ZHUO (Migration)

[2019] AATA 4106

ZHUO (Migration) [2019] AATA 4106 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wenpan ZHUO

CASE NUMBER:  1907393

HOME AFFAIRS REFERENCE(S):           BCC2018/6216597  

MEMBER:Mr S Norman

DATE:4 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2019 at 10:25am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – allegations of domestic violence – charges withdrawn – repeated contraventions of Apprehended Domestic Violence Order – scope of Tribunal’s review – grounds relied on by the primary decision-maker – consideration of discretion – grounds giving rise to non-compliance – prevalence of domestic violence in Australia – limited hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

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 25 March 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.

2. The delegate cancelled the visa under s.116(1)(e)(ii) of the Act, arising from the finding the applicant had been charged/convicted with criminal offences (set out below). The issue in the present case includes 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 August 2019 to give evidence and present arguments. 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 affirmed.

   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 grounds set out in s.116(e)(i) & (ii) of the Act. If satisfied that the ground/s 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)(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].

7. 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.

8. On 22 June 2018, the applicant was granted a Student (subclass 500) visa (expiry date 27 November 2020). By Notice of Intention to Consider Cancellation (NIOCC) of that visa dated 8 March 2019, the applicant was advised that information before the Department included that he was charged with the following offences (Burwood Local Court on 10 January 2019) under the Crimes (Domestic and Personal Violence) act 2007 (NSW):

   ·     Contravene Prohibition or Restriction in an Apprehended Domestic Violence Order (ADVO) - (on 19 December 2018)

   ·     Contravene Prohibition or Restriction in an Apprehended Domestic Violence Order (on 14 September 2018)

   and the outcome of these charges:

   ·     Community Correction Order: two years commencing 12 December 2018 – concluding 11 December 2020 (at hearing, the Tribunal was advised this included 100 hours community service).

9. Further, the new South Wales Police had advised that prior to the above, the applicant had been previously charged with:

   ·     Intentionally Choke etc Person with Recklessness Involvement (on 11 September 2018)

   ·     Assault Occasioning Actual Bodily Harm (on 11 September 2018)

10. These charges were subsequently withdrawn, but at hearing the Tribunal was advised this had given rise to the ADVO’s which had then been imposed.  

11. The delegate recorded that no response was received to the NOICC.

12. That being said, the Tribunal notes the applicant had come to the adverse attention of the NSW Police for four separate matters arising over four months. All of this had also occurred within approximately six months of the applicant being granted the Student visa (though he had first arrived in Australia in May 2017 on a Working Holiday visa).

13. In migration agent submissions dated 14 August 2019,[1] the agent conceded they were not in possession of the agreed facts of the September 2018 incidents. However, the applicant was none-the-less charged with offences arising from incidents on that date. The agent then said the injuries to the victim were minor. However, the ADVOs were then issued. The agent went on to say they understood an argument had arisen when the victim/ex-partner had become pregnant and demanded the applicant marry her. The applicant refused to do so as his family would not approve of the marriage. The applicant had then believed the relationship should end.

    [1] Tribunal – from folio 51. 

14. In their decision, the delegate was satisfied the charges were serious, especially as the applicant’s behaviour involved the alleged use of violence against a (pregnant) person with whom he was (previously) in a close personal relationship with. The delegate also noted the applicant had been named as the respondent in the abovementioned ADVO as he had been determined to have been a risk to the safety of the individual named as a victim in that Order.

15. In their decision the delegate also noted the Australian government is committed to upholding the human rights of Australian women and reducing domestic violence and family violence through the National Plan to Reduce Violence Against Women and their Children 2010-2022. Further, that the emotional and personal violence against women cannot be measured but that the effects reach all levels of society. For instance, the violence not only affects the victims themselves, but also children may be exposed to it, and extended families, friends, work colleagues and ultimately the broader community.[2] At hearing, the applicant conceded that he understood that when imposed with the ADVO, the Magistrate had told him he must not have any contact with his ex-partner. At hearing the Tribunal noted the serious nature of domestic violence in Australia and elsewhere, and that it would have to consider this when drafting its decision.

    [2] National Plan to Reduce Violence against Women and their Children 2010-2022, accessed 7/05/2019.  

16. The delegate went on to find that based on the information before them, they were satisfied the applicant’s ‘presence in Australia may be a risk to the safety of an individual or individuals in the Australian community, specifically the individual named as the victim in the Order’[3]. The delegate was therefore satisfied the grounds existed for the cancellation of the applicant’s Student visa under s.116(1)(e)(ii) of the Act.

    [3] Tribunal – folio 3.

17. At hearing, the Tribunal noted (words to the effect) the repeated charges to which the applicant was subject, may satisfy me this represented a disregard to Australian laws. However, the applicant said this was not correct (and the reasons for the breach of the ADVO have been discussed below).

18. At hearing, the agent correctly identified that the delegate cancelled the applicant’s Student visa pursuant to s.116(e)(ii) of the Act. In migration agent submissions dated 14 August 2019,[4] it was also claimed the applicant had not been in contact with the victim/ex-partner for around eight months and there had continued to be no contact between the applicant and the victim. It was also claimed the victim was due to return to China shortly (her independently obtained Student visa was said to be due to cease on 30 November 2019). The agent believed (words to the effect) that as the victim/ex-partner was due to depart Australia shortly, there no longer existed grounds to cancel the applicant’s visa as the ex-partner would not be at future risk (including after she departed Australia).

    [4] Tribunal – from folio 51. 

19. When discussed, the agent accepted the Tribunal hearing was de novo but he was not certain whether the Tribunal should or could consider s.116(1)(e)(i) of the Act. Section 116(1)(e) relevantly stated:

    (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i)  the health, safety or good order of the Australian community or a segment of the Australian community; or
    (ii)  the health or safety of an individual or individuals; …

20. The Tribunal said it did not consider itself limited to the sub-section identified by the delegate. However, as the agent did not claim to have addressed that legal possibility, the Tribunal allowed until 3 September 2019 (two weeks after the hearing), to lodge further submissions.

21. By agent letter dated 27 August 2019 and emailed to the Tribunal on 30 August 2019,[5] put very briefly, the agent repeated that reference to s.116(1)(e)(i) was not made in the NOICC; that it should have been; and even though the hearing is de novo, the Tribunal must confine itself only to consider the ‘ground upon which the visa was actually cancelled.

    [5] Tribunal – from folio 56.

22. The reasons for this submission were said to include s.43(1) of the Administrative Appeals (Tribunal Act 1975 - “Tribunal's decision on review”) and s.349 of the Migration Act (“Tribunal powers on review of Part 5-reviewable decisions”). It was argued the effect of these sections limits the Tribunal to exercising only those powers which existed in the delegate’s decision. It was then said that the ‘delegate had no power to consider cancellation under s.116(1)(e)(i) as they did not provide particulars or any possible breach of that section’.

23. The Tribunal does not agree with the submissions. Amongst other things, except in circumstances not relevant to this case, s.24Z of the AAT Act excludes that Act from applying to proceedings in the Migration and Refugee Division of the AAT.

24. Further, the Tribunal does not accept that allegations of domestic violence, coupled with convictions on more than one count of breaching an ADVO, cannot give rise to a finding that an applicant may be a risk to the ‘the health, safety or good order of the Australian community or a segment of the Australian community.’

25. The Tribunal understands that if a decision has been made to cancel a visa under s.116, it is not open to the Tribunal on review to (ie) consider whether the visa might have been cancelled under a different power, such as s.109. On the other hand, the Tribunal is not limited to the particular issues the delegate considered.[6] It has been held that on the review of a decision to cancel a visa under s.116(1)(b) for breach of condition 8202(3)(a) (80% attendance requirement) it was open to the Tribunal to affirm the decision on the basis of breach of condition 8202(3)(b) (academic result). In that case and importantly, the Court rejected the contention that the Tribunal was limited to the issues that had been raised in the s.119 notice of proposed cancellation.[7] Be that as it may, the Tribunal also understands that whether on review of a decision made under s.116, it is limited to the ground or grounds relied on by the primary decision-maker and/or identified in the s.119 notice has not been finally determined. When considering this matter, and on a case by case basis, this may depend upon (ie), the characterisation of the power and whether the source of the power is identified in a sub-section of s.116.

    [6] SZBEL v MIMIA (2006) 228 CLR 152.

    [7] Zhang v MIAC [2007] FMCA 1855 (Cameron FM, 25 September 2007) at [16]-[18]. Though the discussion of condition 8202(3)(b) may no longer reliable in light of the Full Court’s decision in Wen Bi Dai v MIAC (2007) 165 FCR 458.

26. In this case, based on the accepted evidence that it had been alleged the applicant had committed domestic violence against his then pregnant former partner, that though no conviction arose from this, the applicant was none-the-less then subject to an ADVO, that based on his evidence, he then repeatedly breached this order (and for which he was convicted on two separate occasions), then the Tribunal is satisfied this indicates a potential willingness to disregard Australian laws (the reasons for the applicant breaching the ADVO have been discussed below).

27. Therefore, based on the findings made herein, the Tribunal is satisfied that the presence of the applicant 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.

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

29. 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’.

30. Regarding the purpose of the (26 year old) applicant’s travel to and stay in Australia, he travelled to Australia in May 2017. He was granted his Student visa in order to undertake a course of study in Australia. There is no evidence before the Tribunal to indicate the applicant’s original intention for his travel to and stay in Australia was not for the purposes of study.

31. The delegate noted that at the time of their decision the applicant was listed in the Provider Registration International Student Management System (PRISMS), as studying a Certificate IV in Business with the Salisbury College Australia. In migration agent submissions dated 14 August 2019,[8] it was also claimed the applicant was enrolled in the Certificate IV in Business – which was due to be completed in September 2019[9] (interim transcript lodged[10]). At hearing, the Tribunal accepted the interim progress report for the Certificate IV in Business, and the applicant said, and the Tribunal accepts, that he would complete this course approximately one month after the Tribunal hearing. He then wished to enrol in a Diploma of Business. After considering the evidence, the Tribunal accepts the applicant’s intention in residing in Australia, was for the purpose of study.

    [8] Tribunal – from folio 51. 

    [9] Tribunal – from folio 49.

    [10] Tribunal – folio 46.

32. Based on the evidence before it, and subject to the discussion herein, the Tribunal understands the applicant had been compliant with other visa conditions.

33. Regarding the degree of hardship that may be caused to the applicant or his family if his Student visa is cancelled, based on information before it, the Tribunal accepts that if the applicant’s visa is cancelled, he or his family may suffer some limited hardship. For instance, he would have no work rights and therefore no legal ability to work in Australia. He also may not be able to engage in further study in Australia.

34. In migration agent submissions dated 14 August 2019,[11] it was claimed the applicant had expended fees amounting to approximately $9000 “which will be thrown away in the event of a visa cancellation”. However, when discussed at hearing, the applicant agreed this money had been spent on a General English course ($5,760[12]); and a Certificate IV in Business ($3,000[13]). He said he had successfully completed the English language course and was due to complete the Certificate IV course in September 2019. As noted at hearing, this indicated the applicant would return to China, with educational qualifications from Australia (including improved English language skills). The Tribunal does not accept this means the money would be ‘thrown away’.

    [11] Tribunal – from folio 51. 

    [12] Tribunal – folio 49.

    [13] Tribunal – folio 48.

35. At hearing, the applicant also explained that one sister (with her family) resided in Australia as a permanent resident. His father, mother and another sister continue to reside in Fujian City in China (his hometown); that his father works as a Chief Officer on a ship and his mother works in an agency which provides work for seamen, and she also sells nutritional supplements. He also said that he had either studied or qualified in an International Trade course in China (equivalent to a TAFE course); and that prior to travelling to Australia, he had worked in entry level positions (at a gym, in hospitality, and in finance). Also at hearing, the Tribunal said it understood the Chinese economy (including that in Fujian) was reasonably strong, and that with his own educational and work background and his parents wealth (who the Tribunal said it presumed funded much of his study in Australia – and this was not disputed at hearing), the Tribunal may find he could continue studying in China.[14] Accordingly, the Tribunal said it may accept that (ie) his inability to continue his studies in Australia (if his visa is cancelled), would not give rise to more than limited harm for him.

    [14] Regarding education in China, see various references in DFAT COUNTRY INFORMATION REPORT - PEOPLE’S REPUBLIC OF CHINA, 21 December 2017.

36. The applicant then said he had commenced a relationship with a new girlfriend in February 2019; that she was a Chinese citizen Student visa holder (which visa she had obtained independent of the applicant); and that she hoped to return to China after she finished her studies in Australia in late 2020. The applicant also feared that as his Student visa was cancelled, he may have to return to China one year earlier than his new girlfriend and their separation may ‘break up the relationship’.

37. Be that as it may, after considering the evidence, the Tribunal is not satisfied the applicant being prevented from continuing studies in Australia, would cause more than limited harm to him. Further, the Tribunal accepts the applicant’s new relationship may falter or even cease should he be obligated to return to China, one year prior to the new girlfriend. However, and based on all the findings herein, and even though one of his sisters is a permanent resident in Australia, I am not satisfied there is a compelling need for the applicant to travel to or remain in Australia. Be that as it may, I have given some limited weight to the claim the applicant’s new relationship may falter if he returns to China earlier than the new girlfriend.

1. Regarding the circumstances in which the ground for cancellation arose, in migration agent submissions dated 14 August 2019,[15] it was claimed the applicant commenced a relationship with the victim around October 2013 (when they were both studying in China); the relationship continued in China until January 2016 – then ceased; the relationship (or contact) was then resumed in January 2017; in May 2017, the applicant travelled to Australia on a Working Holiday visa; subsequently, the victim travelled to Australia; the relationship continued in Australia; furthermore:

   [15] Tribunal – from folio 51. 

   ·     in September 2018 the first incident occurred. The agent conceded they were not in possession of the agreed facts of the incident; however, the applicant was charged with inter alia ‘actual bodily harm’. The agent believed the injuries to the victim were minor. However, an ADVO was then issued. The agent went on to explain they understood an argument arose when the Chinese citizen victim became pregnant and demanded the applicant marry her (the Tribunal accepts this is plausible, including because in China unmarried mothers are in breach of the family planning laws). The applicant had refused to do so as his family would not approve of the marriage. The applicant then believed the relationship should end.

   ·     After the AVDO had been issued, the victim “instigated frequent contact” with the applicant. She also regularly threatened suicide. The applicant was then said to have “foolishly maintained contact despite” conceding he had been warned (by the Magistrate) “that any contact was in breach of the” ADVO. The agent said the applicant believed that due to the victim’s mental condition “he could not immediately abandon her”.

   ·     In December 2018, the victim advised the applicant she had been assaulted while walking home the previous evening after attending her classes. The applicant offered to drive her home after her next class. The agent then said the NSW Police Fact Sheet “does not reflect what occurred”. An amended fact sheet[16] was lodged with the Tribunal. It was said the facts in the original fact sheet were “vague in the extreme providing virtually no particulars of the alleged breach”. Amongst other things, the new NSW Police Fact Sheet advised that:

   ·the victim was (at least temporarily) living in a Domestic Violence refuge

   ·the applicant must not act in specified ways

   ·the applicant breached the obligation not to contact the victim; but that communication had been “happily engaged in” by both the applicant and the victim

   ·when being driving in the applicant’s car the victim lost her phone; she could not locate it in the applicant’s car; she later contacted the police to report her missing phone; the victim mentioned her contact with the applicant, and also provided the police with her call records; the police questioned the victim about her mental health and established she was “feeling stressed and anxious”; the victim claimed she had terminated her pregnancy and did not care if she died; on 25 December 2018 the police attended the applicant’s home and he was arrested and cautioned;

   and:

   ·     since that evening it was claimed the applicant had not been in contact with the victim and had “deleted her Wechat profile”. It was also claimed it had then been eight months since the offences and there had continued to be no contact between the applicant and the victim. It was also claimed the victim was due to return to China shortly (it was said her Student visa was due to cease 30 November 2019).

   [16] Tribunal – folio 45.

2. At hearing, the applicant eventually said he had been in contact with the victim in February 2019. That was when she had attended the applicant’s residence and wished to speak with him. He said he could not speak with her and she had shortly thereafter departed. After discussing same at hearing, the Tribunal accepts that any breach by the applicant in February 2019, was possibly unintentional and unavoidable.  

3. When then asked whether the victim/ex-partner told him why she had reported him to the police (regarding her lost phone – and given she presumably understood this would cause problems for him), he said possibly revenge.

4. That being said, and though the Tribunal accepts the applicant may have felt some ongoing guilt towards his ex-partner (given that after causing her pregnancy, he decided to leave her and he was then concerned about her mental health), the applicant also knew he was ordered not to engage with her after the ADVO was imposed, and which order had been imposed due to the incidents in September 2018. As stated at hearing, the Tribunal may find (and now does find) that irrespective of his intentions, this indicates a disregard for Australian laws. 

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

6. 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.

7. Next, at hearing the applicant said (inter alia) that he would obey Australian laws, that he regularly donated monies to charity, that he wished to complete his Community Service, and that he had already paid his penalty and did not believe it fair that he was punished again. However, and notwithstanding his claimed intentions, the Tribunal is concerned about the prevalence of domestic violence in Australia, and given the Tribunal is not satisfied the applicant would suffer more than limited hardship should his Student visa be cancelled, and given I am satisfied he could effectively pursue his studies/career in China, I believe it appropriate to exercise the discretion to cancel the visa in this case.

8. 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.

   Mr S Norman
   Member