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for cancellation – risk to safety of Australian community or individual – allegations of domestic violence – charges withdrawn – repeated contraventions of Apprehended Domestic Violence Order – scope of Tribunal’s review – grounds relied on by the primary decision-maker – consideration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

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.
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.
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.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the 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?
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZHUO (Migration)

Details

AGLC: ZHUO (Migration) [2019] AATA 4106
Case: [2019] AATA 4106
Decision Date: 4 September 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant, identified as ZHUO, against the cancellation of his Subclass 500 (Student) visa. The cancellation was based on the ground that his presence in Australia posed a risk to the safety of individuals or the Australian community. The applicant had faced charges related to contravening an Apprehended Domestic Violence Order (ADVO), and prior to that, had been charged with offences including intentionally choking a person and assault occasioning actual bodily harm.

The Tribunal was required to determine whether the grounds for visa cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) were made out, and if so, whether to exercise its discretion to affirm the cancellation. Specifically, the Tribunal had to consider if the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community or an individual. The Tribunal also had to assess the extent of hardship the applicant or his family might suffer if the visa were cancelled, and consider the applicant's stated intention to study in Australia.

The Tribunal reasoned that the ground for cancellation under section 116(1)(e)(i) was established, noting that the power to cancel a visa under this section does not require a direct, solid, or certain foundation, but can arise from a possibility of past events. The Tribunal interpreted "good order of the Australian community" to encompass activities that impact public order, disrupt the administration of law, or create difficulties in relation to societal values. Despite the charges being withdrawn, the Tribunal found that repeated contraventions of an ADVO, coupled with prior serious charges, indicated a risk to the safety of individuals. While acknowledging the applicant's intention to study and the limited hardship he might face, including financial loss on course fees, the Tribunal concluded that these factors did not outweigh the risk posed by his presence.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the 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? A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41]. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. 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). 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)

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa. Mr S Norman Member

Ratio Decidendi

Legal Principle Established

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 There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. Regarding the purpose of the (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. 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. Based on the evidence before it, and subject to the discussion herein, the Tribunal understands the applicant had been compliant with other visa conditions. 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. 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.