Zheng (Migration)

[2020] AATA 5716

Zheng (Migration) [2020] AATA 5716 (9 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tianhuan Zheng

CASE NUMBER:  1900712

HOME AFFAIRS REFERENCE(S):          BCC2018/5102000

MEMBER:Rachel Westaway

DATE:9 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 December 2020 at 1:23pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to the health, safety or good order of the Australian community – applicant charged with criminal offences – no conviction recorded – unable to complete studies – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994

CASES

Gong v MIBP [2016] FCCA 561
Tien 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 10 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).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the presence of the visa holder in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment 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 14 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 his registered migration agent.

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). 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 was charged with unlawful assault (9 charges, criminal damage (intent damage/destroy), resist police (2 charges) and making a threat to kill. Based on submissions to the Tribunal, namely a copy of the applicants correspondence to the Department pertaining to a bridging visa, he confirmed that six charges were against the applicant but no conviction was made and he was given a community correction order for 75 hours and a training course on men’s behaviour.

10. The applicant provided the Tribunal with a copy of the delegate’s decision. Contained within the decision were the reasons why his visa was cancelled. It outlined the reasons for the decisions and detailed that the applicant was charged with various criminal offences on 26 October 2018. Namely 9 charges of unlawful assault, criminal damage, 2 charges resisting police and making a threat to kill. The charges were related to two incidents. One on 22 October and the other 24 October 2018. The alleged offending occurred following the separation from his former partner. The alleged victim was his former partner. Furthermore an interim family violence order was imposed on the applicant to protect the alleged victim.

11. In reviewing the decision, a hearing was conducted by the Tribunal via video. In providing oral evidence to the Tribunal and written material, the applicant confirmed the altercations however stated that the judge did not convict him and was conscious of the effect of a conviction on his visa. He stated that he has completed 60 hours of his community corrections order. He stated that he was detained at the time and it caused him significant distress and he has suffered physically and mentally. He confirmed he would like to remain in Australia and complete his studies. He stated that the description of the events was presented far more aggressively than they in fact happened.

12. The applicant was a student at Melbourne University undertaking a Masters of Engineering. He held a student visa based on this and it is this visa which was cancelled and is the subject of review.

13. He provided a personal letter to express remorse. He stated that he was young, impulsive and irrational. He stated there was no intent to hurt anyone. Whilst initially resisting arrest he realised and faced the consequences and acted appropriately and cooperated with the authorities.

14. In applying for review the applicant, through his migration representative stated that he does not have a substantial criminal record and was given a community corrections order. He argued that this was treated as ‘petty misconduct’ by the judge and therefore does not warrant a visa cancellation whereby he cannot complete his studies and he asked the Tribunal to consider his age, being 23.

15. Mr Zheng confirmed the charges and the community corrections order. He stated he did not receive a conviction. He confirmed in his submission these were impulsive acts however he has learnt his lesson. Whilst he stated that the description of his actions were somewhat embellished and made to sound more serious and aggressive, this is because they were taken from the police charge-sheet, he did not contest them and has asked the Tribunal to consider that he has pleaded guilty and shown remorse. It was argued there was no conviction and this should be read against a backdrop.

16. Not withstanding the applicant’s explanation pertaining to the charges, he has not denied his behaviour and pleaded guilty to the charges. He was given a community corrections order. His aggressive behaviour was targeted towards other people and was intimidating, aggressive and serious and served as a potential and serious risk to the victim. It would have been frightening and left her feeling traumatised. This behaviour was targeted and placed the victim in a compromised and fearful situation where inappropriate force was used.  Such behaviour presents as extreme, threatening and aggressive and the Tribunal considers this is or may be, or would or might be, a risk to the health or safety of an individual or individuals, in this instance the victim.

17. 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.

    Consideration of discretion

18. 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

19. Mr Zheng explained he came to Australia in March 2018. He was born in China in Harbin. He has travelled to Korea prior to his time in Australia. The applicant stated that his parents work. His father works in the Education Bureau for students’ moral standard and character. His mother works in an auditing firm. She is also a teacher of calligraphy.

20. He came to Australia and his extended family place a lot of weight on education and he wanted to ensure he had the opportunities which education can provide. He had previously studied electrical and electronic engineering at Lo Don Han University where he completed a bachelor’s degree. He came to Australia for three years to study at the University of Melbourne. However he only completed 2 semesters of study. He provided a copy of his results which indicated averages of approximately 57%. He stated he was not familiar with the environment here. He failed one course. The second semester he made adjustment to how he studied and he improved.

21. He claims that the incident has affected his academic performance. In his submission to the Tribunal he outlined his strong academic record, his attendance at prestigious universities and the consequence a cancellation will have and he reiterated he is a genuine student.

22. The Tribunal accepts that the applicant came to Australia to study and notes he has provided sufficient evidence to support his claims that this was the intention and he had been studying. The Tribunal also accepts that the applicant would like to remain in Australia until he completes his education. The Tribunals gives some weight to these factors in favour of the applicant and not cancelling the visa.

    the extent of compliance with visa conditions

23. The applicant confirmed he has complied fully with all other conditions on his visa. There is nothing to suggest the applicant has not complied with any other conditions. The Tribunal gives this factor some weight in favour of the applicant and not cancelling the visa.

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

24. The applicant outlined the financial commitment made by himself and his family and the value and importance his parents place on a good education. He stated his family would be extremely disappointed if his visa was cancelled. He explained that Melbourne University was a world class university and to lose the opportunity to complete his studies would be terrible. He explained that by being given a second chance it would provide him with great motivation to complete his course.

25. He confirmed that his parents are aware of the situation. He said they would offer whatever assistance needed to ensure he completes his education. He acknowledged his father’s role and confirmed he has had conversations with him. He said his father has encouraged him to face the situation. He has actively faced it. He said his Mother has had bad health and suffers from cancer and he doesn’t want to worry her.

26. The Tribunal acknowledges the issues raised above by the applicant and accepts that a cancellation of the applicant’s visa would be extremely disappointing and the money spent to date on the applicant’s education would seem to have been wasted if he is unable to graduate from Melbourne University. The Tribunal accepts that the applicant’s family place significant value on a quality education given their respective careers. The Tribunal gives these factors some weight in favour of the applicant and not cancelling his visa.

    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

27. The Tribunal outlined the seriousness of the charges and the community corrections order and provided the applicant with an opportunity to explain how the situation arose. He explained that there was an incident between himself and two girls. He explained that his former girlfriend was planning to return to his apartment to collect clothing on the night of the incident. He told his current girlfriend he could not see her because he did not want them to run into each other however she arrived and she entered without permission because he didn’t lock the door , He explained he was shocked. She saw clothes under the table which belonged to the former girlfriend and she was mad. He didn’t want the two women to run into each other and tried to push her out quickly.

28. He claims to have used very mild force to drag her out. He brought her to the elevator and he wanted to talk things through and calm her down. The elevator was out of order and she insisted in staying in the elevator. He was worried about her so he used mild force to move her out. He said that she was so emotional that day and he had lost patience and the elevator was broken so he showed more impatience and she became scared. He claims he moved to the other elevator to travel to the third floor and he took her hand and used mild force. She squatted on the floor, was emotional and he said that he wanted to take her out to the balcony to cool things down for both of them. He said that the police initially thought he wanted to throw her off the balcony. He stated that he never had that thought. He said he stood on a small table and this doesn’t make sense if he was going to throw her off.

29. He was only in Australia to study and he has no reason to harm someone or throw them off the balcony and he doesn’t hate her. He liked her very much at the time and he wouldn’t have done anything to harm her. He stated that her cell phone and iPad were on his floor where she left them and she wanted them but he said he told her to go to an internet café and he will deliver them later. He wanted to sort it out at the cafe, but she was still emotional and didn’t want to talk to him. When he met her at the café he claims she was scared of him but he said there was no reason. She was texting a male friend to come and help her.

30. He didn’t want anyone else to intervene, so he took her cell phone off her. She asked for it back and he was angry so he threw the cell phone. He did not harm her and she didn’t sustain any wounds and he claims only mild force was used.

31. The Tribunal asked the applicant to explain the second incident. He stated that he called his former girlfriend and asked her not to come because of the incident. However she still wanted her items. She had heard about the incident. They two girls had previously found each other through a social media app called QQ prior to the incident because the former girlfriend thought the relationship ended and blamed the new girlfriend. He stated that he then ended up in a fight with his former girlfriend she scratched him causing wound which lasted for 6 months.

32. She also went to his apartment and broke things and he claims made his room a mess. He wanted her to stop and he used his hand to grab her wrist to try and stop her. She kept using her nails to scratch him and harm him. He used mild force to hit her on the shoulder to get her to calm down and he didn’t want to take her hand again because she hurt him. He stated this is the circumstances in which the charges were made against him. He said she then complained to the building manager and he called the police. The police checked the injuries and he said that there was nothing. He confirmed he used mild force. He conceded he should have called the police and not done anything else. This would show that he is a mature man. In his country he would never have been charged by using mild force or accused of threatening to kill by talking on the balcony. He has a clear definition of the offences in Australia. He feels bad about this now. He would handle things with more rationale and maturing in the future. He was arrested and he actively tried to respond and was consulting a lawyer. Police came into his room when he was sleeping and there was no warning of them coming in and he was shocked, and his English was limited, and he stood up and he kept asking what happened. He couldn’t understand them, and they pushed him to the floor and handcuffed him.

33. He said that the charge of resisting arrest was because he didn’t put his hands out for the handcuffs, so they accused him of resisting arrest. He said that his intention was to co-operate with them. He has sought help and he has experienced psychological problems. He explained that in the final hearing the judge didn’t convict him, but he did give him community hours and the judge placed weight on his effort, studies and financial investment.

34. The Tribunal has considered the circumstances surrounding the events and whilst it accepts the court’s decision not to give the applicant a criminal record, it has not placed a significant amount of weight in favour of the applicant around this. The events which the applicant explained may well have been distressing and stressful for the applicant, and his youth may explain to a small degree his impulsiveness, however the actions by the applicant were aggressive and frightening and well beyond the force required. Furthermore there were several situations which occurred where undue force was used by the applicant and threatened the physical and emotional wellbeing of each victim.

35. The Tribunal accepts that the applicant is remorseful and has sought help and also identified ways he could have handled the situation better. Not withstanding this, the circumstances were not beyond his control. His response was aggressive and threatening. The Tribunal gives this factor in the use of its discretion minimal weight in not cancelling the applicant’s visa.

    past and present behaviour of the visa holder towards the department

36. There is nothing before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was anything other than professional and he has responded to all request for information in a timely and polite manner. The Tribunal gives this factor some weight in favour of the applicant and not cancelling the visa.

    whether there would be consequential cancellations under s.140

37. The applicant confirmed no one else was attached to his visa. As such the Tribunal gives this factor no weight in its considerations.

    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

38. The Tribunal discussed the possible legal consequences  of a cancellation including a three-year bar from applying for another visa and public interest criteria which could further prevent him from applying for a visa to remain in or return to Australia. The Tribunal explained that if the applicant’s visa was cancelled, he would be unlawful unless a bridging visa was granted, and he may be subject to detention.

39. The applicant stated that any delays in him being able to complete his studies would be hard and that he will not be as young or motivated as he is and this would be a waste of an opportunity.

1. The Tribunal has considered the applicant’s response and the mandatory legal implications associated with a cancelled visa. The Tribunal considers the legal implications are an intended result of a cancellation. The Tribunal accepts that these would add to delays or possibly prevent the applicant from completing his course in Australia and that a temporary detention prior to departing Australia would be a confronting experience, it gives these factors minimal weight in not cancelling the visa given the seriousness of the actions of the applicant and the intended legal consequence of a cancellation.

   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

2. The applicant has not provided any reasons why he would not be able to return to his own country. He did state that his family expect him to return and he would fail them in their expectations if he did not complete his studies. He stated he would cherish the opportunity to complete his studies and would be grateful and be peaceful and is remorseful.

3. The Tribunal notes that the applicant does not have children and has not stated any reasons pertaining to Australia’s international obligations as to why he could not return to his own country. There are no international obligations the Tribunal is aware of and whilst it accepts that the applicant has again expressed remorse and his concerns regarding the disappointment his family would endure, the factors outlined by the applicant are given only minimal weight in not cancelling the visa.

   any other relevant matters

4. The applicant was asked if he could  compete his studies online. He stated that he has studied for a long time here and he wants to complete his studies in Australia and will not engage in any behaviour which would lead to this situation occurring again.  He said that he made a significant effort to get into Melbourne University and spent a lot of money and does not want this to come in the way. He stated that his grandmother and aunt have cancer and it will impact on their health and he doesn’t want this to happen. He said that his paternal grandmother was a scientist in China and he doesn’t want to let her down. He asked not to be deported as he is a son and there are high expectations placed on him.

5. He explained he was given an intervention order which lasted for 12 months however he was granted a bridging visa with study rights which he would like the Tribunal to consider are indicative of the recognition placed on him completing his course . He explained that he was to complete a mandatory course  for his behaviour and was seeking to find a Chinese course and this was a requirement of his community corrections order.

6. He explained that the men’s behaviour course took some time to organise because they did an assessment on him and because he was considered low risk it was not something that was arranged immediately.

7. The Tribunal has considered the other issues raised by the applicant in its considerations regarding the use of its discretion. The Tribunal accepts that the applicant was granted study rights on his bridging visa and the significant time and financial contribution he and his family have made in his time in Australia in order to complete his Masters. The Tribunal gives these factors some weight in favour of the applicant and not cancelling the visa. The Tribunal also notes the course the applicant has engaged in through his community corrections order regarding behaviour modification and gives this some weight in favour of the applicant. The Tribunal notes that the applicant does not want to complete his studies online and would prefer to complete them in Australia and that he has a significant amount of family pressure to perform and not have his visa cancelled. However the Tribunal considers that the behaviour by the applicant which led to the community corrections order.

8. The Tribunal has deliberated on each consideration put forward by the applicant both individually and cumulatively. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

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

   Rachel Westaway
   Senior Member