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Deng (Migration) [2023] AATA 698 (28 February 2023)

Last Updated: 6 April 2023

Deng (Migration) [2023] AATA 698 (28 February 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Wentao Deng

REPRESENTATIVE: Mr Nigel James Dobbie

CASE NUMBER: 2205172

HOME AFFAIRS REFERENCE(S): BCC2022/145831

MEMBER: Deputy President Justin Owen

DATE: 28 February 2023

PLACE OF DECISION: Sydney

DECISION: The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 28 February 2023 at 2:05pm


CATCHWORDS
MIGRATION – Cancellation – Subclass 010 (Bridging A ) visa – criminal conviction – ground for cancellation exists – applicant has a genuine determination and commitment to successfully complete his tertiary studies – applicant has a compelling need or purpose to remain in Australia – potential operation of Public Interest Criteria (PIC) 4013– knock-on effect of ensuring the applicant’s outstanding Student visa is in all likelihood refused – genuine hardship to the applicant – applicant’s risk of criminally reoffending is low – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.43, Schedule 2, cl 500.217

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision dated 31 March 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
  2. The delegate cancelled the visa under s 116(1)(g) of the Act on the basis that the applicant was convicted of an offence in the State of New South Wales. 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 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friends, Mr Qingwei Gao, Mr Daopeng Liu and Mr Zekai Niu. 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 Mr Dobbie who attended the hearing. The Tribunal wishes to record its appreciation to Mr Dobbie for his assistance to the Tribunal in undertaking its duties. Mr Dobbie submitted fulsome “T-Documents” as part of the submission process, a situation common to the Tribunal’s General Division but rare in the work of the Migration and Refugee Division. These electronic submissions, combined with his succinct and considered oral submissions, have greatly assisted the Tribunal in dealing with voluminous amounts of written evidence and coming to a decision more expeditiously.
  5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

  1. 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.

Background to this review

  1. The applicant is a 23-year-old PR China national.
  2. As outlined in the delegate’s decision record the applicant provided to the Tribunal, the applicant arrived in Australia for the purpose of study. The applicant was granted a Student (subclass 500) visa on 25 February 2019 and travelled to Australia a month later.
  3. The applicant’s Genuine Temporary Entrant (GTE) Statement stated he ultimately intended to study a Bachelor of Commerce at the University of Sydney after completing the relevant language course followed by a year-long foundation course.
  4. The applicant successfully completed his Academic English Preparation course at the end of December 2019 as scheduled. On 18 July 2020, he attended a birthday party of a friend where alcohol-based drinking games were played. A dispute with a mutual friend of the host concerning the vodka-based game led to shoving and punches exchanged between the parties. The applicant subsequently wounded the mutual friend of the host with a broken Corona beer bottle to both his cheek and his fingers and hands. The applicant was arrested and charged by NSW Police a few days later after they called upon his residence. He was remanded in custody for some six months at Silverwater Gaol. During this time the applicant was obviously unable to attend his University of Sydney Foundation course which was cancelled. In January 2021, he was released on bail and undertook various alcohol abuse courses. In March 2021, he applied for a new Student visa so he could resume his studies. On 15 July 2021, he was convicted at the Downing Centre Local Court of the offence of reckless wounding and sentenced as outlined below. On 26 October 2021, the NSW District Court upheld the applicant’s appeal over his sentence, noting the evidence of the full-time custody spent on remand by the applicant for the offence which had not been made known to the Local Court. The appeal was upheld with the consent of the Director of Public Prosecutions. As a result, the applicant’s original Intensive Correction Order was replaced by a less onerous Community Correction Order for a period of 18 months from that date.
  5. The applicant re-enrolled and finally completed his year-long University of Sydney Foundation Program on 1 July 2022. The applicant subsequently cancelled his enrolment in the University of Sydney Bachelor of Commerce degree to change to the University of Sydney Bachelor of Project Management course which he commenced in August 2022 as a full-time student. The applicant successfully completed his first semester in the course and is currently studying as a full-time student in the degree at the University of Sydney. He also works on a part-time basis to support himself financially. The applicant’s parents and family are all in PR China.

Section 375A Certificate

  1. At the hearing of 14 February 2023, the Tribunal informed the applicant that a certificate has been issued by the Delegate under s 375A of the Act restricting the Tribunal from disclosing certain information in the Departmental file on the basis that disclosure would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods. The Tribunal provided a copy of the certificate to the applicant and invited the applicant to comment on or make submissions on the validity of the certificate and why the information should be cancelled.
  2. The Tribunal also provided the gist of the general information contained in the portfolios to the applicant. The Tribunal noted it was not putting the information to the applicant under s 359A, noting any information potentially adverse was already clearly articulated in the delegate’s decision record as well as in the applicant’s extensive written submissions.
  3. The applicant consulted with his representative Mr Dobbie. The applicant accepted the validity of the certificate and agreed that any information and evidence covered by the certificate was already well-ventilated in the review.

Does the ground for cancellation exist?

  1. 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 reg 2.43 of the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.
  2. According to the delegate’s decision record the applicant supplied the Tribunal, the cancellation arose from the charging and conviction of the applicant with a criminal offence in the State of New South Wales. On 15 July 2021, the applicant was convicted at the Downing Centre Local Court of the offence of “Reckless Wounding” and sentenced to:
  3. In his written submissions to the Tribunal, the applicant accepted that the ground for cancellation exists under s 116(1)(g). The applicant conceded he had been convicted of the offence: reckless wounding – T1 and the power to cancel his visa was enlivened.
  4. For these reasons, the Tribunal is satisfied 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

  1. 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

  1. The applicant’s purpose for travelling to and remaining in Australia is to study. The applicant arrived in Australia on 23 March 2019 as the holder of a Student (subclass 500) visa. The applicant departed and returned to Australia multiple times throughout 2019, before residing continuously in Australia since his last entry on 9 March 2020. The applicant’s Student visa expired on 15 March 2021.
  2. On 11 March 2021, prior to the expiry of his then existing Student (subclass 500) visa, the applicant applied for a new Student (subclass 500 visa) and was granted a Bridging A (subclass 010) visa, the cancellation of which is the subject of this review, to allow him to lawfully remain in Australia while his Student visa application was assessed. At the time of decision, the delegate has not made a decision in relation to this application.
  3. In the Genuine Temporary Entrant Statement that accompanied the applicant’s first Student visa application, lodged offshore on 22 February 2019, the applicant stated he intended to undertake a Bachelor of Commerce degree at the University of Sydney, that his study would start with the language program, expected to end in December 2019, and then he would enter the one-year foundation study from February 2020, before he could enrol in the Bachelor degree. The applicant stated that once he has completed his studies in Australia, he would return to China to find employment as a Financial Advisor, or Financial Analyst.
  4. The applicant successfully completed his Academic English Preparation course at the end of December 2019 as originally scheduled.
  5. The applicant’s original study plan was to then complete his courses as follows:
  6. The applicant’s study progress was obviously impacted by his arrest in July 2020 and subsequent remanding in custody for six months until January 2021. The Tribunal notes the evidence from the Provider Registration and International Management System (PRISMS) record that the applicant did in fact seek and obtain a deferment for his year-long University of Sydney Foundation Program whilst in custody.
  7. The applicant recommenced his year-long University of Sydney Foundation Program at the end of January 2021. The Tribunal notes from the delegate’s decision that the applicant conceded he had failed one of the subjects on the programme. The delegate expressed concerns as to the applicant’s progress and his ability to complete the studies. The applicant at the Tribunal’s hearing stated that his challenges were partially due to the fact that he had issues moving from in-person learning to all online learning during the COVID-19 pandemic, a claim the Tribunal has some sympathy for. The Tribunal furthermore notes that the PRISMS records do in fact demonstrate that applicant re-enrolled and finally completed his University of Sydney Foundation Program on 1 July 2022. The applicant pointed out at the Tribunal that the University of Sydney determined to extend his Foundation Course to 18 months, a situation reflected in the PRISMS records. The applicant’s witnesses Mr Qingwei Gao and Mr Daopeng Liu, two gentlemen that have achieved considerable academic success and career progression themselves, provided valuable testimony as to the assistance they had provided the applicant in getting his life back in order after his release from custody, assistance that had included academic coaching and support. Both provided eloquent oral evidence as to the applicant’s academic focus and improvement since his offending as well as two detailed and thoughtful written submissions. The applicant similarly provided testimony that he had found his studies challenging initially, a situation exacerbated by the circumstances his reprehensible behaviour generated for himself.
  8. The applicant had re-enrolled in his University of Sydney Bachelor of Commerce to commence in August 2022. The applicant stated at the hearing that his University of Sydney Foundation Course however had led him to re-evaluate his study and career priorities. As a result, he did not commence the Commerce degree and instead enrolled in the University of Sydney Bachelor of Project Management which commenced on 1 August 2022. The applicant has provided his academic transcripts from the University of Sydney that demonstrate he successfully completed all his subjects as a full-time student in second semester 2022 and is currently studying full-time with a proposed completion date for the course of 21 July 2025.
  9. In the Forensic Psychological Report by Clinical Psychologist Ms Stephanie Bennett and dated 6 February 2023 that was provided to the Tribunal, Ms Bennett states that in July 2022, the applicant commenced full-time study in a Bachelor of Project Management degree at the University of Sydney. She states the applicant had passed all of his subjects thus far. She states that the applicant wishes to remain in Australia to pursue his full-time university studies, and planned to continue working in a restaurant and as an Uber driver whilst he studies.
  10. The NOICC response references Tian (Migration) [2021] AATA 1204 as relevant caselaw. In this matter, the applicant’s Bridging A (subclass 010) visa was cancelled under s 116(1)(g), pending the outcome of his Student visa application, as the applicant had been convicted of Dangerous Driving Occasioning Death. The applicant claimed he had a compelling need to remain in Australia as he had a strong desire to continue his studies in Australia, he felt he had a moral obligation to remain in Australia to complete his ICO and he also expressed remorse for the circumstances in which the grounds for cancellation arose. In this matter, the Tribunal concluded that the visa should not be cancelled. The Tribunal notes the case but would simply comment that it is not bound by other Tribunal decisions, and decides each matter on the merits of the individual case.
  11. The Tribunal has reviewed all the evidence before it concerning the applicant’s study plans and progress and is satisfied he has a genuine determination and commitment to successfully complete his tertiary studies at the University of Sydney. He is fortunate to have a good network of well-meaning and well-educated friends around him who have supported him in this endeavour. He has invested a significant amount of time, and his parents a considerable amount of financial and emotional support, in pursuing these objectives.
  12. On the basis of the evidence before it, the Tribunal is satisfied that the applicant has a compelling need or purpose to remain in Australia. The Tribunal weighs this factor heavily against cancelling the visa.

The extent of compliance with visa conditions

  1. One of the conditions attached to the applicant’s Student (subclass 500) visa, which was granted on 25 February 2019 and ceased on 15 March 2021 was condition 8533 Notify Address. The delegate noted that while the applicant did seek and obtain an exemption from the education provider to defer his studies from July 2020 to January 2021, he did not provide evidence of the reasons he gave to the education provider for seeking that exemption. The delegate noted that the applicant’s PRISMS records did not indicate that the applicant advised the education provider that he was remanded in custody, or that he was residing in prison during that six-month period. As such, the delegate concluded that the applicant did not comply with condition 8533 of his Student (subclass 500) visa. The Tribunal is unaware as to whether the applicant informed his education provider of his change of address – to Silverwater Gaol – or not. The Tribunal would note however that the applicant at the time was attempting to obtain bail in order to return to his usual residence, whilst access to the facilities to inform the provider would have been somewhat limited. The Tribunal places little adverse weight on any failure to inform his education provider of the temporary change of address given the circumstances.
  2. The Tribunal notes that the applicant is currently the holder of a Bridging E (subclass 050) visa. The Tribunal noted from Ms Bennett’s psychological report dated 6 February 2023 that in the last 12 months, the applicant has been casually employed in two roles on an intermittent basis and that he has worked as a hospitality worker for a restaurant for approximately 3 months in total.
  3. At the hearing, the Tribunal discussed with the applicant his employment. The applicant stated that he had worked on a casual basis but was always working under 40 hours a fortnight with his study commitments. The Tribunal accepts the applicant’s testimony. There is no evidence before the Tribunal to suggest that he has been in breach of the relevant visa condition 8104 – Work Limitation. The Tribunal weighs this factor slightly against cancelling the visa.

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

  1. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family members should his Bridging visa A be cancelled.
  2. The applicant has claimed that he will suffer from significant hardship and will suffer significant future hardship if the visa cancellation is not set aside.
  3. The applicant has submitted that the inability to complete his university studies in Australia at the University of Sydney will generate significant hardship to him, especially given he has completed his language course, a year-long University of Sydney Foundation course, and is now successfully undertaking his Bachelor studies at the University. At the hearing, the applicant stated he would like to possibly undertake postgraduate studies at the University of Sydney at the completion of his degree.
  4. The Tribunal has already summarised the applicant’s educational journey whilst in Australia between paragraphs 20 and 27 in this decision record. The applicant and his witnesses all spoke at some length as to the applicant’s desire to complete his tertiary studies and the hardship that would be imposed should his visa cancellation not be set aside.
  5. In the NOICC response, the applicant stated that if his visa were to be cancelled, he would have to return to China and would be unable to study the Bachelor of Commerce degree at the University of Sydney. The delegate refuted this assertion, maintaining that if the applicant’s visa were cancelled, he would still be able to lawfully remain in Australia while awaiting the outcome of his pending Student visa application, lodged on 11 March 2021.
  6. In the NOICC response, it was stated that if the applicant were forced to return to China, the applicant will have trouble in recommencing his studies as his ‘Gaokao’ results (The National College Entrance Exam) were used to study abroad and cannot now be used to secure a place in a Chinese tertiary institution. It was claimed that without tertiary academic qualifications, the applicant will struggle to secure employment in China.
  7. The Tribunal has considered the applicant’s claims pertaining to hardship. The Tribunal accepts that the applicant is committed to his studies and is now making sound academic progress with his Bachelor of Project Management studies at the University of Sydney. The Tribunal accepts that the University of Sydney is a leading and prestigious academic institution and the applicant wishes to remain a student at the University rather than return to his studies in PR China. The Tribunal ultimately accepts there will be considerable hardship to the applicant in relation to his tertiary studies should his visa be cancelled.
  8. The Tribunal notes that the delegate has submitted that any hardship can be mitigated on the basis that the applicant still has his Student visa application outstanding before the delegate. Presumably the applicant would be able to apply for a Bridging visa E to allow him to remain in the community whilst this application was finalised.
  9. The applicant’s representative Mr Dobbie has raised the issue of Public Interest Criteria (PIC) 4013 and the challenges the applicant faces should his Bridging visa be cancelled.
  10. Public Interest Criteria 4013(2) provides that an applicant is affected by a “risk factor” if a visa previously held by them is cancelled under s 116 of the Act – as is the case in this review. Public Interest Criteria 4013(1) and (2)(d) suggest that the applicant’s pending Student (subclass 500) visa application would be refused. Clause 500.217(1) requires the applicant to satisfy PIC 4013 for the grant of the visa.
  11. In such circumstances, the applicant would not be able to be granted a further Student visa until three years after the cancellation unless he is able to demonstrate “compelling circumstances that affect the interests of Australia”; or “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen”. As the applicant and his family are not Australian permanent residents or citizens, there are no relevant compassionate or compelling circumstances. The Tribunal considers it would be extremely doubtful that the ongoing studies of a temporary Student visa holder could be construed in any realistic way as “compelling circumstances that affect the interests of Australia”. In such circumstances, the Tribunal considers the likelihood is the applicant would be unable to successfully progress his outstanding Student visa application and subsequently remain in Australia to complete his studies at the University of Sydney. The Tribunal considers this represents a significant hardship to the applicant.
  12. The Tribunal does note that PIC 4013 refers to applications made after the cancellation of the visa. In this case, the application for a Student visa was made prior to the cancellation of the relevant Bridging visa but remains undecided. There is nothing before the Tribunal to suggest that PIC 4013 would not in such circumstances still apply.
  13. The Tribunal considers the operation of PIC 4013 represents a genuine potential hardship for the applicant given his desire to complete his ongoing tertiary studies.
  14. The applicant also stated both in his oral testimony at the Tribunal’s hearing and in his written statements that if his visa were cancelled, his parents would be disappointed, and the decision would have a negative impact on the health and wellbeing of his grandmother, who has been diagnosed with cancer. He states that he would like his visa to be reinstated so he can be a good role model for his younger brother in China. The Tribunal accepts cancellation of the applicant’s visa would present some hardship for his family and disappointment. This is to be expected. The Tribunal notes that the applicant does not indicate he has any family living in Australia. He says his younger brother, parents and grandmother are living in PR China, meaning cancellation of his visa and any departure will not impact any family residing in Australia. Whilst accepting there is some hardship to his family, and the Tribunal appreciates the disappointment of his parents especially, the Tribunal ultimately provides limited weight to any hardship imposed on the applicant’s family.
  15. The applicant provided letters of support from three close friends to the Department, and from two close friends to the Tribunal, demonstrating he has established some social networks in Australia.
  16. Three of the witnesses above provided oral testimony at the Tribunal’s hearing. The Tribunal accepts the applicant has a good social network in Australia. The Tribunal considers the applicant is able to maintain at least some of this network through social media and other electronic and telephonic communication systems should his visa be cancelled, and gives the claims of hardship limited weight. The Tribunal gives any hardship imposed on his social networks in Australia limited weight.
  17. The Tribunal has considered all the evidence before it pertaining to the hardship cancellation of the applicant’s visa will cause. The Tribunal considers the hardship in relation to the applicant’s social network in Australia is limited. Whilst the Tribunal appreciates the disappointment and loss of investment in the applicant’s future that would be felt by his parents, the Tribunal notes that the applicant’s family are in PR China. He has no partner in Australia and no family. The Tribunal gives limited weight to any hardship to his family may face from cancellation of his visa. The Tribunal considers the applicant’s claims that he won’t be able to enrol in a good university in PR China and eventually obtain excellent employment as largely speculative.
  18. The Tribunal does however give some weight in the applicant’s favour in relation to his studies, and the adverse impact cancellation of his visa will cause the applicant. The Tribunal accepts the applicant is now a focused and determined student with a strong desire to undertake and complete his tertiary studies at the University of Sydney. The Tribunal furthermore notes the submissions of Mr Dobbie in relation to the potential operation of PIC 4013, and the likelihood that cancellation of the applicant’s Bridging visa will have the knock-on effect of ensuring the applicant’s outstanding Student visa is in all likelihood refused. The Tribunal accepts this to be a genuine hardship to the applicant.
  19. In relation to the degree of hardship that may be caused, the Tribunal weighs this factor against cancelling the visa.

Circumstances in which ground for cancellation arose.

  1. The cancellation arose from the conviction of the applicant of a criminal offence in the State of New South Wales. The applicant was convicted at the Downing Centre Local Court in the State of New South Wales of Reckless wounding – T1.
  2. According to the Office of the Director of Public Prosecutions Agreed Facts and the NSW Police Fact Sheet, on 17 July 2020, the applicant attended a friend’s birthday party at her apartment in Zetland. He arrived at approximately 11:30pm. The guests at the party were playing drinking games until 3:00am when one of the guests (‘the victim’) suggested they finish playing the drinking game and go home. The applicant disagreed and did not want to finish the drinking game. The applicant and victim started arguing, and a fight then ensued between them, during the course of which the victim pushed the applicant backwards, causing him to fall over a chair and onto the floor. As he was falling to the ground, the applicant grabbed the victim’s shirt and dragged him to the ground. The victim was on top of the applicant, grabbing the applicant’s torso and holding him on the ground. While on the ground, the victim punched the applicant and the applicant punched the victim. The struggle continued for about ten seconds before the applicant let go of the victim and they were separated by other guests.
  3. The victim then went and sat on the sofa with the party’s host. The applicant then swung a broken beer bottle towards the victim’s face resulting in a wound to the victim’s left cheek.
  4. The applicant swung the bottle a second time towards the victim. The victim caught the bottle with both of his hands, resulting in cuts to his hands and fingers, before the applicant grabbed the broken bottle out of his hands.
  5. The victim then ran to the bathroom and called his flatmate to come pick him up and take him to hospital. He did not call the police as the applicant was outside the bathroom, knocking on the door and asking if the victim was calling the police. At approximately 4:00am, three friends arrived at the apartment and accompanied the victim to the hospital.
  6. The victim received treatment for a 3cm cheek laceration which was repaired with two layers of sutures and superficial lacerations to his right and left upper limbs, namely several small cuts to his middle right hand finger, a cut on his left middle finger and a small cut to his left wrist which was stitched. The laceration on his left cheek will leave a scar.
  7. On 23 July 2020, the Police arrested the applicant at his residence and transported him to Mascot Police Station where he was charged. The applicant was subsequently remanded in custody until bailed in January 2021. On 15 July 2021, the applicant was convicted of and sentenced to:
  8. In the applicant’s NOICC response, the applicant through his representative claimed that ‘[i]t has been agreed that the applicant acted in self-defence, as the fight was initiated by the victim’. In the applicant’s ‘Confession letter’, he expresses his remorse for his actions and the physical and psychological harm it caused the victim. He admits his actions were impulsive. He states that the social isolation and loneliness he experienced throughout the pandemic, along with the additional pressures of study made him very anxious and emotionally unstable. This is supported by both Forensic Psychological Reports of Clinical Psychologist Ms Stephanie Bennett, the first dated 19 April 2021, and the second dated 6 February 2023. Ms Bennett is of the opinion that the applicant’s lack of family in Australia, his English language barriers and his friends moving back to China due to the COVID-19 pandemic, heightened the social isolation that he experienced as a result of various social restrictions as a result of COVID-19. She states the applicant was also particularly distressed from a relationship breakdown with his girlfriend in April 2020 and that it is Ms Bennett’s opinion that the applicant was experiencing stress for several months prior to the offence.
  9. Ms Bennett stated the applicant’s significant alcohol intoxication greatly contributed to his behaviour on the night of the offence, in that he was disinhibited and exercised poor judgment and decision-making. It was Ms Bennett’s opinion that the applicant was immature and socially unsophisticated; that he was not particularly reflective of his own thought processes and emotions, and thus, he lacked the capacity to respond skilfully (e.g. problem-solving) when the victim started arguing with him, and then was aggressive towards him. She claims the applicant’s stress at the time of the offence may also have resulted in increased mood irritability, which perhaps heightened his emotional response and subsequent impulsiveness.
  10. In Ms Bennett’s 2021 report, she states the applicant has responded positively to a group alcohol program and has not consumed alcohol since this time, and his prospects of rehabilitation are good. In Ms Bennett’s 2023 report, she states that the applicant now consumes alcohol on an extremely rare basis, and has not consumed alcohol in many months. In the instances where he has consumed alcohol, he has had only one standard drink. He acknowledges that his excessive alcohol intoxication played a role in the offence being committed and this is the main reason that he refrains from consuming alcohol. He has shown appropriate levels of remorse for his offence and has spent time reflecting on his behaviours
  11. In the NOICC response, the applicant through his representative claims that ‘[t]here is no evidence to suggest that the applicant has a history of problematic alcohol use. Prior to the offence, the applicant only engaged in occasional recreational alcohol use...and would usually limit himself to 1-2 standard drinks’. The applicant concedes that excessive alcohol consumption played a role in his offending, however that he has maintained sobriety since the offence, attended an alcohol use program whilst in prison, and has completed AOD counselling as treatment.
  12. In the applicant’s ‘Confession letter’, the applicant states he complied with his sentencing conditions, by reporting to the police station each day and participating in alcohol classes (Odyssey House SMART Recovery). The Attendance & Participation Form from SMART Recovery Australia that was provided to the Department shows the applicant attended meetings at Odyssey House in Central, Sydney eight times throughout July to October 2021. He states he would try to refrain from consuming alcohol, and consider the types of friends he socialises with, so as to avoid those encouraging him to drink. The claim that the applicant has abstained from alcohol since the time of the offence is support by the character references provided to the Department by Mr Bill Daopeng Liu and Mr Quinwei Gao (Wilson).
  13. The Tribunal has considered all the evidence before it in relation to the circumstances in which the ground for cancellation arose.
  14. The Tribunal considers the offending of the applicant was very serious. Whatever the state of inebriation of the applicant and his wider personal circumstances at that time, the actions of striking a person twice with a broken beer bottle are quite frankly reprehensible. There is considerable conjecture in relation to the initial conflict between the parties as to who pushed and punched who first. Whatever the circumstances, it does not in any way, in the Tribunal’s opinion, justify such a vicious, highly dangerous and anti-social act. The victim could conceivably have been blinded for life by the applicant’s drunken and violent behaviour.
  15. The applicant has paid a considerable price thus far for his unacceptable behaviour which has included over six months remanded in custody at Silverwater Gaol. He remains on a Community Correction Order today.
  16. The Tribunal gives some weight to the applicant’s acceptance of responsibility for his actions and his statements of remorse both in writing and at the Tribunal’s hearing. The applicant explained at the hearing that he has attempted to contact the victim to personally apologise to the victim and his family.
  17. The Tribunal also gives some weight to the fact that the applicant, a young man, was never involved in any incidents involving the Police prior to this event and has not been involved in any further incidents that have required the involvement of the authorities. The evidence suggests the applicant’s appalling actions in July 2020 were a one-off due to a range of factors discussed earlier. This conclusion is supported by the professional evidence of Ms Bennett.
  18. The Tribunal has taken into account the report dated 3 February 2022 by Community Corrections of the NSW Department of Justice that assesses the applicant as being at low-risk of reoffending. The report noted the applicant’s remorse, his willingness to undertake counselling and community work, and his appropriate behaviour through the assessment process.
  19. The Tribunal also notes the applicant’s oral testimony and written submissions as to his willingness to almost cease the consumption of alcohol entirely.
  20. The Tribunal has taken into account the considerable evidence before it in relation to the circumstances in which the ground for cancellation arose. The circumstances in their own right heavily weigh in favour of the cancellation of the applicant’s visa. The Tribunal notes that the applicant was an adult when he committed this criminal act of reckless wounding. It is entirely reasonable to expect the taking of such level of responsibility by the applicant. Such violent and reprehensible behaviour is simply unacceptable in Australian society.
  21. The Tribunal has however taken into account that there is no evidence of any other adverse interaction by the applicant with the law either offshore or in Australia before or since the events of July 2020. The Tribunal considers the applicant’s remorse for his anti-social behaviour – supported by his witnesses at the hearing – appears genuine. The Tribunal takes into account that the applicant has taken meaningful and successful it would appear steps to address his problems with alcohol, including completing the alcohol abuse program at Odyssey House and largely abstaining from the consumption of alcohol. The evidence suggests the applicant continues to comply with his 18-month Community Correction Order that is due to expire in April.
  22. The applicant has explained to the Tribunal the background to the convictions and his recollection of events. Having taken all the evidence into account, the Tribunal weighs the circumstances in which the ground for the cancellation arose reasonably strongly in favour of cancelling the visa.

Past and present behaviour of the visa holder towards the Department

  1. The Tribunal has considered the past and present behaviour of the applicant towards the Department. The decision record the applicant provided indicates the applicant responded to the NOICC and has actively engaged in the cancellation consideration process. There was no information to indicate the visa holder has not cooperated with the Department in relation to the current cancellation consideration, or previous interactions.
  2. On the evidence before it, the Tribunal weighs this factor slightly against cancelling the visa.

Whether there would be consequential cancellations under s 140

  1. The applicant confirmed at the hearing there are no dependent visa holders as part of his visa. The Tribunal therefore finds that there will be no consequential cancellations under s 140 if the visa is cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

Mandatory legal consequences of a decision to cancel the visa

  1. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. He will also be subject to a s 48 bar which will limit his options in applying for further visas in Australia. Depending on the visa applied for, the Tribunal notes that the applicant will be subject to Public Interest Criteria 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date except in certain circumstances.
  2. The Tribunal notes that on 11 March 2021, the applicant applied for a new Student (subclass 500) visa. The applicant was granted the Bridging A (subclass 010) visa currently under review as part of that process. The applicant’s Student visa application remains unresolved before the delegate at the time of decision.
  3. The delegate has stated in his decision record that the applicant may be able to apply for a Bridging visa E that may allow the applicant to remain in Australia until his Student visa application is finalised by the Department. The applicant through his representative Mr Dobbie has raised concerns that this may be ultimately futile due to the operation of PIC 4013 and its impact upon the applicant’s outstanding Student visa application, as discussed between paragraphs 43 and 47 in this decision record.
  4. The legal consequences of the cancellation specific to the applicant is that he may be removed to Immigration detention upon cancellation unless he is granted another visa – likely a Bridging visa E pending the resolution of his Student visa application before the Department. The evidence before the Tribunal however suggests that, should the applicant’s Bridging visa be cancelled, his outstanding Student visa application may potentially subsequently be futile due to the requirements of cl 500.217(1) and the impact of PIC 4013 (unless the applicant can submit compelling interests that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen).
  5. The Tribunal weighs this factor, in relation to the operation of PIC 4013, slightly against cancelling the visa.

International obligations – non-refoulment

  1. The Tribunal is not aware of any international obligations which would be breached as a result of the cancellation. None have been claimed.
  2. The applicant has not applied for a Protection visa, nor indicated he fears returning to China for a convention reason. The applicant has not claimed to have any children in Australia; therefore cancellation of the applicant’s visa would not breach Australia’s international obligations under the Convention on the Rights of the Child, or the International Covenant on Civil and Political Rights.
  3. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

Any other relevant matters

  1. A Forensic Psychological Report dated 19 April 2021 by Clinical Psychologist Ms Stephanie Bennett was provided to the Department. A further Forensic Psychological Report dated 6 February 2023 by Ms Bennett was provided to the Tribunal. Both reports discuss the applicant’s risk of general, and violent reoffending.
  2. Ms Bennett states in both reports that the applicant’s risk of criminally reoffending, both general offending and violent offending, is low. She submits in her report of 6 February 2023 the applicant has numerous protective factors that would serve to ameliorate his risk of offending which include: he has prosocial friends; he has supportive parents; he has no other history of violence; he is engaging in full-time study; he engages in some employment; he has no mental health condition; and he has no substance use problems. He has good-self-regulation skills and does not act impulsively on a day-to-day basis.
  3. The Sentencing Assessment Report completed by Ms Mary Johnston, Community Corrections Officer and dated 14 July 2021 also assesses the applicant’s risk for reoffending as low.
  4. The findings of these reports were supported by the oral testimony of the applicant’s three witnesses at the hearing.
  5. The Tribunal has considered the applicant’s submissions concerning any other relevant matters, which it interprets as any likelihood of reoffending, and weighs the matter slightly against cancelling the visa.

Conclusion

  1. The Tribunal has weighed the considerations. In this case, the Tribunal has considered the seriousness of the applicant’s conviction, his committing of a brutal act of wanton violence against an acquaintance of one of his friends at what should have been a convivial occasion, and the fear and injury his actions caused this individual. The Tribunal notes the injuries that the applicant caused could have been worse had others not intervened. The Tribunal has little tolerance for such anti-social behaviour by those that have been provided with the privilege of remaining in the community whilst their substantive visa applications are assessed. The circumstances in which the ground for cancellation arose weigh reasonably strongly in favour of cancelling the applicant’s visa.
  2. The Tribunal however ultimately has considered that the circumstances in which the ground for cancellation arose are ultimately outweighed – albeit it narrowly – by the other considerations.
  3. The Tribunal considers the applicant has a genuine and important purpose to remain in Australia – his tertiary studies at the University of Sydney in which he is now making good progress. The Tribunal takes into account that cancellation of the applicant’s Bridging visa will potentially result in the refusal of his outstanding Student visa application and his inability to complete his studies. The Tribunal considers ceasing his studies in this fashion would also constitute hardship to the applicant.
  4. More importantly, the Tribunal has placed greater weight on any other relevant matters which includes the applicant’s actions since the events of July 2020 that suggests the applicant’s behaviour was simply a “one-off”, a moment of inebriated stupidity by a young man who had consumed some twenty drinks and was unable to engage in appropriate self-control. The applicant’s behaviour since then – where he has clearly reformed his character; is studying at university successfully; has undertaken alcohol abuse programs and abstained from drinking; and has almost completed his 18-month Community Correction Order – all suggest there will be no future reoffending. The Tribunal considers his statements of remorse are genuine, and importantly he has a good network of responsible, highly-educated and motivated friends around him to provide any support he needs. The Tribunal notes there is no evidence or claim of any mental health conditions affecting the applicant.
  5. The Tribunal has carefully considered the applicant’s evidence and his explanations and submissions both independently and cumulatively. Taking all the considerations into account, the Tribunal considers the visa should not be cancelled.
  6. The Tribunal notes that this is not to excuse the seriousness of the applicant’s offending in anyway. The Tribunal accepts however the evidence before it as to the offending being a one-off event, and the considerable and significant efforts that the applicant has made to redeem himself. The Tribunal has provided the applicant here with a genuine opportunity to continue to redeem himself and complete his studies. Should he reoffend, the Tribunal would suggest any future decision-maker not afford him the same tolerance.
  7. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

  1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.



Justin Owen
Deputy President

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