kitchen (being the victim)
·     the victim overhead the applicant saying to the group “if you want to fight, I will fight you”. The applicant was then told to put the meat cleaver down
·     the victim, who had been sitting down, then stood up “in fear”. The applicant then pointed the meat cleaver at the victim and it was held approximately 30 cm from his face. The victim said “don’t point the knife at me”
·     the applicant moved the meat cleaver to within 10 cm of the victim’s face and the victim said “don’t be silly”
·     the applicant responded “do you believe I am going to chop you?”, and the victim said “don’t do silly thing”
·     without warning, the applicant raised his right hand, holding the meat cleaver above his shoulder and brought it down on the left upper arm/shoulder of the victim causing a large gaping laceration and immediate pain with profuse bleeding
·     several other party-goers separated the applicant and the victim and the victim went into one of the bedrooms to attend to the bleeding and call ‘000’
·     the applicant then started to cut himself on his left arm with the meat cleaver. He made several superficial cuts and one larger injury. While cutting himself he made utterances about his girlfriend breaking up with him
·     the police and ambulance officers arrived and the applicant was placed under arrest
·     the applicant and the victim were taken to hospital where the victim received eight stitches
·     the applicant was then transferred to Redfern Police Station where he had his rights read to him and he participated in an Electronically Recorded Interview for Suspected Persons. He provided details of the night before and after the incident but nothing of the incident itself[5]
[5] Also see Department – from folio 36; and from folio 63 (reverse side).
Amongst other things, a subsequent undated ‘Statement of Agreed Facts’ stated:[6]
·     at approximately 4:48am, there was tension in the room between the applicant and friends of the applicant’s host; and reference was made to an argument
·     during the argument the applicant went to the kitchen, commenced to open and close drawers, and picked up a meat cleaver from the kitchen bench
·     the applicant “mumbled some words to a group of males whilst holding” the implement. He was told to put the knife down but refused. He pointed the knife at the victim with his right hand outstretched. At this time the victim and the applicant were not known to each other and had not spoken that night
·     The victim told the applicant not to point the knife at him but the applicant moved closer towards the victim and held the implement about 10 cm away from the victim’s nose. The victim told the applicant not to be silly. The applicant said words to the effect, “do you believe I’m going to chop you”. The victim said don’t be silly
·     whilst then holding the meat cleaver, the applicant raised his right arm above his shoulder and in a downward motion struck the victim on his left upper arm with handle of the meat cleaver. The victim immediately saw blood come out.
·     Other people then approached and separated the applicant and the victim. Another person called 000 and asked for the police. There was then some movement within and outside the apartment.
·     CCTV footage depicted discussion between the victim and the applicant whilst the applicant was still holding the implement. Amongst other things, the applicant told the victim to “cut [him] back”. The victim refused. The applicant had then cut himself a few times. The applicant eventually put the implement down and said his girlfriend had broken up with him and he was very sad
·     The victim was then taken to POW hospital and treated for his injury. He received seven searches to the wound
·     It was also recorded the applicant did not know how much alcohol he had consumed
[6] Lodged with the Tribunal on 28 November 2019.
Submissions lodged on 28 November 2019, also included a “Sentencing Bench Book – Particular offences, Assault, wounding and related offences”.
Submissions lodged on 28 November 2019, also included a statutory declaration sworn by the victim on 15 October 2019. Amongst other things, it was stated:
·     there were discrepancies between “what really happened” and the statement of agreed facts
·     the victim had approached the police officer in charge to inform them of this but was advised that amending the facts would not do anything. He was advised that given there was an injury, the applicant would be liable to reckless wounding
·     The victim now “just wants the AAT to know the truth”
·     At the time of the incident, the applicant was “already visibly drunk”. After arriving at the party, they started playing drinking games”
·     The victim said there was no tension in the room as was stated in the Statement of Agreed Facts. There was only occasional excited shouting during the drinking games. The victim was not playing a drinking game
·     a second discrepancy related to a drinking game where participants would have to open a beer bottle “using some form of trick”. If anyone had been unable to do this they had to consume the entire bottle. When it became the applicant’s turn he attempted to use a butter knife but failed and as a result was supposed to consume the entire beer bottle. The victim then believed the applicant referred to the butter knife not being adequate and had then entered the kitchen to find something more appropriate
·     The victim said he also was not the only person speaking with the applicant
·     The victim also said evidence of the applicant cutting him suggested it was an intended movement directed at the victim; and this was not the case
·     what had happened was that when the applicant returned with the implement it appeared dangerous, particularly given the applicant was already intoxicated, and people were “concerned that an accident may happen”. It was in that context that the victim, along with other persons, approached the applicant and asked him to put down the implement.
·     The victim did concede that he told the applicant not point the knife at him. But this was in the context of “all of us asking him to put down the knife not pointed at anyone”. Victim also conceded that he told the applicant not to be so silly. However this was in the context of “us asking him to calm down”
·     However the applicant was said to have “appeared to be quite insistent”. The victim then said it was “during the process of us trying to take the knife away from him, that [the victim] sustained injury that led to the criminal charge”
In the response to the NOICC, the applicant said the charges were based on inaccurate and incorrect facts; that an alternate version of events would be provided by “numerous witness statements”; that the charges were a misunderstanding; that the applicant did not engage in the acts for which he had been charged; that the charges are “very possibly (if not definitively) defective, even vexatious”. It was also claimed that the delegate could not draw a “logical or rational link concluding the applicant poses a risk” to the community. The applicant believes the alternate evidence will result in an acquittal by the courts, though “criminal cases may take up to 14 months and [the] outcome will not be forthcoming within the Department timeframes”.
The applicant also provided the following:
·     a written statement by the victim, Zizhou LIU dated 10 December 2018 (in Chinese with an English translation) and a copy of his passport bio-data page (claiming inter alia the police misunderstood the incident)
·     numerous statements (in Chinese with English translations) from people claiming to have been at the scene and to have witnesses the incident; and from persons who know the applicant, which claimed inter alia:
·     (words to the effect) the applicant is of good character
·     the facts are different from what was described in the NSW Police Fact Sheet
·     the injury to the victim was not caused in the way described in the NSW Police Fact Sheet
·     the whole thing was just a misunderstanding and had nothing to do with the applicant
·     a Court Attendance Notice[7] stating the applicant was to appear at Parramatta Local Court on 25 November 2018
[7] Department – folio 37 (reverse side).
·     NSW Police Fact Sheet
·     reason for bail refusal decision by Police officer dated 24 November 2018
·     a personal statement by Ms Ranran TANG,[8] including her visa entitlement verification online as identification claiming:
[8] Department – from folio 39.
·     she resides in NSW and had known the applicant and been good friends with him since approximately 2003
·     the applicant is known by the nickname Le YAO
·     attesting to his good character and hard work as an entrepreneur
·     the applicant would never resort to violence or lose control of his emotions and always kept his cool, no matter what happened
·     appealing to the Department not cancel his Student Visa and that this would affect his permanent visa application
·     a personal statement by a Mr Yuchuan CAI,[9] being the husband of Ms Ranran TANG, and a copy of his bio data page from his passport, claiming:
·     he first met the applicant in 2014
·     he found him to be composed, mature and a wise person
·     his wife is close friends with the applicant
·     the two children are extremely fond of the applicant, he was very kind and the applicant had a good character, and was a keen observer and a thinker who is always in control of himself and never loses his temper
·     appealing to Department not cancel his Student visa
[9] Department – from folio 42.
The delegate and the Tribunal noted the (words to the effect) significant differences between the information provided in the NSW Police Fact Sheet and the subsequent evidence provided by witnesses and the victim. However, the delegate was satisfied the new witness evidence was vague and did not provide any (plausible) alternative account of the incident (or why the differences arose). The delegate also noted the applicant had provided a document detailing the reason he was not provided bail, in which one of the reasons was “the strength of the prosecution case. … police have obtained several witness statements and forensic evidence” (at hearing, the Tribunal was advised that bail was subsequently granted in December 2018). The delegate noted the applicant’s new witness/s claimed they were prepared to testify in court, however, the delegate noted the witnesses had yet to testify.[10]
[10] Department – from folio 28; and from folio 39 (new witness statements).
In their submission of 10 December 2018,[11] the migration agent submitted (words to the effect), the above witness statements constituted “overwhelming evidence” of the innocence of the applicant; and at the very least when considering whether the applicant constitutes a risk to the community. The agent also noted the delegate must consider the material Department guidelines provided. After then conceding the relevant provision provides for a “possibility that the person may be a risk to the community”, the agent requested that the witness evidence be given due consideration. The agent also believe the Department should only proceed to cancel the applicant’s visa if the charges resulted in him being convicted.
[11] Department – from folio 22.
The delegate also noted that the victim had subsequently stated that when the incident occurred people had been consuming alcohol; that after he was injured it was a friend who had called the police; the police officers misunderstood what had occurred; and the victim was then attempting to claim the applicant had not injured him on purpose. Be that as it may, the victim had conceded it was the applicant who had in fact injured him. The victim also conceded he sought medical attention after the incident.
The delegate then noted there was no evidence the charges had been dropped however, on 18 December 2018, the NSW Police advised the Department the court had granted bail to the applicant. Though, “strict bail provisions had been put in place including, daily reporting to Surrey Hills Police, a residence curfew between 9pm and 6am, surrendering his passport to Central Local Court, and not to leave NSW or approach international departure points”.
The delegate noted the applicant was in Australia and was studying English; that he had said he had complied with all visa conditions; that if his visa is cancelled he would be unable to complete his studies or possibly apply for a Permanent visa; that his partners permanent residency visa may be impacted causing tremendous hardship to them both; that he had “expended significant resources completing the required studies”; that the applicant is of general good character with no history of criminal and or violent conduct in either Australia or China. It is also claimed he was well loved and respected by his friends.
By migration agent submissions dated 10 December 2018, the Department was ‘invited’ to consider cancellation only if the applicant was convicted.[12]
[12] [26].
Amongst other things, in the subsequent migration agent/solicitor statutory declaration dated 1 October 2019,[13] it was stated:
·     the agent (deponent) represented the applicant in his criminal proceeding that led to the cancellation of his Student visa
·     the agent and two barristers (one silk), took detailed instructions. They concluded the applicant was intoxicated at the time of the offence; the applicant did in fact cause the wounding to the victim’s shoulder; this was in the context of the applicant wanting to use the meat cleaver to perform a party trick
·     the agent and the barristers believed the applicant would have been acquitted of the original charges but may well be convicted by a jury of reckless wounding. The “strategy” was to negotiate with the prosecution to reduce the charges to reckless wounding on the basis of a guilty plea. This was agreed to by the Crown. The applicant subsequently agreed to this course of action. That means, it was agreed that the injury was caused by the applicant’s negligence
[13] Lodged on 28 November 2019.

However, and prior to the conviction being recorded, the delegate noted the incident and that after same the applicant was claimed to have self-inflicted wounds; and had muttered about breaking up with his girlfriend. The delegate then said that based on the evidence before them they were satisfied the applicant may be or might be a risk to the community. The delegate was not satisfied by the more recent evidence to the contrary.
In their decision, the delegate then said the fact that the NSW Police had brought charges against the applicant was sufficient evidence that there was a case for him to answer regarding the November 2018 incident. The delegate then said the charges suggest the applicant had a ‘propensity’ for violent and dangerous behaviour and a general disregard for Australian laws and values. Further, the applicant’s alleged behaviour appeared to have been unprovoked, unwarranted and to involve extreme violence against a person unknown to him. Based on the information before the delegate, they were satisfied the applicant’s continued presence in Australia may be risk the safety of the Australian community as he may engage in further acts of unprovoked, unwarranted and extreme violence against other persons. Therefore the delegate was satisfied the applicant had breached s.116(1)(e)(i) of the Act, and that his visa may be cancelled.
At hearing, the Tribunal was advised the applicant had been convicted of ‘reckless wounding’. That conviction had been handed down around July 2019, and the applicant had then been subject to an 18 month Intensive Correction Order (ICO). The Tribunal noted that it was not subject to the rules of evidence and the finding about whether an applicant may be or might be a risk to the community, should not be considered a standard of proof. Be that as it may, the Tribunal believed that it was unable to look behind the findings of fact giving rise to the conviction (‘wounding and reckless behaviour giving rise to actual bodily harm to a person’). The agent said (words to the effect) this was a combination of the reckless consumption of alcohol and the wounding of the victim (something the applicant said at hearing was only a ‘scratch’ but which none-the-less caused some person/s at the incident to call for an ambulance).
After noting the claimed discrepancies between the Police Fact Sheet and subsequent statements, the agent noted the victim was in China and could not be present at hearing for some time (discussed again below). The Tribunal advised that it would not necessarily adopt all the evidence of the victim, particularly if that was inconsistent with the Criminal Court findings.
The agent believed that in this case, the Tribunal was able to look behind the findings of fact made by the Criminal Court, for the purposes of assessing whether the applicant may be or might be a risk to the community. That was because inter alia even the victim was claiming the incident was (ie) an innocent mistake. That being said, the Tribunal does accept the applicant was convicted of reckless wounding.
Regarding whether the applicant constituted a risk to the community, by psychologist letter dated 21 October 2019 (lodged with the Tribunal by email dated 26 November 2019), it was claimed:
·     the applicant attended for an initial session on 30 August 2019
·     the applicant attended subsequent sessions on 13 September and 27 September 2019
·     evidence from other sources was referred to
·     it was claimed the purpose of the referral was to provide a treatment plan for the applicant to abstain from alcohol use in future daily life (though the applicant disliked the taste of alcohol he is reported to often drink due to work culture in China)
·     it was claimed the applicant said he did not know the victim prior to the aforementioned incident
·     details of the applicant’s background and incidents he had experienced were set out; and inter alia reference was made to the applicant’s “feelings”
·     reference was also made to prior medical treatment in China in 2017
·     reference was made to the fact the applicant had no family member in Australia though he said he was in a stable relationship with his current partner who he previously worked with
·     the applicant was reported to have a distant but amicable relationship with his parents and would provide some level of financial support for them
·     details of the psychological testing was then set out - and that the applicant experienced normal levels of depression, anxiety and stress. It was reported the applicant’s level of distress had been reduced when his previous court case had ended and that he is now occupied with attending English classes, his work and business
·     it was said the applicant’s alcohol dependent score, indicated a low risk / or was in excess of the low-risk guidelines over the past year. The applicant was said to have felt guilty after drinking
·     it was said the applicant learnt about (eg), violence and or suicide death while in immigration detention and he also learnt about an unexpected death of a family member. He also referred to a serious injury and harm caused to someone else. Reference was made to a number of symptoms including nil nightmares, flashbacks, emotional distress and physical reactivity. The applicant “moderately blamed himself for the stressful experience”; though he did not report any difficulty recalling features of the traumatic event. The applicant now had no reported self-harm or suicidal thoughts
·     Reference was made to the closing down of the applicant’s business in the past two years and the end of a relationship
·     it was said the applicant’s symptoms are consistent with an adjustment disorder unspecified according to the diagnostic and statistical manual of mental disorders 5 (DSM-5). This is characterised by the presence of significant symptoms of psychological distress and significant impact on function in various domains, triggered by a change in the environment or the presence of external stresses. It was also reported the applicant had difficulty in concentration, sleep and decrease in activities he used to enjoy. He also was reported to have a sense of hopelessness
·     However, his current presentation did not include or meet the specifier of depressed mood
·     Further his current symptoms did not meet the full criteria of post-traumatic stress disorder according to DSM-5
·     the applicant is reported as claiming his current goal is to abstain from alcohol
·     it was then said the applicant was “likely to benefit from psychology sessions with Amanda and speaking to the psychologist to address his current distress”. These would:
·     address the maintenance of abstaining from alcohol …
·     Psychological education on emotions and managing emotions …
·     developing healthy coping strategies …
·     goal setting on medium to long-term …
·     sleep hygiene to address sleep disturbances
·     further monitoring level of mood …
·     consultation with a psychiatrist or a GP …
·     Finally, it was claimed that with the applicant’s willingness to engage in treatment, study and work, he is more likely to find healthy coping strategies to make improvements on his mental health. It was also claimed the applicant had abstained from alcohol since November 2018 and had no major distressing symptoms relating to the traumatic events. It was also claimed the applicant expressed an eagerness to understand his emotional state
By sizable new submissions lodged at the hearing scheduled for 28 November 2019 (which hearing had to be re-scheduled), it was claimed the applicant is not a threat to the health, safety or good order of the Australian community. It was claimed the applicant had no record of past offences and therefore is a person of good character. It was claimed the offence was only committed under the influence of alcohol (though the psychologist report suggests the applicant’s symptoms are consistent with symptoms of an adjustment disorder unspecified according to the diagnostic and statistical manual of mental disorders 5 (DSM-5)). It was claimed that if the applicant was no longer at risk of alcohol abuse, it could be reasonable to conclude he is not a risk to the health, safety or good order of the Australian community. The agent then said ‘the evidentiary threshold of the above submission … could only be met by way of expert evidence’.
It was also claimed the applicant was now seeking treatment for his alcohol consumption (though he allegedly had not consumed alcohol since November 2018 - which the Tribunal accepts).
By email of 29 January 2020, the agent requested a further hearing delay (the sixth such request). The agent stated:
We refer to the above matter and the Tribunal's invitation to attend the hearing on 12 February 2020.
First, we have received the treating psychologist's e-mail below indicating the time frame for the applicant's further treatment, noting that the final report will be ready in April.
Secondly, the writer of this e-mail has contacted the victim in the original criminal proceedings, Zizhou LIU, for the purpose of attending the hearing as a witness in support of the applicant's application. We note that Mr. Liu has previously submitted a statement in support of this application. The writer of this e-mail was advised by Mr. Liu that Mr. Liu is currently in mainland China and is unable to decide as to when he will return.
In the circumstances and unless the Member is minded to proceed with the hearing without the final psychologist's report and the appearance of Mr. Liu, and to have their evidence heard/reviewed separately in another hearing, we kindly request that the hearing be adjourned to allow the evidence and witness to be ready.
The Tribunal declined this request. First, the Tribunal had provided substantial time to lodge a psychologist report and without more, it did not appear necessary to wait for a ‘final report’ in April 2020 (particularly as a substantial psychologist report dated 21 October 2019 had been lodged). At hearing, the agent explained they had asked the psychologist (words to the affect) to take the time needed to resolve the applicant’s problems. Second, Zizhou LIU had already provided written report/s, could presumably provide another should the applicant wish him to do so, and the Tribunal did not believe it necessary to delay the hearing while Mr LIU decided when to return from China. Third, without more, the Tribunal is not satisfied it is necessary to have any further evidence heard ‘at another hearing’ (as was requested). The Tribunal therefore decided to proceed to hear the case on 12 February 2020, and had advised the applicant accordingly.
That being said, at hearing the applicant explained that he was not addicted to alcohol and that he did not have any (or any substantial) mental health issues (the applicant’s psychologist did not agree with the applicant’s self-assessment – discussed below). However, the Tribunal noted the November 2018 incident (with the meat cleaver) was apparently either sourced in mental health issues and/or alcohol consumption. The applicant did concede the November 2018 incident occurred around the time he was subject to business difficulties, and that he had separated from a former girlfriend.
As noted in the above psychologist report the applicant had prior health issues in China in 2017, for what he referred to at hearing as ‘mild depression’. The psychologist had also explained the applicant’s new symptoms were consistent with an adjustment disorder unspecified according to the diagnostic and statistical manual of mental disorders 5 (DSM-5). This is characterised by the presence of significant symptoms of psychological distress and significant impact on function in various domains, triggered by a change in the environment or the presence of external stresses.
The Tribunal is aware that a medical report which provides a reasoned clinical diagnosis, should assist in the decision-making process.[14] Further, and without very good reason, it is not appropriate for a decision maker to substitute their own (possibly) lay opinion for a well-reasoned medical opinion on a matter that is properly the subject of that expert opinion.[15] However, and as noted at hearing, there are apparently high rates of relapse of alcohol abuse,[16] though persons who seek professional assistance tend to fair best. The psychologist also was of the view that the ‘applicant’s willingness to engage in treatment, study and work, is more likely to give rise to healthy coping strategies to make improvements on his mental health’. But in the present case, the applicant did not accept he was addicted to alcohol (or that he had any ongoing problem with alcohol), and the Tribunal accepts that he ceased drinking alcohol in November 2018.
[14] See generally MZXTT v MIAC [2008] FMCA 1007 (10 September 2008) Riley FM from [37].
[15] MZXTT v MIAC [2008] FMCA 1007 (10 September 2008) Riley FM at [37].
[16] ‘Why Do Alcoholics and Addicts Relapse So Often?’, US NEWS, 24 April 2017, accessed 12 February 2020; and ‘Rates and predictors of relapse after natural and treated remission from alcohol use disorders’, US National Library of Medicine, , accessed 12 February 2020.
If the Tribunal then considers the extent to which the applicant’s mental health was principally responsible for the November 2018 incident (and to what extent this may have caused the applicant to consume alcohol), this is something for which he appears to be treated, and the agent advised at hearing that his recent discussion with the psychologist was that the applicant was a low risk of re-offending (the Tribunal notes the psychologist advised the applicant’s alcohol dependent score, indicated a low risk / or was in excess of the low-risk guidelines over the past year).
However, this is the second claimed occasion the applicant’s mental health had caused him to apparently need professional assistance. The first occasion was in China in 2017 for allegedly mild depression; though as the applicant also advised the wound for which his victim sought hospital assistance was a ‘scratch’, it may be the applicant’s explanation of the China 2017 episode, was not fully accurate. Also, that the first occasion the applicant attended the psychologist in Australia was some nine months after the November 2018 incident, is concerning; though perhaps a positive step for the applicant. However, and as noted herein, the applicant did not believe he had any (or any substantial) mental health issues.
As also noted in the psychologist report, the applicant’s symptoms are/were consistent with symptoms of an adjustment disorder unspecified according to the diagnostic and statistical manual of mental disorders 5 (DSM-5). This is characterised by the presence of significant symptoms of psychological distress and significant impact on function in various domains, triggered by a change in the environment or the presence of external stresses. The Tribunal also notes the psychologist advised the applicant had no family member in Australia though he said he was in a stable relationship with his current partner who he previously worked with.
That being said, and after considering the applicant’s evidence at hearing, the Tribunal doubted the applicant’s willingness to engage in treatment (particularly as he did not apparently think he had any, or any substantial, ongoing problems). The Tribunal is also mindful of the fact the applicant had (on at least one occasion) a mental health issue in China prior to travelling to Australia. The Tribunal also accepts the applicant’s adjustment disorder (diagnosed after the November 2018 incident), arose due to the presence of significant symptoms of psychological distress and significant impact on function in various domains, triggered by a change in the environment or the presence of external stresses. The Tribunal would hope that further triggers of this nature do not impact the applicant.
The Tribunal also notes the applicant’s claim not to be a risk to the community. However, when then considering whether the applicant 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, based on the evidence accepted herein, the Tribunal is satisfied the applicant may be, 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.
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.

At hearing, the agent explained the applicant had continued much of his study in English language courses in Australia (except to the extent he may have taken some time off in order to focus on his criminal case). The applicant also said he had commenced a ‘foreign exchange transaction’ course in Australia in the last four or five months, but that had not yet been completed.
That being said, and based on the evidence before it, the Tribunal has some doubts that the principal purpose for the applicant remaining in Australia, is for the purpose of study. However, the Tribunal none-the-less will accept the applicant’s intention for remaining in Australia, includes for the purposes of further study.
Regarding the extent of compliance with visa conditions, apart from that which is discussed herein, the Tribunal will accept the applicant had not breached other visa conditions.
Regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, in response to the NOICC the applicant said he feared that if his visa was cancelled this may have an impact on his de facto partner’s permanent residency visa application (the Skilled visa). It was also said his de facto (the Skilled visa applicant) expended significant resources to complete required studies and obtain relevant skills and assessment to achieve the necessary points for the visa. The delegate noted that if the applicant’s visa is cancelled this would not necessarily impact his capacity to apply for a permanent visa. Further, it was noted the applicant first arrived in Australia on 28 May 2017 and his relatively short period of residence in Australia may not commonly allow for the establishment of significant ties in Australia, at least when compared to those ties that have been established in his home country (and the Tribunal agrees with this; particularly as the applicant was claimed not to have family in Australia, and even though he had a partner in Australia).
As noted at the Tribunal hearing, if the applicant’s visa is cancelled, he may not be subject to the PIC 4013 penalty (that he might not be granted a temporary visa for three years from the date of cancellation), as the partner’s visa application was for a permanent visa. Be that as it may, and as noted at hearing, the Tribunal would accept that if his visa was cancelled, this may be taken into account when considering whether he should be granted a visa based on his membership of the family unit of his de facto partner (and not whether his partner should be granted the visa).
The applicant also said that if his visa was cancelled, this may cause tremendous hardship for him. When discussed at hearing, the Tribunal understands the hardship referred to by the applicant included that he wished to study in Australia and he wished to serve his 18 months Intensive Correction Order in Australia. The Tribunal accepts that if the applicant’s visa is cancelled and he is required to depart Australia, he would not be able to study in Australia, and he may not be able to complete his 18 month Intensive Correction Order.
At hearing, the Tribunal also noted the applicant (who had previously resided near Beijing, and whose mother was a reasonably successful former business person) could study in China.[18] The applicant did not dispute this but he wished to study in Australia, and the Tribunal will accept this.
[18] For instance, see DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019, from [2.33].
At hearing, the Tribunal also noted the country information (China) included that substantial improvement in mental health services were apparent. The Tribunal does not understand the applicant disputed this. The relevant country information stated:
Mental Health
2.18 Mental health services are governed by the Mental Health Law (2013; amended 2018) and the National Planning Guideline for the Healthcare Service System (2015-2020). The government has increased investments in mental health services over the last decade; however, services remain inadequate to meet demand and mental illness remains a public health challenge in China.
2.19 Estimates suggest 54 million people reportedly had depression in 2017, 173 million had a diagnosable mental illness or psychiatric disorder in 2012 (and only 15 million of the 173 million people sought treatment) …
…..
[19] DFAT COUNTRY INFORMATION REPORT, PEOPLE’S REPUBLIC OF CHINA, 3 October 2019.
2.21 Despite growing demand for mental health services, Chinese people can be reluctant to seek professional help due to social stigma associated with mental illness.[19]
Next, at hearing the applicant said that if his visa was cancelled, he and his parents would be disappointed. He said his father (formerly a driver) had a heart condition in China, and now remained at home. He said his 53-54 year old mother (who the Tribunal understands had run a successful fashion/construction business in China), had now retired. The Tribunal will also accept that though the applicant was reported to have a distant but amicable relationship with his parents, both he and they will be disappointed if his visa is cancelled.
Regarding the circumstances in which the visa cancellation arose, that was due to the applicant having been charged on 24 November 2018 due a specified incident. The Tribunal notes the circumstances giving rise to the cancellation (the November 2018 incident), have been discussed more fully when considering whether the applicant may constitute a risk to the Australian community. The Tribunal does not propose to repeat that discussion here.
Regarding the applicant’s past and present behaviour, there is no evidence before the Department or the Tribunal that the applicant had been uncooperative with the Department or the Tribunal.
Regarding whether there would be any consequential cancellation under s.140, the Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled.
Next, if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to be detained under s.189 and removed under s.198 of the Act. However, there is no evidence before the Tribunal that has satisfied me the applicant would be subject to indefinite detention. Further, after considering the evidence the Tribunal is satisfied the applicant could temporarily retain his Bridging visa in order to remain in the community to organise his affairs prior to departing Australia.
The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act, and would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation (this has also been referred to above).
Next, as noted herein the Chinese citizen applicant first applied for, and then withdrew (immediately prior to the scheduled PV interview), a Protection visa in Australia. At hearing, the applicant said his former business partner (who remained in China), was arrested shortly after the applicant arrived in Australia. The former business partner was arrested due to his religious opinion and ‘terrorism’ concerns. The applicant claimed not to have any religious belief and that when he subsequently ascertained that he was not imputed with any adverse views by the Chinese authorities (or anyone else in China), he withdrew the PV. That being said, based on the evidence before it, the Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicants visa is cancelled.
Finally, the applicant said (words to the effect) he had already been penalised in Australia and he wished to be given a second chance. But the Tribunal had no evidence the applicant could not pursue studies and or a career in China. The Tribunal does accept that if the applicant’s visa is cancelled, this may be taken into account when assessing whether he should be granted a visa as a member of his de-facto partner’s family; and this may eventuate in the separation of the applicant and his de facto partner. The Tribunal also accepts the applicant wished to study in Australia. The Tribunal also accepts the applicant and his parents may be disappointed if the applicant’s visa is cancelled.
However, given the Tribunal is satisfied the applicant can pursue his studies and business in China, and given the Tribunal is satisfied (ie) the applicant may be or might a risk to the Australian community, I am satisfied it is proper to exercise the discretion to cancel the visa in this case.
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

[2020] AATA 853

18 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Intention

Jurisdiction