1911736 (Migration)

[2019] AATA 5686

1911736 (Migration) [2019] AATA 5686 (27 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911736

MEMBER:Melissa McAdam

DATE:27 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 27 November 2019 at 4:52pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – dishonestly obtain financial advantage by deception – consideration of discretion – expressed remorse – opportunity to complete studies – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), r 2.43

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 3 May 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).

2. The visa was granted on 2 June 2018 and was due to expire on 15 March 2020.

3. The delegate cancelled the visa under s.116(1)(g) on the basis that “a prescribed ground for cancelling a visa applies to the holder.”   The relevant ground was prescribed in Regulation 2.43(1)(oa), namely:

   in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa) — that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

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

   NOICC

5. On 5 April 2019 the Department Delegate issued to the applicant a Notice of Intention to Consider Cancellation Under Section 116 of the Migration Act 1958 (‘the NOICC’). In the NOICC the delegate set out the following:

   -According to information from NSW Police, the visa holder was convicted [in] March 2019 in [a named] Local Court of the following offence against the law of the State of New South Wales:

   ·‘Dishonestly obtain financial advantage etc by deception (2 counts)’.

   -The penalties the visa holder received for these offences were:

   ·‘Intensive Correction Order (Aggregate): 15 months, supervised by Community Corrections Service and 150 hours community service work.’

   -As the applicant was convicted [in] March 2019 of an offence against the law of the State of New South Wales, there appears to be a ground to cancel her Student (subclass 500) visa under subsection 116(1)(g) of the Migration Act relying on the ground prescribed in Reg.2.43(1)(oa).

   Response to the NOICC

6. On 24 April 2019 the applicant provided the following written response to the Department in which she includes:

   -A letter in English in which she states:

   ·She came to Australia in 2015 with her ex-husband.

   ·She studied English and enjoyed life in Australia.

   ·After about one year she discovered her husband was having an affair and they divorced in 2017.

   ·She decided to study further to be able to live independently.

   ·It was tough to live in a foreign country for a woman struggling after a divorce.

   ·She studied English and then [Qualification 1] in [Discipline 1].  She is a full-time student studying  [Qualification 2] of [Discipline 2] at [Institution 1]. 

   ·She has complied with her student visa conditions. She worked part-time but never more than her work-hour limitation.

   ·Last year she came to know a group of people who approached her to offer what she thought was a good business opportunity. They told her they wanted to lease some residential houses and sublease to others for profit, but they could not sign a lease due to a past bad record.

   ·At first she did not want to get involved but they persuaded her they would provide her with a good financial background so she would be eligible to sign a lease for them. She agreed to help them to earn some money. She thinks this is not a serious offence.

   ·Together they agreed that the applicant would not let the owner know she is in a sub-leasing business, because most owners would not allow this. At the time she thought she was only doing business and only civil wrongs.

   ·Unfortunately the tenants used the house to run an illegal business of cultivating marijuana. The house was also heavily damaged and the tenants disappeared. She was not aware of this until the police contacted her and charged her with the offence.

   ·The judge sentenced the applicant to a 15 month intensive correction order with an additional penalty of performing 150 hours of Community Service Work. She is also required to participate in employment and education programs, and to allow the Community Corrections Officer to visit and enter the premises where she lives.  She must not leave NSW or Australia without permission.

   ·She understands she has been convicted of an offence however she really hopes her student visa will not be cancelled as it will make her situation worse.

   ·She now understands what she did was wrong. She is very grateful for the judge’s leniency. She needs to remain in Australia to complete her community service work and serve her sentence. If her visa is cancelled she will be unable to do so because she will be deported.  The Intensive Corrections Order may be revoked and she would be arrested and have to serve her sentence in jail.

   ·She would like to complete her study in Australia and become a useful person who  can contribute positively to the community in Australia and her hometown.  She wants the chance to correct what she did wrongly and to improve herself.

   ·If her visa is cancelled it will be a second sentence and ruin her future.

   -A Certificate of Attainment, from [Institution 2] that the applicant was enrolled in General English in 2017 and assessed as satisfactory or above in four subjects.

   -A Statement of Attainment, dated 16 February 2018, from [Institution 2] that the applicant has attained competencies which form part of the [Qualification 1] in [Discipline 1].

   -An Overseas Student Confirmation of Enrolment for the applicant from [Institution 1] for an [Qualification 2] of [Discipline 2], with course start [date] May 2018 and end [date] November 2019.

   -A letter from [Mr A], Owner and Director of ‘[Company 1]’, dated 23 April 2019, stating that the applicant is his employee. [Mr A] is aware of the applicant’s criminal conviction.  He believes that the offending is highly contrary to the applicant’s work ethic and disposition.  He has known the applicant since August 2018 and considers the applicant a talented and benevolent woman who has helped [Mr A] manage his business. The applicant works hard and is also a full-time student. She has to juggle and balance life and work and has recently left a broken marriage.  She shows remorse for committing such a great mistake.  She was too naïve to trust others, allowing them to conduct their crime.  [Mr A] is surprised that the applicant’s visa would be cancelled as the applicant has not had the chance to serve her Intensive Correction Order, so she will be at risk of being jailed.  Knowing the applicant, [Mr A] is sure she will take a great lesson from her experience and work harder to compensate for her mistake.  [Mr A] does not think that the applicant is a serious threat to the community.  [Mr A] will continue to employ the applicant and allow her flexible hours to perform her community service work.

   Delegate’s Decision

7. On 3 May 2019 the delegate decided to cancel the applicant’s visa.  The delegate acknowledged that a decision to cancel the applicant’s visa would prevent her from completing her studies in Australia and may prevent her from complying with her Intensive Corrections Order if she is required to depart Australia. The delegate found this did not mitigate the cancellation ground.

8. The applicant submitted a copy of the decision to the Tribunal.

   Other Departmental Information.

9. According to the Department’s records the applicant was granted a Bridging Visa E on 28 May 2019.

   Information to the Tribunal

   Tribunal Hearing

10. The applicant appeared before the Tribunal on 28 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The following is a summary of the information she provided at the hearing:

    a.The applicant confirmed she had been convicted of a criminal offence in NSW.

    b.She was naïve when she came to Australia and did not realise the things she did were unlawful.  Now she knows better and she would not break the law again.

    c.Her Student visa was due to expire in March 2020.  If her visa is not cancelled she intends to apply for another Student visa.  She was studying a [Qualification 2] course in [Discipline 2] but has not completed it because her visa was cancelled.

    d.She would like another student visa so she can do a course here and study [subject matter].  She does not yet know what institution would offer such a course but she will research this if her visa is not cancelled.  She can study a course in Vietnam but the courses are not as good quality as the ones in Australia. 

    e.She also might be lost if she returns to Vietnam because she has been in Australia for a long time now and is accustomed to life here.  She will go back to Vietnam but she would prefer to be properly qualified when she does.  She would like to do a [Discipline 2] course here so she can be a qualified [Occupation 1].

    f.She is allowed to work 20 hours a week and she does so at a [shop] in [Suburb 1].

    g.She is living with two other people, her friends. She thinks they may have a criminal record in Australia. She does not know what their convictions are. They were not involved in the events which lead to her convictions.  One of them is her boss at the [shop]. He wrote the character reference for her that she submitted to the Tribunal.

    h.She is no longer married to her husband. They divorced two years ago. She will submit a copy of the divorce paper to the Tribunal.  She has not had any contact with him since 2017. She believes he is still in Australia somewhere.  He did not have any involvement in the events that led to her conviction, as far as she is aware.  His name was not mentioned in her court matters.

    i.She earns $200 a week at the [shop].  She has worked at the [shop] for nearly one year. She is acting as manager there.  She pays $100 a week rent and lives on the other $100.  She also has some savings.  She has a bank account into which her salary is paid. She will submit a copy of her bank account statements to the Tribunal.  She is treated well at the [shop. She was not treated very well by employers at other [shops] where she worked previously.

    j.She is not in a relationship with anyone in Australia. Her boss is married but his wife just gave birth and is staying mostly with her parents while the baby is small. She will then return to her home with her husband.

    k.She has completed her 150 hours community service.  She performed these at ‘[Charity 1]’. It is a charity in [Suburb 2].  She sorted clothes there. She has a document showing she completed the required hours which she will submit to the Tribunal.

    l.

    m.She has complied with all her other visa conditions and cooperated with the Department when required.

    n.She has done a lot of thinking.  She will not be involved in anything again that could get her in trouble.  People can make a mistake but they can change.  Australia is a kind country.  At the time she committed the offences her marriage had broken down and she was feeling shattered. Someone offered her $200 to go on the leases and she thought it easy money at the time. She now knows she was very naïve.

    o.She returned to Vietnam in 2018 for Vietnamese New Year because she missed her parents.

    p.If she returns now to Vietnam she will have to take low level work such as a shop assistant. She may be able to trade by ordering items on line and selling them in Vietnam. She would return to Vietnam if she has to but she does not know what she would do there.

    q.She will be very stressed if her visa remains cancelled. She will keep blaming herself for doing the wrong this and destroying her future, knowing it will affect her for the rest of her life.  She has not received any counselling because she does not know here it is available

    r.She spent one week in [a named] prison (remand section) before she received bail and was released. She was very fearful there. She had never experienced anything like it before and never wants to again.  She understands she could go to prison if she is ever involved in anything wrong again.  She is determined to never find herself in such a situation again. Once was one too many times.

    s.She has a close friend, [Ms B], in [Suburb 3]. [Ms B] is a permanent resident in Australia. [Ms B] has just had a baby and the applicant helps her and spends a lot of time with her. She thinks [Ms B] will write a letter of support for her which she will submit to the Tribunal.

    t.She knows she did the wrong thing. However her involvement in the criminal enterprise was very low scale so she was allowed bail after a very short time and not sentenced to prison. She has done nothing wrong since then, and she never will. She wants a second chance to continue her studies and gain a qualification in Australia.  When she worked for the charity she saw a lot of people in need. She would like to be able to help people more. She thinks the charity will write a support letter for her which she can submit to the Tribunal.

    Post-Hearing Submission

11. On 5 November 2019 the applicant sent the following written materials to the Tribunal:

    -A copy of her Divorce Order, in Vietnamese, dated 14 December 2016.

    -A letter from [Mr C], Store Manager, ‘[Charity 1] [Suburb 2]’, stating that the applicant performed 150 hours of community service at the [Suburb 2] shop which he manages. He always found the applicant to be reliable, unassuming, productive, and most cooperative in all the tasks he assigned her. He appreciated her positive contribution. He is more than happy to provide her a personal reference.

    -A Certificate of Appreciation from [Charity 1], dated 26 May 2019, thanking the applicant for supporting the “Good Works of the Society through volunteering”.

    -The applicant’s Bank Account statement showing weekly payments of her $200 salary into the account.

    -A letter from ‘[Ms B]’, dated 3 November 2019 in which she states she is [age] years old and a friend of the applicant. [Ms B] asked that her friend, the applicant, be given a chance to correct the mistakes she made. She has known the applicant for a few years and they worked together at a [shop]. The applicant was a hardworking and dedicated person.  They remain friends.  After the things that happened the applicant became depressed and cried a lot.  She always feels regret about what she did and thinks she was very stupid. The applicant was a good person. They talk about this problem so [Ms B] knows how regretful the applicant is.  She hopes the applicant can be granted a visa so she can pursue her dream in Australia. The applicant will never make the mistake again.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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?

13. 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.

14. The applicant has confirmed that she was convicted of criminal offences in New South Wales in March 2019.  Documents from police and courts also confirm this.

15. In the light of this clear and uncontroverted evidence the Tribunal is satisfied that the applicant has been convicted of a criminal offence in the state of New South Wales.

16. The Tribunal is therefore 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

17. 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’.  These can include the following matters.

    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

18. The applicant came to Australia on a Student visa to study some years ago. Her most recent Student visa was granted in June 2018.  According to the Department’s education records for the applicant, she enrolled in and completed a course of study in English in 2017 and a [Qualification 1] in [Discipline 1] in 2018.  She then enrolled in an [Qualification 2] in [Discipline 2] however her visa was cancelled before she could complete this course.

19. The applicant gave evidence at hearing that she would like to continue her study in Australia and obtain further qualifications in [Discipline 2] here.

20. The Tribunal considers that the purpose of the applicant’s travel and stay in Australia has been for study and that she has been actively pursuing her study goals here. The Tribunal considers this factor in the applicant’s favour.

    The extent of compliance with visa conditions

21. There is no indication in the information before the Tribunal that the applicant has not complied with the other conditions of her visa.  The Tribunal therefore accepts she has complied with her other visa conditions and considers this factor in the applicant’s favour.

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

22. The Tribunal accepts that the applicant will be caused some hardship if her visa remains cancelled.  She will not have the opportunity to complete her studies in Australia and gain qualifications here.  This is likely to result in more limited career opportunities for the applicant in Vietnam.  She will also have spent a significant amount of money to stay and obtain qualifications in Australia, so that this money will be wasted if she cannot do so. The Tribunal therefore accepts the applicant will be caused some financial and career hardship if her visa remains cancelled.

23. The applicant presented consistent evidence, supported by her witnesses, that she is ashamed of her past behaviour leading to her arrest, and that it causes her some emotional distress. The Tribunal accepts that the chance to show she is now a law-abiding person who can contribute positively to Australian society would help her emotional state. The Tribunal therefore acknowledges that it will cause the applicant some emotional hardship if her visa remains cancelled and she does not have an opportunity for a level of redemption in Australia. 

    The circumstances in which the 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

1. As presented by the applicant and the police information the circumstances of the applicant’s offending were not beyond her control.  She was motivated to become involved in deceptive and reckless behaviour by a promise of money.  While she may have been emotionally depressed at the time her actions required a conscious involvement in an unlawful enterprise. The Tribunal considers that the circumstances in which the ground of cancellation arose weigh in favour of cancellation of the visa

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

2. The information before the Tribunal indicates that the applicant has been otherwise cooperative and responsive in her dealings with both the Department and the Tribunal. The Tribunal considers this factor in her favour.

   Whether there would be consequential cancellations under s.140

3. There is no indications of any consequential cancellations under s.140 of the Act

   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

4. If the applicant’s visa remains cancelled she will need to depart Australia before the expiry of her Bridging visa or become unlawfully present in Australia.  If she becomes unlawfully present she will be liable to detention. After departing Australia she will also be subject to a condition under the Regulations that will not allow her to apply again for a visa to Australia within a temporary period. However these are intended consequences of the Act and the Tribunal does not consider that they mitigate against the cancellation of the applicant’s visa.

   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

5. There is no indication that the applicant would face any harms or adverse treatment in Vietnam that would enliven Australia’s international obligations. There is also no indication that the interests of any children are affected by the cancellation of the applicant’s visa.  The Tribunal is therefore satisfied that the cancellation of the applicant’s visa will not result in any breach of Australia’s international obligations.

   Any other relevant matters

6. The applicant was frank in her assessment that she made a shameful error by involving herself in unlawful activity in Australia. She has since been convicted, spent one week on remand in a state prison, and performed 150 hours of community service in a manner that was reportedly ‘productive’ and ‘cooperative’.  She now has regular work as an assistant manager of a [shop]. By all accounts her behaviour has remained positive, constructive, and law-abiding.

7. The offences the applicant committed were serious ones and the applicant has been appropriately punished for them.  Her remorse and expressed intention to never again  involve herself in unlawful activity is acknowledged.  The Tribunal considers that there is significant benefit in now providing the applicant with an opportunity to complete her studies, obtain qualifications, and moreover to continue to positively contribute to the Australian community while she remains in Australia.  The benefit goes not only to decreasing the additional accrued hardships for an applicant who has accepted fault and punishment, but also to the Australian society in providing avenues where the applicant can contribute and learn.

   Conclusion

8. In the Tribunal’s view the factors in favour of not cancelling the applicant’s visa outweigh the factors which support cancelling the visa.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Melissa McAdam
    Member