Wei (Migration) [2020] AATA 5927 (2 November 2020)

Last Updated: 25 February 2021

Wei (Migration) [2020] AATA 5927 (2 November 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Ting Hsiu Wei

CASE NUMBER: 2001501

HOME AFFAIRS REFERENCE(S): BCC2019/6126051

MEMBER: Antoinette Younes

DATE: 2 November 2020

PLACE OF DECISION: Sydney

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

Statement made on 2 November 2020 at 10:33am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant has been convicted of offences– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 January 2020 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)(g) on the basis that the applicant has been convicted of offences. 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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Sections 359(2) and 359A invitations

4. The Tribunal wrote to the applicant on 30 September 2020 and 15 October 2020 requesting information and putting potentially adverse information to the applicant. The Tribunal advised the applicant that if a response is not received within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information and that the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
5. The applicant did not respond to the Tribunal’s invitations.
6. The Tribunal is satisfied that it gave the applicant a fair opportunity to provide information in support of his application for review. His lack of response to the Tribunal’s invitations means that he has lost any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.^[1]

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)(g). 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)(g) - prescribed ground

8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) states, amongst other things, that in the case of a holder of a temporary visa excluding the holders of subclasses 050, 051, and 444 visas, the Minister is satisfied that the visa holder has been convicted of an offence against a Commonwealth or State or Territory laws.
9. On 8 March 2018, the applicant was granted a Student (subclass 500) visa to study towards a Certificate IV in Marketing and Communication and Diploma of Marketing and Communication at Training Masters Pty Ltd.
10. As indicated in the s.359A letter, on 21 November 2019, the applicant was convicted by the Burwood Local Court of the following offences:
    • Contravene prohibited/restriction in AVO (Domestic);
    • Stalk/intimidate intend fear physical harm (Domestic) (two counts).
11. Given the convictions, there appeared to be ground for cancellation under s.116(1)(g) of the Act, r.2.43(1)(oa).

Notice of Intention to Consider Cancellation (NOITCC)

12. On 9 January 2020, the Department sent a NOITCC to which the applicant responded on 20 January 2020. In the response, the applicant acknowledged that he has been convicted of the offences and that he noted “I just want to report my situation. I recognized that I did the bad thing before, but I did not real harm to the part. I think everyone when they are angry at the moment will do anything, maybe give up or say something bad. I knew that I did it is wrong, I said something bad word to her, but I am not intended and I even did not hit or harm to her. I do not contact her anymore after I got bail from the Burwood Court. and now you will cancel my visa, I know this is very difficult to request you for stop cancel my visa. I really repent to do this thing to her even she got my everything away include my money. I have nothing but I really want to keep my live in Australia. And do my best to learn good thing for my life”.
13. On the evidence, the Tribunal finds that the ground for cancellation in s.116(1)(g) 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

14. 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
15. The applicant first entered Australia on 6 January 2017 as the holder of Working Holiday (subclass 417) visa. On 8 March 2019, he was granted a Student (subclass 500) visa to undertake studies in a Certificate IV in Marketing and Communication and Diploma of Marketing and Communication at Training Masters Pty Ltd.
16. Information before the Tribunal indicates that the applicant has completed the Certificate IV in Marketing course and at the date of the delegate’s decision record, he was studying the Diploma of Marketing and Communication.
17. The applicant has not provided submissions to the Tribunal concerning matters such as his current circumstances.
18. The Tribunal is satisfied that the applicant’s purpose to travel to Australia is consistent with the student visa objectives. The Tribunal gives this consideration weight in favour of the applicant.
19. However, as the Tribunal has no information concerning the reasons for the applicant remaining in Australia, the Tribunal is not satisfied on the material before it that the applicant has a compelling need to remain in Australia and as such the Tribunal gives this consideration neutral weight.
    • the extent of compliance with visa conditions
20. There is no information before the Tribunal suggesting non-compliance with visa conditions.
21. The Tribunal gives this consideration weight in favour of the applicant.
    • degree of hardship that may be caused (financial, psychological, emotional or other hardship)
22. The Tribunal acknowledges that the visa cancellation could result in emotional, psychological, and potentially financial hardship. Cancellation would also mean that he would not be able to pursue any further studies in Australia.
23. The applicant has been in Australia for over three years and it is plausible that he may have established connections in the community and the education institution where he has undertaken studies. The Tribunal is not aware of any current relationship(s).
24. The Tribunal gives those matters weight in the applicant’s favour.
    • 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
25. The cancellation arose as a result of the applicant being convicted of the following offences:
    • Contravene prohibited/restriction in AVO (Domestic), and
    • Stalk/intimidate intend fear physical harm (Domestic) (two counts).
26. The applicant has not provided submissions to the Tribunal but in his response to the NOITCC, he recognised the wrongdoing and noted that “...but I did not real harm to the part. I think everyone when they are angry at the moment will do anything, maybe give up or say something bad. I knew that I did it is wrong, I said something bad word to her, but I am not intended and I even did not hit or harm to her. I do not contact her anymore after I got bail from the Burwood Court. and now you will cancel my visa, I know this is very difficult to request you for stop cancel my visa. I really repent to do this thing to her even she got my everything away include my money. I have nothing...”
27. The Tribunal considers family violence to be serious, impacting significantly on others. In this case the offences were perpetrated by the applicant against a female victim. The Tribunal is not satisfied that the applicant’s response indicates that the circumstances were beyond his control.
28. The Tribunal gives this consideration weight in favour of cancellation.
    • past and present behaviour of the visa holder towards the department
29. The applicant responded to the NOITCC.
30. The Tribunal gives this consideration weight in the applicant’s favour.
    • whether there would be consequential cancellations under s.140
31. There is no evidence of any consequential cancellation under s.140.
32. The Tribunal gives this aspect neutral weight.
    • 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
33. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. To minimise or avoid those potential consequences, the applicant could voluntarily depart Australia. The applicant would also be impacted by s.48 of the Act which means that he may face difficulties in applying for any further visas in Australia and in being granted an Australian visa.
34. The Tribunal considers potential detention and removal from Australia as well as the s.48 bar to be intended legislative consequences.
35. The Tribunal gives this aspect neutral weight.
    • 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
36. There is no information before the Tribunal to suggest that Australia would be in breach of any of its international obligations, such as non-refoulement obligations in the event of cancellation.
37. The Tribunal gives this aspect neutral weight.
    • if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
38. The subclass 500 visa is a temporary visa but, in any case, there is no evidence before the Tribunal that the applicant has strong family, business or other ties in Australia.
39. The Tribunal gives this aspect neutral weight.
    • any other relevant matters
40. There are no other matters requiring consideration.

Concluding remarks

41. The Tribunal has carefully considered the material before it individually and cumulatively.
42. There are limited aspects in the applicant’s favour. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.
43. The Tribunal has decided that there was non-compliance by the applicant in the way described in the NOITCC. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Antoinette Younes
Senior Member

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^[1] Section 360(3).