ZOU (Migration)

[2018] AATA 5362

ZOU (Migration) [2018] AATA 5362 (28 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TIAN YU ZOU

CASE NUMBER:  1716635

HOME AFFAIRS REFERENCE(S):           BCC2017/2013091

MEMBER:Antoinette Younes

DATE:28 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 163 (State/Territory Sponsored Business Owner (Provisional)) visa.

Statement made on 28 November 2018 at 5:19pm

CATCHWORDS
MIGRATION – cancellation – Business Skills (Provisional) (Class UR) visa – Subclass 163 (State/Territory Sponsored Business Owner (Provisional)) – ground for cancellation – risk to safety of Australian community or individual – existence of pending provisional apprehended violence order (PAVO) – consideration of discretion – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 163 (State/Territory Sponsored Business Owner (Provisional)) 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 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.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 16 October 2018 to give evidence and present arguments. He provided further material post-hearing.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. 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

8. 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?

9. 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].

10. In the course of the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record which the applicant provided to the Tribunal in support of the application for review. Specifically, the Tribunal indicated that information received from the New South Wales Police Force shows that on 21 May 2017, the applicant was charged with the following offences:

    ·[Details of charges deleted]

11. The decision record further indicates that the New South Wales Police Facts Sheet shows that on 21 May 2017, the police enforced a provisional apprehended violence order (PAVO) naming the applicant as the person of interest and [Ms A] as the protected person. The PAVO forbids the applicant from approaching or contacting the protected person.

12. The applicant agreed with the information.  He said [Ms A].

13. In submissions to the Department, the representative indicated that:

    ·The term risk is not defined in the Act and that the charge is not sufficient.

    ·The applicant and [Ms A] lived together in the apartment owned by the applicant. [Details of allegations deleted.] The applicant has a different version in relation to the events of 20 May 2017. Counsel has given advice that the case against the applicant is weak.

    ·[Ms A] moved out of the apartment on 27 May 2017 and the applicant does not know of her whereabouts. He is not likely to re-establish any contact with her. He has also consented to PAVO of two years prohibiting him from contacting [Ms A] by any means. The applicant is fully aware of the serious consequences of breaching the PAVO.

    ·The applicant was released on bail on 14 June 2017 and he has complied with bail conditions and there is no evidence that the applicant has made any attempts to contact [Ms A].

    ·The applicant arrived in Australia in July 2007 at the age of 15 on a student visa and he has been residing in Sydney primarily for the last 10 years. He completed his studies and he has a full-time job.  The applicant does not have any prior criminal records or breach of visa condition.

14. In support, the applicant provided an employment letter of support, qualification of Master of Film and Digital Image, advice from counsel emphasising the applicant’s denial of the allegations, bail acknowledgement, letter from counsellor referring to, amongst other things the applicant’s alcohol consumption.

15. In submissions to the Tribunal dated 31 July 2017, the representative discussed the concept of risk and its evaluation. The representative essentially argued that the delegate had erred by failing to take into account relevant considerations, such as bail conditions and prior good character.

16. The Tribunal discussed with the applicant the information provided to the Tribunal on 8 October 2018, by the representative, namely a Court Order Notice dated 18 September 2018 showing that “No Further Proceedings Directed - Crown Application”.  The applicant confirmed that there are no further outstanding matters in relation to the charges. 

17. In the course of the hearing, the applicant provided to the Tribunal a copy of the PAVO. The Tribunal asked the applicant if the order is still in force and the applicant confirmed that it is still in force. He provided the Tribunal with a copy of an Application to Vary or Revoke the PAVO, listed on 2 November 2018 at the Central Local Court.  He stated that [Ms A] used to be a flatmate but he is no longer aware of her whereabouts.

18. The Tribunal advised the applicant that as the PAVO remains in force, there is argument that  the ground for cancellation exists.  The applicant stated that he has legal representative in relation to the PAVO.  The Tribunal requested the applicant to provide details about the outcome of the application to revoke the PAVO by 9 November 2018.

19. On 9 November 2018, the applicant wrote to the Tribunal advising that the police have opposed his application to revoke the PAVO without the consent of the other party. He provided documents indicating that the matter is listed for mention in the Sydney Downing Centre on 21 November 2018 and that it is highly probable that the other party would be opposing the application to revoke the PAVO. He requested the Tribunal not to finalise the matter to enable him to “make fresh legal challenges to have the AVO revoked”.

20. On 13 November 2018, the Tribunal wrote to the applicant advising that as discussed in the course of the hearing, although the criminal charges are not proceeding, the existence of the pending PAVO could mean that the Tribunal might be satisfied that his presence in Australia is or may be, or would or might be, a risk to the health or safety of [Ms A] and that consequently the Tribunal would find that the ground for cancellation exists. The Tribunal noted that the PAVO is listed for mention in the Sydney Downing Centre on 21 November 2018.  The Tribunal advised that it would give him another opportunity and would not finalise the decision prior to 24 November 2018 to enable him to advise the Tribunal of the outcome of the mention on 21 November 2018. The Tribunal did not receive any information from the applicant about the matter and the Tribunal has no explanation.

21. The Tribunal is satisfied that it has given the applicant a fair and real opportunity to put his case in full before the Tribunal. The Tribunal considers it inappropriate in circumstances where the applicant has not provided any explanation or material subsequent to the mention on 21 November 2018, to wait any further to finalise the review. The applicant has been put on notice both in writing and in the course of the hearing of the significance of the pending PAVO.

22. The Tribunal accepts that a Court Order Notice dated 18 September 2018 confirms that there are “No Further Proceedings Directed - Crown Application” in relation to the [criminal charges].  The Tribunal does not know the reasons but accepts that the relevant authorities including the DPP and the Police made that decision based on assessments within established guidelines.

23. In submissions to the Tribunal dated 31 July 2017, the representative provided a critical analysis of the delegate’s assessment of risk but accepted that the terms ‘may be… might be’ introduce a “deliberately lower standard of satisfaction than ‘is’ or ‘would be” which means that the cancellation ground exists even “if there is a possibility that a person may be a risk as well as if there is demonstrated to be an actual risk of harm”. The remainder of the submissions essentially focused on the fact that the applicant had been granted bail. Those submissions are no longer relevant given the fact that no further proceedings are ongoing in relation to the criminal charges.

24. On the evidence before it, the Tribunal is satisfied there is a current PAVO requiring the applicant to follow the orders articulated in the PAVO. The PAVO indicates that it is a criminal offence not to follow the orders and that the applicant could be arrested and charged and that if convicted, the applicant could go to prison for up to 2 years and be fined up to $5500. The evidence before the Tribunal indicates that this matter has not been resolved and the Tribunal has no idea when or if it would be.

25. The Tribunal has given regard to the submissions dated 7 July 2017 from Ms Susan Kluss, Barrister at Law that the applicant without admission consented to the provisional orders that mirrored the bail conditions. Ms Kluss submitted that the complainant does not reside with the applicant and he has had no contact with her since the date of his arrest. Ms Kluss contended that there is no reason for the applicant and the complainant to be in contact with one another and consequently the applicant does not present any threat to her or to any person in the community. The Tribunal has given weight to those submissions. 

26. The Tribunal has requested an update about the PAVO and has given the applicant an opportunity post hearing to provide information relevant to this issue. The material before the Tribunal indicates that the application to revoke the PAVO is opposed by the police and the protected person. The Tribunal is satisfied that the applicant’s visa may be cancelled under s.116(1)(e) if his presence 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.

27. It is established that there does not have to be, any direct, solid or certain foundation before the power can arise. Gong v MIBP [2016] FCCA 561, at [41] is authority for the proposition that the power can arise on the possibility that some event occurred in the past. Consistent with that proposition and established principles, the Tribunal is satisfied that the existence of the PAVO means that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of [Ms A]. Accordingly, the Tribunal finds that the ground for cancellation exists under s.116(1)(e).

28. 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’.

    ·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

30. The applicant travelled to Australia on 27 July 2007 as the holder of a student subclass 571 visa which was granted on 29 June 2007. Since that time he has mostly resided in Australia and he has been granted other student visas to enable him to further his education in Australia.

31. On 2 June 2013, the applicant entered Australia on his current visa as a dependent on his mother’s subclass 163 visa which was granted on 31 May 2013. After graduating from the University of Sydney in July 2013 in a Master’s degree in Film and Digital image, he has been working full-time. Since 2016, he has been employed as an education agent.

32. Although the applicant’s initial purpose to travel to Australia was to study, that purpose changed when he was granted the subclass 163 and he has remained in Australia consistent with the  purpose of this visa.

33. The Tribunal gives some weight in favour of the applicant in relation to this consideration.

    ·the extent of compliance with visa conditions

34. There is no evidence before the Tribunal that the applicant has not complied with the conditions of visas he was granted since 2007 and the Tribunal gives this aspect favourable weight.

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

35. The Tribunal acknowledges that the cancellation of the visa would mean that the applicant and his family would experience some degree of hardship.  The applicant has been in Australia for over 11 years and he considers Australia home.  He has provided a letter from his employer dated 25 May 2017 referring to his good qualities.  The applicant claimed that he has strong ties in Australia and it is plausible that after 11 years, he has developed friendships. The applicant is a dependent applicant on a subclass 163 held by his mother. It is reasonable for the Tribunal to assume that his mother would be negatively impacted by the cancellation of his visa.

36. In response to the notice of intention to consider cancellation, the applicant indicated that he has problems with alcohol consumption and that he is addressing this issue. He provided a letter of support from a Counsellor dated 7 July 2017 referring to the applicant’s attendance in relation to his alcohol issue. Although the applicant has not provided any updates, the Tribunal has noted this issue and has given it some weight in the applicant’s favour. It is plausible that the cancellation of the visa could have a negative impact on the applicant’s consumption of alcohol.

37. If the applicant chooses not to return to China voluntarily, he could be detained and deported. The applicant would also have difficulties obtaining any further Australian visas. The Tribunal is of the view that these are consequences of the legislation and in his circumstances, they do not mean that the visa should not be cancelled.

38. On balance and although the Tribunal acknowledges that there would be some degree of hardship in the case of cancellation of the applicant’s visa, the Tribunal is not satisfied that the degree of hardship is such that to mean that the visa should not be cancelled.

    ·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

39. The applicant’s visa was cancelled following the charges as well as the PAVO. The evidence before the Tribunal indicates that the charges are not proceeding.  However, the PAVO remains in force. The Tribunal considers the existence of the PAVO to be serious and weighs heavily against the applicant.

    ·past and present behaviour of the visa holder towards the department

40. The applicant responded to the notice of intention to consider cancellation and the Tribunal has given this favourable weight.

    ·whether there would be consequential cancellations under s.140

41. There is no consequential cancellation in this instance.

    ·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

42. As mentioned earlier, if the applicant chooses not leave Australia voluntarily, he could be detained and deported.  He would also have difficulties in obtaining further Australian visas.

43. The Tribunal considers those to be legitimate and intended consequences of the legislation and in the applicant’s case, they do not mean that the visa should not be cancelled.

    ·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

44. There is no evidence before the Tribunal and the applicant has not advanced any arguments that there are any international obligations which would be breached as a result of the cancellation.

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

45. The subclass 163 is not a permanent visa.

    ·any other relevant matters

46. The Tribunal has considered all matters relevant to the review.

47. The Tribunal has carefully considered the applicant’s circumstances individually and cumulatively. There are aspects that favour the applicant but there are other aspects that weigh against the applicant. The Tribunal is satisfied that on balance the correct and preferable decision is that the applicant’s visa should be cancelled.

48. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

49. The Tribunal affirms the decision to cancel the applicant’s Subclass 163 (State/Territory Sponsored Business Owner (Provisional)) visa.

    Antoinette Younes

    
    Senior Member