Zhang (Migration)

[2019] AATA 6264

Zhang (Migration) [2019] AATA 6264 (30 October 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wanning Zhang

CASE NUMBER:  1904458

HOME AFFAIRS REFERENCE(S):          BCC2018/1056667

MEMBER:Rachel Westaway

DATE:30 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 30 October 2019 at 11:26am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – whether the applicant is or may be, or would or might be, a risk to the Australian community or a segment of the Australian community – criminal conviction – violent and targeted behaviour – grounds for cancellation exist –decision affirmed

LEGISLATION
Migration Act 1958, ss 116, 359, 376
Migration Regulations 1994 (Cth)

CASES
Gong v MIBP [2016] FCCA 561
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.1161)(e)(i) on the basis that the presence of the visa holder in Australia is or may be, or would be a risk to the health safety or good order of the Australian community or a member of the Australian community. 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 20 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by her registered migration agent however her agent did not attend the hearing. The applicant’s boyfriend attended the hearing and provided oral evidence.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(e) - risk to Australian community or individual

7. 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].

8. 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.

9. The applicant provided a copy of the delegate’s decision to the Tribunal in her application for review. She also provided a submission on 13 May 2019. She outlined that she had separated from her boyfriend and believed he had had an affair. She explained she was heartbroken and turned to alcohol. She said on the night of the incident, 2 March 2018, she was affected by the influence of alcohol and ran into her former boyfriend and his new girlfriend at a club. The new girlfriend spoke to her in a condescending manner and she subsequently became upset. She said that she intended to throw wine at the new girlfriend but lost her balance and the cup fell out of her hand and hit the girl on her body. She stated that the girl and her friend then threw their cups at her. She stated they were separated and “they went home respectively”.

10. The applicant stated that her ex-boyfriend threatened to beat her up as revenge and she was scared and told her uncle. She then claims she reported it to the police and then she stated that they subsequently reported it to the police but she was charged and received a Notice of Intention to Consider Cancellation of her visa.

11. She was charged with two counts of Recklessly Cause Injury. The charges were pending at the time of application to the Tribunal however the tribunal was informed of a guilty plea and conviction at hearing by the applicant.

12. The applicant confirmed the chargers were correct and the Tribunal explained to the applicant that she was entitled not to say anything about her matter given the matter had not been heard and determined and it warned her about self-incrimination and checked the she understood which she confirmed she did.  The applicant then told the Tribunal the case has been finalised and she said that initially there were six charges but they were reduced to two and she pleaded guilty and was convicted. She said she had interpreting issues and used a lawyer from Legal Aid and she is still waiting on the details. The Tribunal asked her to provide documentation and she said that she has not received an order or the details of the fine. She said she has no paperwork. She said the court hearing was on 14 May 2019. She said the case is finished.

13. She said she was fined $2500 and also ordered to pay for the medical expenses which were $500 for each victim. She was told that she was permitted to stay in Australia however she understood the power stays with the Immigration Department. She stated that she was told by her lawyer that she would have a criminal record. She confirmed that she pleaded guilty.

14. The Tribunal has considered the applicant’s guilty plea and her oral evidence and views the actions of the applicant to be impulsive and dangerous. Violent behave of this nature is not tolerated by the broader community in spite of the applicant’s claims that she was under the influence of alcohol and the Tribunal considers the presence of the applicant 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.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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.

    Non-Disclosure certificate s.376

16. Contained on the Department file was a s.376 non-disclosure certificate covering information in folios 43 and 44 of the file. The Tribunal has reviewed the material which it has discretion to disclose. The certificate was issued explaining it would be of public interest because the information may reveal confidential department investigative methods used to detect breaches of the law.

17. The information in folio 43 related to case notes in date order of the progress of the case relating to the request for the brief of evidence to assist in assessing the risk of the applicant in order to determine if the ground for cancellation was made out.

18. The information in folio 44 related to case notes in date order of the progress of the case relating to the request for the applicant’s court date.

19. Whilst the case notes contained the names, emails and phone numbers of people, it provided no insight into confidential department investigative methods to detect breaches of the law. The applicant provided the Tribunal with this information prior to hearing. It is information which would be expected to be reviewed and considered by the department when determining if the ground for cancellation is made out. For these reasons, the Tribunal finds that the certificate is not valid.

20. The Tribunal has also considered whether the information is adverse to the applicant and should be put to the applicant under s359A of the Migration Act 1958. The Tribunal finds that there is no information contained in the case notes which would be the reason or part of the reason for affirming the decision under review. The applicant provided a significant amount of information to the Tribunal listed below under paragraph 21 ‘Tribunal file’. This information not only confirmed a brief of evidence and court date but listed in detail the evidence against the applicant and details about her court appearance. Furthermore she confirmed at hearing that she pleaded guilty. For these reasons, the Tribunal has not put the information to the applicant for comment.

    Consideration of discretion

21. The Tribunal has reviewed the following material provided by the applicant and contained on the Department file and the Tribunal file when considering the use of its discretion:

    Department File

    ·     Applicant’s response to the Notice of Intention to Consider Cancelling stating she had a difficult childhood and went to live with her Aunt and Uncle in Australia because her parents separated. She has completed an English Language course and VCE in Australia and was enrolled in a Diploma of Beauty Therapy when her visa was cancelled. She explained the breakdown of her relationship with her boyfriend which led to alcohol abuse. She was drunk at a pub and saw her ex-boyfriend kissing a new girl. She confronted the girl who spoke to her rudely and she lost control and threw a glass of wine into her but she claims it was not intentional to hurt her. Security broke up the situation and the applicant departed. She claims her ex-boyfriend called her the following day to meet up and threatened to beat her up. Her Uncle called the police and she claims they subsequently made a report to the police. She claims on the night of the incident she was drunk and struggles to remember the event clearly but she was by herself and three were three of them and she believes they made up some details[1].

    ·     A letter of support from the applicant’s Aunt in Australia which outlines in similar language the applicant’s explanation and response to the NOICC[2].

    ·     A letter of support from Le Zhang the applicant’s friend explaining her friend is a good person and the incident is out of character and her chance of reoffending is limited[3]

    [1] BCC2018/1056667 f:18

    [2] Ibid ff:20-21

    [3]Ibid f:23

    Tribunal File

    ·     A copy of the delegate’s decision[4]

    ·     A Submission dated 13 May 2019 from the applicant outlining her educational background which explained that she struggled with English and course providers and was unable to obtain entry into her preferred course which was nursing. She was eventually accepted into Victoria University to study a Diploma in Beauty Therapy however one month into her studies she was arrested and charged. She explains the event which led to the charges which are presented in the same way as in her response to the NOICC. She claims that the influence of alcohol was the key issue and she was young, immature and reckless. She would like a new start and confirmed her charges and supplied a copy of the charges summary sheet and confirmed her hearing scheduled for 14 May 2019. She also stated she wished to study early childhood development, she stated she will return to China as there is a demand for child care specialists and she explained that her compelling need to remain in Australia is to compliment her Australia studies and receive a professional qualification from Australia and she is 23 years old and cannot delay the start of her career any longer otherwise her options will be limited[5].

    ·      ATAR results, VTAC results and VCE results broken down by subject for the applicant showing a score of 48.95 and General Achievement Test results[6]

    ·     Charge Sheets and Summons, general information from the Magistrates Court and a preliminary brief with a statement made by the informant and by the accused, a copy of the statement made by the alleged female victim and a statement by her friend who was a witness to the alleged assault claiming the applicant threw glasses at both of them. A third statement by the applicant’s ex-boyfriend consistent with the other two statements. A statement by the Senior Constable of Police who interviewed the three people who provided statements and he confirmed their statements and confirmed viewing the lacerations of both females who claimed to be hit. A copy of the pictures was also supplied by the applicant. [7]

    ·     An application for a court order, a notice of application for an alcohol exclusion order, a Victoria Police compensation sheet outlining the medical costs for the alleged victims[8]

    ·     An undated Victoria Police sheet confirming the applicant had no criminal priors recorded

    [4] Tribunal file ff:1-6

    [5] Ibid ff:56-59

    [6] ibid ff:46-47

    [7] Ibid:ff 28-47

    [8] Ibid: f:27

22. 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’.

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

23. The applicant confirmed she is from north east of China. She came to Australia in 2014. She was eighteen years of age. She has a half-sister who is ten years of age and is in China. She has limited contact with her father and left in the care of her grandmother. Her mother pays her living costs and she works in a pharmacy and supplies nutritional products. 

24. She explained that she decided to come to Australia to receive an overseas education to get a better job and her aunty explained to her that Australia is a good place and she went to live with her Aunt and Uncle in Australia and she studied from the time she arrived. She said that if her visa is cancelled she will be 23 years of age and have no formal qualification and will struggle to establish herself in China.

25. The Tribunal accepts that the applicant came to Australia to study and to enhance her employment opportunities in the future and has taken into consideration her evidence of past academic studies and current COE to support this. The Tribunal gives this factor some weight in favour of the applicant.

26. The applicant also stated that she has a boyfriend in Australia and he is studying and she would like to remain with him and return together. If the applicant were to return to China she would only be separated from her boyfriend for a temporary period and as such the Tribunal gives this no weight.

27. The applicant explained she would like two more years in Australia to study and she would return with her boyfriend to China. She said that she can’t enrol in China as she has not completed her high school studies. The Tribunal asked the applicant if they would recognise her VCE and she said no. She was asked whether there was a requirement to have a Diploma to work in China and she said yes. The Tribunal does not accept that the applicant could not obtain some credits for her studies. Furthermore there are many people in China who have no qualifications and are able to find employment. The Tribunal accepts that this may not be the employment the applicant was hoping for and that she may be older when starting her career but her explanations and reasons put forward as compelling are not accepted by the Tribunal as compelling because the applicant could still work and would have the benefit of studying in Australia with enhanced English language skills. Furthermore whilst she might be older than she would like, she could still return to the appropriate level of study in China in order to obtain tertiary offers in her chosen field.

28. There is nothing preventing the applicant from studying in China and the Tribunal gives this factor no weight in favour of the applicant.

    the extent of compliance with visa conditions

29. The applicant stated that she has never breached any conditions on her last held visa. She confirmed that when studying her beauty course she passed all subjects she has attempted.

30. There is nothing before the Tribunal to indicate the applicant has not complied with other conditions on her visa. Notwithstanding this, the Tribunal is mindful that all visa holders are expected to adhere to the conditions on their visas and as such the Tribunal gives this factor minimal weight.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

31. The applicant stated that the hardship she would face include not been able to finish her studies in Australia and a bad prospect of finding work in China and she will face the consequences of breaking up with her current boyfriend. She confirmed he is from China. He is in Australia for the same period of time as herself. She had received a certificate of Enrolment (CoE) to study childcare just prior to her visa being cancelled and the college told her that because of the cancellation she was no longer able to attend. In spite of this she did not receive a refund from the college and lost $2500.

32. She stated that her family is having financial difficulties due to the costs of healthcare for her ailing grandmother who has problems associated with her liver and given so much money has been spent on her education it would be a waste not to finish her course.

33. The Tribunal appreciates that the applicant and her family would be disappointed if her visa is cancelled. It notes that there may be some time where the applicant is separated from her current boyfriend but this is only temporary. The Tribunal also appreciates that the investment involved in sending a student overseas is significant and that if she is unable to obtain a tertiary qualification then this would be disappointing and seen as a financial loss. It notes the loss of money associated with the CoE. However, the applicant will not return to China without an education as she has completed some studies in Australia as she has provided the results and there is nothing preventing her from continuing her studies in China.

34. The Tribunal accepts the outlined financial hardship and loss and the emotional hardship associated with the cancellation of a visa but views these as the natural consequences of a cancellation and as such gives these factors minimal weight.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

35. The applicant explained that she was under the influence of alcohol and was not in control of her emotions. She explained the she was young and immature and had a difficult childhood and the breakup of her relationship reminded her of being abandoned by her own family and she reacted inappropriately.

1. She said that she was provoked when her ex-boyfriends new girlfriend was there.

2. She said that since the incident she has started counselling and she has started sessions on alcohol and anger management and a letter was returned to the counsellor which was given to the court. She stated she does not have a copy as it was given to the court. The letter stated that she has demonstrated good behaviour and is not drinking regularly. The letter also discussed her family background and explored the reasons why she was upset. It stated that this was due to family reasons. She said that when she was seven or eight and her father found a new wife she was left to live with her paternal grandmother. She said that when they broke up it reminded her of the separation of her parents and she experienced the same feeling that she was going to be deserted once again.

3. She is still undertaking alcohol counselling with Lifecare that she decided to do herself and she does it. She attends weekly and has attended 7 sessions. Her doctor stated that she is doing well and she may wish to continue for a few more months. It is a psychological counselling session. It has helped her dealing with alcohol consumption and emotional issues. She explained that that it began when she was breaking up with her boyfriend.  She said she drinks very little and possibly a glass of wine at celebrations only.

4. The Tribunal has considered very carefully the applicant’s evidence. The applicant’s actions may well have happened whilst under the influence of alcohol and the Tribunal notes the applicant appreciates this and has sought help. However, this does not excuse the applicant’s violent and targeted behaviour. The tribunal notes he applicant’s explanation of her upbringing and the feeling of being abandoned. The Tribunal understand how the applicant may have felt like this however it does not explain or excuse the applicant for reacting in a violent manner. The applicant’s actions were not out of her control. The Tribunal gives these factors no weight in favour of the applicant.

   past and present behaviour of the visa holder towards the department

5. There is nothing to suggest the applicant has behaved inappropriately in any dealings with the Tribunal or the Department. She has been polite and courteous and has responded to all requests for information.  The Tribunal notes the applicant confirmed she pleaded guilty and has attempted to correct her behaviour. The Tribunal expects that this is how all applicants would behave and gives this factor minimal weight given the serious nature of the applicant’s charges.

   whether there would be consequential cancellations under s.140

6. There is no one else associated with her visa.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

7. If the visa holder’s visa is cancelled she would become an unlawful non-citizen and her ability to apply for other visas would be limited.

8. Public Interest Criterion 4013 may apply to the applicant and she may not meet the requirement for the grant of certain visa applications for a three year period.

9. The Tribunal sees these as natural consequences of the cancellation of a visa and as such assigns this no weight in favour of the applicant.

10. whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

11. The applicant has not raised any concerns about returning to China and the Tribunal is not aware of any international obligations. The applicant has no children. The Tribunal assigns no weight to these factors.

    if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

12. This is not applicable in the applicant’s situation and as such the Tribunal gives this no weight.

    any other relevant matters

13. The Tribunal took evidence from the applicant’s current boyfriend Zifu Zhou. The applicant has known Ms Zhang for six months. He explained that they live together sometimes. He confirmed he did not know her at the time of the incident. However he did outline to the tribunal his belief that she is a good person and she helps homeless people. He believes that the reasons for cancelling the visa are unfair. He stated that she was a victim and a perpetrator. Although it was not right she does not deserve to have her visa cancelled.

14. If she needs to return to China it would be a waste of her time in Australia and they would have to separate. He believes the separation might have a toll on the relationship.

15. He stated that she is deeply remorseful and a sense of guilt surrounding what she has done.

16. The Tribunal accepts that the applicant is supported by her boyfriend and notes the pressure on their relationship if they are separated. The Tribunal considers that many people have relationships which are long distance and stand the test of time. The applicant’s boyfriend is on a temporary visa and from China and the Tribunal views a separation due to a visa cancellation as temporary. Whilst the Tribunal acknowledges these issues it assigns no weight to them given the serious nature of the charges and conviction.

17. Considering all of the factors raised by the applicant both individually and cumulatively, the Tribunal assigns only limited weight in favour of not cancelling the visa and places more weight on the seriousness of the charges and conviction. As such, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Rachel Westaway
    Senior Member