Zhang (Migration)

[2018] AATA 4816

Zhang (Migration) [2018] AATA 4816 (5 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yihan Zhang

CASE NUMBER:  1700514

HOME AFFAIRS REFERENCE(S):           BCC2016/3775562

MEMBER:Mr S Norman

DATE:5 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 05 October 2018 at 10:40am

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – criminal convictions – fraudulent identity information – no evidence to support s375A certificate allegations – family’s disappointment at actions – considering applying for partner visa – decision under review set aside 

LEGISLATION
Migration Act 1958 (Cth), ss 375A, 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 3 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(g) of the Act, as the applicant had been charged with certain offences. 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 28 September 2018 to give evidence and present arguments. The Tribunal also received evidence from Ms Lucy NA (the applicant’s wife). 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.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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) 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.

   Does the ground for cancellation exist?

6. 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.

7. The applicant was granted a Student (Temporary) (Class TU) – Subclass 573 – Higher Education Sector visa on 25 June 2014. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 8 December 2016,[1] the applicant was advised it appeared he had breached the conditions of his visa. The applicant was advised that information from the NSW Police was that he had been convicted of offences against the law of NSW:

   ·     Produce False or Misleading Document: Penalty – fine $900. The date of conviction was 25 January 2016. The place of conviction was Downing Centre Local Court; and

   ·     Have Custody of an Offensive Implement in a Public Place: Penalty – S9 Bond 6 months. The date of conviction was 25 January 2016. The place of conviction was Downing Centre Local Court.

   [1] Department – from folio 20.

8. The applicant was then advised that as he had been convicted of two offences against the laws of NSW, and as he was the holder of a temporary visa, it appeared there were grounds to cancel his visa under s.116(1)(g) of the Act; and r.2.43(1)(oa) of the Migration Regulations. Section 116(1)(g) of the Act stated:

   Section 116 – Power to Cancel

   (1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …..

   (g)  a prescribed ground for cancelling a visa applies to the holder.

9. Regulation r.2.43(1)(oa) of the Migration Regulations stated:

   (oa)  in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

10. The Tribunal notes that subsections (2) & (3) as referred to in s.116 of the Act, are not relevant to this case. That being said, information on the Department file included that the maximum penalty for producing false and misleading documents was 12 months imprisonment: and the maximum penalty for having in custody an offensive implement is a $5,500 fine and/or two years imprisonment.[2]

    [2] Department – folio 9.

11. By response of 20 December 2016,[3] the applicant said he drove his vehicle while his NSW license had been suspended (something he conceded at hearing); he also said that ‘when the suspension period was to cease, he should have a licensed driver sit next to him; he did not realise it is a serious offence‘. He also said he did not ‘realise he was driving too fast when three police cars were chasing him’ (though at hearing, he explained that he was in a narrow street at the time, and he was not able to speed). He also said he was attempting to ‘give way to the police vehicles as quickly as possible’ and he did not realise they were ‘targeting him’ (at hearing he said he was driving for around 200 meters before the police car ‘flashed their lights’ for him to stop). He said when he realised he was being ‘chased’ he stopped his car.

    [3] Department – from folio 23.

12. The applicant said the ‘fraudulent driver licence is his fault’ (at hearing, he said after his NSW driver’s licence was suspended, he drove on his Chinese driver’s licence, which he was told could be used as an international licence). He then said he ‘made a stupid decision to hand in his overseas drivers licence because he wanted to slip through the troubles’ (at hearing, he explained this was the false document he handed to the police). He then said he was unable to understand what the police officers had been talking about when he was pulled over and detained, as he was too scared and his ‘brain did not work at all’. He now realised he had made a ‘stupid mistake’. He now understands how serious it is ‘to show a fake document to a police officer’. He will ‘never make such a stupid mistake again’.  

13. The applicant also said he was advised by a public servant in Service NSW, that it was lawful for him to drive in Sydney on his Chinese licence, even though his NSW licence had been suspended. A post hearing letter from Service NSW letter dated 15 May 2017[4] conceded the applicant had been provided incorrect advice on 4 April 2016 (after the incidents for which he was convicted). The Tribunal therefore accepts the applicant was advised incorrectly, but only after the incidents for which he was convicted.

    [4] Tribunal – folio 48.

14. The applicant also had said (in writing) that he obtained the false license from friends in China. He said he was told ‘everyone uses them abroad’ (though at hearing, he said by ‘everyone’ he meant that he was told by other international students with whom he had spoken – and the Tribunal accepts this to be correct). At hearing, the applicant also said the Chinese licence was arranged for him by his parents in China (his parents are doctors in China, and his father is the Director of a private hospital in Sichuan province).

15. Next, ‘the metal bar [a chair leg - measurements provided] was found in an unlocked glove compartment’. He said it was the leg from a chair. He then said ‘it was something boosting his courage rather than an offensive weapon’. He said the police had warned him it was a serious crime but he ‘did not know how to explain because he had no experience in such a situation before’. He then said that when asked he had said he would ‘use it as a stick if he was attacked’. He also believed the subsequent ‘penalty is too heavy as the short chair leg simply can do nothing but a show of strength’. He could not even remember when he had placed it in his car. By statutory declaration dated 4 August 2017,[5] the applicant said the chair leg he had with him was in his vehicle as he had been moving furniture a few days before the incident and he did not know it was in his glove compartment.

    [5] Tribunal – from folio 22.

16. At hearing, and when discussing the inconsistent information about the chair leg, the applicant said (words to the effect) he opened the glove compartment of his car to impress the police, as if ‘to make himself into a big man’. He said the police were not impressed and charged him for having custody of an offensive implement in a public place (and for which he was convicted). The Tribunal believes the applicant was aware of the presence of the chair leg in the glove compartment of his car (notwithstanding his claims to the contrary).

17. The applicant then said he had ‘learnt a good lesson in this accident and will never do anything cross the line no matter it is big or tiny’. He now wants to continue his studies in Australia. He believes this will benefit his future greatly. That being said, the Tribunal understands the applicant:

    ·     was driving a motor vehicle when his license was suspended;

    ·     handed the NSW police a fraudulent driver’s license which he had obtained in China;

    ·     was in possession of a metal bar in an unlocked glove compartment in his car;

    ·     was stopped by the police because they had been tipped off by a ex-girlfriend. It was claimed she was depressed because they had broken up and she had reported to the police that the applicant was a drug user and suspended driver;

    ·     that since he was convicted, the applicant had not breached any law or regulation in Australia and said he would not do so in future;

    ·     that he is an overseas student who now wants to complete his studies in Australia. He believes this will benefit his future; and

    ·     if he is forced to return home ‘ignominiously’, he will lose the respect of his parents. He also said his father is in ill health since he heard of the applicant’s criminal conduct.

18. The delegate was satisfied there was a ground for cancellation in s.116(1)(g) of the Act; and r.2.43(1)(oa) of the Migration Regulations. That was based in part on the applicant conceding he had committed a number of offences in the NSW, including handing the police are fraudulent driver’s license, and having in his possession a metal bar in the glove box compartment of his vehicle. The delegate then cancelled the applicant’s Student visa under s.116(1)(g) pf the Act; and r.2.43(1)(oa) of the Migration Regulations.

19. The applicant had said the ‘accident is nothing but a revenge launched by his ex-girlfriend’. She had been depressed when they had broken up. She now wanted to destroy him ‘in some way as she was insane at that time’. He said his girlfriend knew he could not drive but insisted he pick up a friend of hers in the city. Then she had reported him to the police as a drug user and suspended driver. The applicant conceded that he had broken the law in NSW, but he said this had arisen due to the ‘malicious information’ that had been supplied by his ex-girlfriend to the police. Irrespective of the motivation for having done so, the Tribunal is still satisfied the applicant intentionally presented a fraudulent identification document to the police in NSW.

20. The Tribunal notes the applicant was convicted of two offences (as set out above), after pleading guilty to same. For these reasons, the Tribunal is satisfied the ground for cancellation in s.116(1)(g) 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

21. 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’.

22. The applicant lodged post hearing evidence and submissions. That included numerous pages of statements. However, as that information was materially similar to that which was provided prior to or orally at the hearing, I have preferred the information that was clarified at the hearing.

23. The applicant was the holder of a Student visa and had stated he wished to continue to study in Australia. The decision to cancel his visa may prevent him from completing his studies in Australia. At hearing he explained that he was an ongoing Student at La Trobe University and that he was presently studying a Bachelor of Accounting or Business (post hearing evidence lodged). The Tribunal accepts this to be correct.

24. There is no information before the Tribunal that the applicant has not complied with other visa conditions.

25. The Tribunal accepts that if the applicant’s visa is cancelled he may not be able to complete his studies in Australia. He would also become an unlawful noncitizen and liable to detention under s.189 and removal under s.198 of the Act. However, I am not satisfied the applicant would be subject to indefinite detention. I am also satisfied he could retain a Bridging visa in order to temporarily remain in the community in order to finalise his affairs prior to departing.

26. At hearing, the applicant said he would have to start his studies again in China and his future would be delayed by around four years (as he ‘caught up’ in China). However, the Tribunal notes it must weigh such issues as this with (ie) the protection of the Australian community.

27. In his response to the NOICC letter,[6] the applicant said he ‘cannot imagine what will happen if he came back home ignominiously. His father was disappointed at him for the accident. He has been suffering [an illness] since he learnt that. [The applicant] is awfully sorry for him and his mother. He has failed their hope. He regrets the mess he has made. He has told his parents he will not let the accident happen again. He will now try to be a top student in the class’; and he wished to be provided a ‘second chance’.  

    [6] Department – folio 21.

28. At hearing, he said (words to the effect) his family would disown him if his visa was cancelled. However, the applicant drives a new Audi car in Australia, lives in an apartment in Ashfield purchased by his parents, has never worked in Australia (being fully supported by his parents). As noted herein, his parents are doctors in China, and apparently quite wealthy. The applicant is also an only child of his parents. Notwithstanding his claims that Chinese culture and or his parents’ (possibly dashed) high expectations of him would cause him to be disowned, the Tribunal does not accept they would not continue to care for him in China, as they had done in Australia.

29. By email of 21 September 2018, the applicant provided a current COE[7] transcripts of past study[8] and a marriage certificate (married 9 April 2017[9]). It was claimed that if the applicant was not able to remain in Australia, he would suffer both financial and emotional problem. However, the visa cancelled and the subject to this merits review, is a temporary visa. After considering all the evidence, the Tribunal accepts the applicant and his parents, would be very disappointed should his visa be cancelled.

    [7] Tribunal – folio

    [8] Tribunal – from folio 43.

    [9] Tribunal – folio 44.

30. The Tribunal has no information the applicant has been uncooperative with the Department or the Tribunal. The Tribunal has no information that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. There is no evidence before the Tribunal, that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

31. The Tribunal notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation.   

    The s.375A certificate

32. At hearing, the Tribunal advised the applicant that subject to his comments, the following information may be the reason or part of the reason for affirming the decision under review. The Tribunal also advised him that he may request further time to respond to such matters in writing.

33. The s.375A certificate related to a ‘dob-in’ report indicating the applicant was ‘living a luxurious life’ in Australia, that he may be able to afford this by drug trafficking (and that he used drugs), that he was arrested, and that his course progress in Australia was not satisfactory. The Tribunal had also provided the applicant until COB Friday 5 October 2018 to lodge further written submissions about this (though all this material had been discussed at hearing). Further, post hearing submissions were lodged prior to this time, and given the outcome of this decision, the Tribunal has proceeded to finalise the decision prior to COB Friday 5 October 2018.

34. By an earlier response of 20 December 2016,[10] the applicant said any allegation against him of cannabis use was ‘fabricated by his ex-girlfriend’; he then said he did ‘not use any drug at all’. By statutory declaration dated 4 August 2017,[11] the applicant said when he lodged his previous statement he was suffering from severe depression, anxiety and sleeping disorders. The applicant said he may have had trouble expressing his evidence to the (now former) migration agent. He then made reference to some inconsistencies in the evidence. However he did say that a subsequent drug test showed ‘nil drugs taken’ and he was not driving under the influence of unlawful drugs. He pled guilty for not having another person who is ‘either a full licence, police officer or tester with him whilst he was on his learners license’. He did not believe he was speeding; he did plead guilty to handing over a false document to the police; he now regrets ‘trusting his ex-girlfriend who is 13 years older than him’; the applicant said the chair leg he had with him was in his vehicle as he had been moving furniture a few days before the incident and he did not know it was in his glove compartment; he has now learnt his lesson. He also conceded he told the police the ‘chair leg was for self-defence’; he had no one to depend on in Australia and this had caused him ‘emotional instability’.  

    [10] Department – from folio 23.

    [11] Tribunal – from folio 22.

35. To the extent the Tribunal believed that any oral hearing or post hearing responses were material to these matters, I have included them elsewhere herein.

    Summary:

36. Temporary visa holders in Australia are obliged not to commit criminal offences. The Tribunal is satisfied the consequences of the applicant’s criminal acts, must be weighed against any hardship he and or his family may suffer if his visa is cancelled.

37. That being said, in post hearing submissions the applicant lodged evidence of his ongoing enrolment in a Bachelor of Business course at La Trobe University. The transcript of his academic progress indicated he had passed two subjects in ‘semester 1, 2018’ (and that he had obtained exemptions in some subjects due to his past course work). The transcript also indicated the applicant was enrolled in four subjects in ‘semester 2, 2018’.[12] Further, by La Trobe University letter dated 2 October 2018,[13] it was advised the applicant was ‘current at the date of this letter’.

    [12] Tribunal – folio 50.

    [13] Tribunal – folio 51.

1. Further post hearing submissions included a letter from Service NSW dated 15 May 2017.[14] That referred to advice given to the applicant indicating he could drive on his overseas drivers licence once the period in which his NSW driver disqualification had ceased. It was claimed the applicant had been told if he surrendered his NSW Learner Licence after the disqualification period ended he could drive on his overseas licence with no restriction. The applicant was subsequently advised that this advice, provided to him on 4 April 2016, was incorrect. The Tribunal accepts this to be true.

   [14] Tribunal – folio

2. Next, the applicant said his new girlfriend (now his wife - a ‘kind hearted Australian-born Chinese background young lady’) had given him ‘so much courage and understanding through all these incidents’. He said the new girlfriend (now wife) had stopped him binge drinking; that he had quit smoking and was now actively going to a gym to manage his body health and sleeping disorders. He had also ‘been studying and challenging himself to improve in better exam results’. He also said he and his girlfriend (now wife) are considering applying for a Partner visa.

3. The protection of the Australian community is clearly critical when considering the matters discussed herein. Though not wishing to lessen the offences for which the applicant was convicted, and though one such offence related to deceit (and the Tribunal notes that such behaviour must not be repeated), these might be considered to be in the lower range of offences. Without more, and notwithstanding the applicant’s young age and apparent remorse, the Tribunal’s conclusion may have differed. However, the applicant was married to an Australian citizen on 9 April 2017.[15] Most importantly, and while only very briefly set out herein,[16] at hearing her evidence was detailed and persuasive. Amongst other things, she said that she and the applicant had resided together for around 2 years and both she and (to some extent her high school aged brother) depended on him. She also referred to the applicant’s occasional reliance on her own parents for support (as he had no family in Australia). She also explained what she and the applicant had been planning for the immediate future; and her and her family’s qualifications and work experience. Notwithstanding the Tribunal’s concern with the applicant’s past actions and for which he was convicted, in this case and after considering all the evidence, and particularly the evidence of the applicant’s wife, the Tribunal is not satisfied it is proper or reasonable to cancel his Student visa.

   [15] Tribunal l- folio 44.

   [16] Tribunal – from folio 56 (see post hearing written submissions from the applicants wife).

4. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

5. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

   Mr S Norman
   Member