1930930 (Migration)

[2020] AATA 1452

1930930 (Migration) [2020] AATA 1452 (31 January 2020)

.  DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930930

MEMBER:David Barker

DATE:31 January 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 31 January 2020 at 12:48pm

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicant convicted of an offence – drug cultivation – credibility issues – motivations for involvement – separation from wife – financial hardship – impact on family business plans – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 46, 116, 424AA, 438
Migration Regulations 1994, Schedule 2 Public Interest Criterion 4013; 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 30 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) 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 had been convicted of an offence in [Court 1]. 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. Prior to the hearing the Tribunal received an email from the Department indicating some pages from the written submissions received in response to the Department’s notice of intention to consider cancellation (the NOICC) appeared to be missing and were therefore not taken into account  by the delegate when they made their decision.  The Tribunal subsequently contacted the applicant’s authorised recipient, who subsequently provided a complete copy of the aforementioned written submissions, dated 25 October 2019, and attachments included with the submissions.

4. The applicant appeared before the Tribunal on 22 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was not represented in relation to the review by a registered migration agent, having notified the Tribunal on 16 January 2020 that he had cancelled the appointment of his previous representative.

6. The applicant’s response to the hearing invitation indicated that he wished the Tribunal to take oral evidence from his wife, [the applicant’s wife].  The hearing invitation indicated that unless he advised otherwise, the Tribunal would assume that the applicant would make arrangements for any witness to be available to give evidence.  It also, in the circumstance where a witness could not attend the hearing in person, asked that their telephone number be provided.  The applicant did not provide any such contact details for his wife, who did not in the event, attend the hearing.  When asked as to why this was the case the applicant said it was because his wife was unable to get time off work.

7. The Tribunal proceeded to clarify if the applicant wanted the witness contacted by telephone during the hearing and when he indicated he did and provided a contact telephone number, two attempts were made to contact his wife, unfortunately without success. After a brief adjournment in which the applicant tried unsuccessfully to contact his wife by telephone, he asked that the Tribunal continue to make attempts to call her by telephone, even if this was after the formal closing of the hearing.  The Tribunal indicated that it would not try and contact a witness after the end of a hearing and that it did not consider further attempts to contact the applicant’s wife would likely meet with success.  The Tribunal did however indicate to the applicant that it would give him until 24 January 2020 to provide any written comments his wife may care to make and indeed that it would consider any such comments, or other evidence or arguments received from the applicant up until the time it made a decision in this matter.

8. No further evidence or submissions were received from the applicant and 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

9. 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?

10. 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. It states:

    2.43(1)    For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

    …

    (oa)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));

11. In the present case, the applicant is the holder of a Partner (Temporary) (Class UK) (Subclass 820) visa. In association with their review application, the applicant  provided the Tribunal with a copy of the Department’s notification of a decision to cancel the visa (the notice) and a copy of the record of decision of whether to cancel (the delegate’s decision record).

12. According to those documents, the applicant was, [in] June 2019, convicted of an offence against a law of the Commonwealth, a State or Territory and was sentenced to an Intensive Corrections Order for 18 months.  The offence the applicant was convicted of was:   ‘Cultivate prohibited plant in greater than or equal to a commercial quantity’.

13. In the decision record the delegate noted that in the applicant’s response to the NOICC the applicant confirmed he was convicted of the abovementioned offence and incurred the abovementioned penalty. 

14. At hearing the applicant confirmed this information and acknowledged that he was convicted of the offence, but sought the exercise of discretion not to cancel.

15. On the evidence before it, the Tribunal finds that the prescribed ground for cancellation set out in in r.2.43(1)(oa) exists. 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 power to cancel the visa should be exercised.

    Credibility concerns

16. There is inconsistency in evidence provided by the applicant as to whether he has a history of illicit drug use.  The Tribunal has considered whether this inconsistency raises concern as to the reliability of information provided by the applicant in support of his claims.

17. A statutory declaration from the applicant’s spouse, dated 24 October 2019, amongst other things declares that the applicant has never previously been involved with drugs. The report of [Psychologist A], dated 14 May 2019, reports that the applicant ‘denied using or having experimented with illicit drugs’. Whereas, the letter from [Counsellor A] of [Health Service 1] dated 20 May 2019, confirms that the applicant attended eight counselling sessions from November 2018 to May 2019.  This letter states that the applicant ‘has been abstained from illicit drug use over the past two years’ and that ‘he is fully aware of the consequences of his relapse’ and that ‘his health & family relationships have significantly improved since he stopped using drug.’

18. At hearing, the applicant gave evidence that he had tried cannabis on one occasion, shortly after his arrival in Australia in 2013 and had not enjoyed the experience.  He said that the aforementioned inconsistencies in evidence about his illicit drug use can be explained.  He said that he was advised the drug and alcohol course was hard to gain entry to and that he had to convince the service provider to offer him a service.  He said that he told the service provider that he was a drug user and that he had stopped using drugs three years earlier.  He suggested the service provider may have for that reason commented that he had used illicit drugs during his first two years in Australia.  He said that his wife’s declaration and [Psychologist A’s] reference to his having no prior involvement with drugs was true as they understood it, as he had not told his wife, or [Psychologist A] about the occasion he tried cannabis in 2013.

19. In relation to forming a view about the reliability of evidence provided by the applicant, his explanation for the aforementioned inconsistency is of concern, as taken at face value it suggests  the applicant  will provide untruthful information  if he perceives this to be to his advantage.  However, this explanation is not fully persuasive as it seems reliant on an assumption of naivety and a capacity to be easily deceived on the part of the drug and alcohol worker from [Health Service 1], which would not normally be the case for a health professional working in that field, where client misrepresentation of their use is frequently encountered.  In my view neither scenario reflects positively on the applicant’s credibility as a reliable witness and diminishes weight given to the declaration of [the applicant’s wife], the psychology report of [Psychologist A] and the report of [Counsellor A] of [Health Service 1], as they were prepared on the basis of less than frank and forthcoming information from the applicant.

    Consideration of discretion

20. In the submissions sent to the Department in response to the invitation to comment on the NOICC, the applicant  submitted reasons not to cancel, which could be summarised as follows:

    ·     Prior to committing the offence the applicant  had worked, for two years, as [an occupation 1] until he was dismissed from employment after contracting a persistent cough and taking more time off work than his employer approved;

    ·     Due to his unemployment he was experiencing severe financial hardship;

    ·     It was his first offence;

    ·     He is extremely remorseful and has taken responsibility for his past criminal behaviour;

    ·     He suffers from anxiety and depression;

    ·     He is in stable employment;

    ·     He married an Australian citizen, [named] and has lived with her as husband and wife since May 2014;

    ·     He and his Australian citizen spouse will be adversely impacted if his visa is cancelled.

21. 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

22. The applicant travelled to Australia in December 2013 on a Student visa for the purpose of studying the English language and [a degree subject].  He gave evidence at hearing that prior to commencing the [degree] he had met and married his wife, [named], in May 2014.   He said that his financial circumstances changed around that time and he decided he could not continue with his studies.  He said he sought paid employment, with the intention of returning to his studies after a relatively short period of time, but that as it turned out, he has not resumed study in any course.

23. The applicant gave evidence that he applied for and was granted a Partner visa after he married his wife. This was the visa that was subsequently cancelled by the Department.  Notwithstanding his poor study history not reflecting well on the extent to which the applicant   achieved any academic progress whilst on the Student visa, the Tribunal is of the view that the ground for cancellation relates to the present visa that is the subject of the cancellation and not previous visas held by the applicant. Whether or not the applicant fulfilled the purpose of his Student visa, it is not the cancellation of his Student visa that is under consideration. If there was non-compliance with the conditions of the previously held Student visas, there may have been grounds for cancelling those visas, but such non-compliance is not relevant, in the Tribunal’s view, to the present cancellation.

24. The purpose of a Partner visa is to enable the applicant to remain with his wife in Australia.  The Tribunal accepts the applicant was granted the Partner visa on the basis of his relationship with his wife and accepts, for the purpose of this review that the applicant is in a genuine relationship with [the applicant’s wife]. 

25. As the applicant appears to be in a relationship with his wife, the Tribunal is satisfied that he is fulfilling the purpose of his Partner visa.   The Tribunal finds that it is the applicant’s intention to live in Australia permanently with his wife and gives some weight to this evidence in favour of not cancelling the visa.

    The extent of compliance with visa conditions

26. There is no evidence of any non-compliance with visa conditions and there were no conditions attached to the applicant’s Partner visa.

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

27. With respect to this consideration, the applicant stated at hearing that his departure from Australia would cause hardship to him and his wife because it would result in a separation between them, as she would remain in Australia and he would have to return to Vietnam for at least three years. He said this would be difficult for them both emotionally.  He said that three years is a long time for a young couple to be apart.

28. The applicant said that he regrets the havoc caused to his wife and other people by what he did. He said that he does not want his wife to have to be alone as a result of his having to return to Vietnam for a period of time.  He said he has tried to change himself for the better since he was released from custody, so that he can show his wife and the Australian community that he is a good person and worthy of a second chance and the opportunity to redeem himself.  He said that he volunteers regularly at a Buddhist temple and also took the initiative to do a drug and alcohol awareness course.  He said that he undertook the latter course so that he could improve his understanding of the negative impacts of drugs and alcohol.

29. The support letters and declarations provided with the review application indicate the applicant has been volunteering at two different Buddhist temples, in [Suburb 1] and [Suburb 2]. I acknowledge they report the positive contribution he has made through this volunteer activity and the benefits that applicant is reported to have derived from conversations, reflection and meditation he has done at these religious institutions. It is a good thing that the applicant has contributed to the community and developed his self-capacities through these activities.  I do not however view this as a hardship he has gone through and the fact that he has made such overt and explicit attempts to display his efforts to change and redeem himself is something I place no weight upon as a consideration for or against the cancellation of the visa.

30. With respect to the applicants doing a drug and alcohol awareness course, this is a factor I have also placed no weight upon as a consideration for or against the cancellation of the visa.  This is because, whilst I have noted the applicant's claim his contact with drug uses whilst in custody sensitised him to the harmful effects of drug abuse, I am of the view that the applicant sought entry to the drug and alcohol awareness program because he perceived it would be of benefit to him in ways other than self improvement.  That is, it would convey a useful impression with the authorities, Justice, migration or otherwise. I have formed this view due to the applicant’s concession that he was dishonest in the way he represented himself during what appears to have been a program intake assessment.  I am satisfied he did this in order to manipulate his way into the course.  I am not persuaded he was motivated by other than a wish to overtly show relevant authorities that he was seeking to redeem himself.  Such dishonesty as he has described is not in my view indicative of a person taking trues responsibility for their past criminal and non pro social behaviour.

31. The applicant gave oral evidence that cancellation of his visa would also cause financial difficulties, as his legal expenses to date have been very considerable and his wife is, in February 2020, planning to open her own [business 1]. He said that at the present time they are in a reasonably okay financial position because they both have regular employment.  He is working as [another occupation] in a [business 2] and his wife works in a [specified] agency.  He said the plan is that she keeps her [agency] job, until such time as the [business 1] is successful enough for her to work there full time.  He said that he would also help out at the [business 1] as well.  The applicant said that these plans would be placed in jeopardy, or at least delayed, if his visa is cancelled.

32. The applicant gave oral evidence that he and his wife became stressed after he received the NOICC and realised that he was at risk of deportation.  He said that for him, this developed into a mental crisis.  The response to the NOICC contends the applicant is suffering from anxiety and depression and that cancelation of the visa would affect his already vulnerable mental health and the health of his Australian citizen wife. There is no medical evidence regarding the status of the health of the applicant’s wife and no indication that she suffers from diagnosed mental or physical health conditions.  The sentencing assessment report prepared by [State Agency 1], dated 20 May 2019, indicates the applicant has undergone a mental health assessment which noted no official diagnosis was reported. At hearing the applicant gave evidence that he has at no stage being prescribed medication for anxiety, depression or other mental health conditions. The report of [Psychologist A], psychologist, does not highlight any diagnosed mental health conditions affecting the applicant at the time that report was prepared or in the past. The applicant said that one of the conditions attached to the intensive corrections order is that he underwent appropriate counselling support, which he is accessing through a Vietnamese speaking health professional, [Doctor A].  He said that he has attended three consultations with [Doctor A] and that his finding this intervention of benefit to him.

33. After considering the available evidence, I am not satisfied that it supports the claim that the applicant is suffering from diagnosed mental health conditions, namely depression and anxiety. The Tribunal places no weight on this factor as a consideration for or against the cancellation of the visa.

34. The Tribunal accepts that the applicant is attending counselling with [Doctor A] as part of the requirements associated with his intensive corrections order.  It is good that the applicant reports a positive response to this intervention.  However, it is a requirement of the orders imposed in response to his criminal conviction and I place no weight on this factor as a consideration for or against the cancellation of the visa.

1. The Tribunal accepts that if his wife does not accompany the applicant to Vietnam, the couple will be separated, at least for a period of time. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the applicant and his wife, including adverse impacts on their emotional functioning and wellbeing. The Tribunal accepts the couple’s financial circumstances would be adversely affected if the visa is cancelled and that this would include impacts on [the applicant’s wife’s] plan to open a [business 1].

2. The Tribunal gives these considerations some weight in favour of not cancelling the visa.

   Circumstances in which ground of cancellation arose

3. By way of background, the written response to the NOICC states:

   Prior to his offence, [the applicant] had always been a law-biding person. He worked as [an occupation 1] at [a named business] for 2 years. Due to the nature of his work that being in cold-rooms, he started having persistent cough followed by an infection. He was subsequently terminated from his employment as he had taken a few days off to get treatment for his infection. Due to the unemployment [the applicant] and were experiencing severe financial hardship [the applicant] had made a bad choice to accept the job. A decision which he is now regretting each and every day.

   This offence was [the applicant’s] first and only criminal offence and he has had no involvement in any prior criminal activities whatsoever. This was a once-off offence which was committed out of foolishness and was entirely out-of-his character.

4. At hearing the applicant gave oral evidence which was broadly consistent with that included in the response to the NOICC.  He explained that he has worked on a consistent basis since he came to Australia at the end of 2013, initially, whilst he was studying the English language, on a part time basis at a business [and] during vacation periods, doing farm work.  After he married he worked for around six months at the [business] on a full time basis and also with a delivery driver.  He then worked for around six months [in another job], before, towards the end of 2015, starting work as [an occupation 1].

5. The applicant stated that when working as [an occupation 1] it was in a refrigerated environment and that this made him unwell.  He said that he took time off in early 2018, because he had a persistent cough and that when he tried to return to work in February 2018, his employer told him that there was insufficient work available.  The applicant said that this, at least in part, reflected the fluctuating demand for [their product], which is a feature of that industry.

6. The applicant gave somewhat inconsistent evidence about the precise circumstances whereby he took the ‘job’ as a cannabis crop sitter.  He initially said that upon finding out he had lost the [occupation 1] job, a number of his friends offered him work, amongst who was the man who offered him work looking after some plants.  At a further point in the hearing, the applicant claimed he took up this fellow’s job offer after he looked for work for a few weeks ‘in vain’. The applicant said he took up this offer of work as it ‘sounded great’ as it was a simple, well paid job offer.  He said that he was offered $250 for two hours per day, on a three day a week basis.

7. The applicant contended that whilst there may be a lawful ground to cancel his visa, consideration should be given to the fact he was not aware whilst he was looking after the plants that they were drugs and that what he was doing was illegal. Upon further questions in relation to this claim, the applicant conceded the plants were under cultivation in rooms within a residential house and that there were [number] plants.  He conceded that he became increasingly suspicious over the period he was looking after the plants.  He claims he confronted the fellow who offered him the job, but then accepted his explanation that the plants under cultivation were rare and precious pharmaceutical plants and that was why they were being grown in the manner they were.  The applicant said that despite accepting this explanation, he started looking for some other type of work, but unfortunately for him, the police raided the cultivation house before he found other work.

8. In the response to the NOICC it is claimed:

   This offence was [the applicant’s] first and only criminal offence and he has had no involvement in any prior criminal activities whatsoever. This was a once-off offence which was committed out of foolishness and was entirely out-of-his character.

9. At hearing, the applicant described the work as a cannabis crop sitter as a ‘spur of the moment’ decision on his part ‘in special circumstances that will never happen again’.  The Tribunal accepts the claim that this is the applicant’s first criminal conviction, as there is no evidence to suggest otherwise. The Tribunal gives this consideration some weight in favour of not cancelling the visa.

10. I am however, not persuaded it was a ‘spur of the moment’, ‘foolish’ or necessarily ‘out of character’ action on the part of the applicant. He describes an economic reason for involving himself in cannabis cultivation.  On his own evidence, he was out of work for a few weeks and then, amongst a range of work offers, took up ‘a good, simple job that paid well’.  This does not present to me as a ‘spur of the moment’, ‘foolish’, or ‘out-of-character’ choice.  Rather, it appears to reflect a choice made by the applicant, after considering alternatives and an option he took up because he perceived it was advantageous to him.

11. As to whether the applicant became involved in the cannabis cultivation in the context of severe financial hardship, as contended in the response to the NOICC, the psychology report prepared by [Psychologist A] indicates the applicant reported his savings were depleted and his rent was due by the time he took up the job as a cannabis crop sitter. I accept his decision to become involved in the cannabis cultivation enterprise was influenced by financial considerations.   However I am not persuaded this choice was made in a context of severe financial hardship, as the applicant states he had only been out of work for a few weeks and his wife was at the time in regular employment.   

12. With regard to the applicant’s claim he was unaware, at least initially that he was involved in illegal activity, I do not find this claim convincing.  The applicant has conceded he was paid what he considered good money for watering and otherwise looking after [plants] that were being grown within a residential building.  He has conceded the plants were cultivated with the use of electricity. He conceded that he has in the past used cannabis and that he kept returning to the cannabis cultivation job, despite developing suspicions as to whether illicit drugs were being cultivated.  The psychology report prepared by [Psychologist A] states at Paragraph 48 ‘[The applicant] said his friend took him to the house in [suburb] in about mid-March. [The applicant] saw cannabis plants cultivated in the house’ and at Paragraph 49 ‘He said, “I tried to convince myself a job is a job”’ and at Paragraph 52 ‘“I was under a lot of pressure to earn money. When he took me to the house, I saw it was used for cannabis.”’

13. The contention that the applicant accepted the explanation of the person who offered him the ‘work’ was growing rare and precious, but otherwise legal, pharmaceutical plants is in my view not plausible.

14. The Tribunal has formed the view that the circumstances of the applicant’s offending were not beyond his control. He was motivated to become involved in cannabis cultivation by the promise of financial gain. His actions required a conscious involvement in an unlawful enterprise.

15. The Tribunal considers that the circumstances in which the ground of cancellation arose weigh in favour of cancellation of the visa.

    Past and present behaviour of the visa holder towards the Department

16. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

17. The Tribunal gives some weight in favour of not cancelling the visa to this consideration.

    Whether there would be consequential cancellations under s.140

18. There are no persons who would be subjected to consequential cancellation under s.140.

19. The Tribunal places no weight on this consideration for or against the cancellation of the visa.

    Legal consequences of a decision to cancel

20. The applicant contends that the cancellation of his Partner visa would result in his having to depart from Australia and face a period of three years in which he would be barred from applying for a further Partner visa.  Further to this, he contended that there is no certainty that after the exclusion period of time has passed, there is no certainty he would be successful in a future visa application.

21. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will need to depart Australia before the expiry of his bridging visa or become an unlawful non-citizen in Australia.  If he becomes an unlawful non-citizen he will be liable for detention.  There is no suggestion that he would be detained indefinitely. In addition, the cancellation could also place a limitation under section 48 of the Act which means that the visa holder will have limited options to apply for further visas in Australia.

22. The applicant expressed concern that he would be excluded from applying for another visa for three years if his current visa is cancelled. It would appear he is concerned about the possible impact of Public Interest Criteria (PIC) 4013, is a Schedule 2 criterion for the grant of some visas, but relevant to the applicant’s circumstances, not a Subclass 309 Partner visa), which in very broad terms requires that three years has passed since the visa was cancelled on certain grounds, unless there are certain compelling or compassionate circumstances.  It is open to the applicant to decide which, if any types of visas he applies for in the future, and I acknowledge that he may be subject to an exclusion period in relation to some future visa applications.  In the view of the Tribunal, these are intended consequences of the Act and I place no weight on this consideration for or against the cancellation of the visa.

23. The Tribunal acknowledges that there is no certainty the applicant would be successful in a future visa application, should he apply for one following the cancellation of his current Partner visa.  Any future visa application would be determined through a due process according to the law relevant to that particular application and I give no weight to this factor as a reason to not exercise the discretion to cancel the visa.

24. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. If the applicant does not hold a temporary Partner visa, this may affect his eligibility for the permanent visa. However these are intended consequences of the Act and the Tribunal does not consider that they militate 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

25. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. 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 mindful that if the applicant believes he would be subjected to any harm in his home country, he is able to make an application for a protection visa. In these circumstances, the Tribunal is satisfied that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

26. The Tribunal has also noted the applicant has family in his home country with which he has maintained ties.  The Tribunal has no evidence before it to suggest they would not support him if he were to return to Vietnam.

27. The Tribunal places no weight on this consideration for or against the cancellation of the visa.

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

28. The cancellation under review is a cancellation of a temporary visa, although that visa may be a prerequisite to the grant of the permanent Partner visa. The Tribunal acknowledges that the applicant has strong family ties in Australia as his wife and her family reside in Australia.  I accept he has a connection to his wife’s family and that they have positive regard for him.  I also acknowledge the connections the applicant has, in more recent times, made with the Buddhist community, through his involvement with temples in [Suburb 1] and [Suburb 2].

    Any other relevant matters

29. The Tribunal has reviewed the statement provided by the applicant to the Presiding Judge of [Court 1], dated [May] 2019. This document provides information regarding the applicant’s family of origin in Vietnam and of his relationship with his wife. The letter states the applicant’s decision to cease study after his marriage was due to his family’s financial crisis in Vietnam, but does not otherwise detail what financial crisis affected his family of origin, or why marriage necessitated him to cease his studies.  He provides information about his employment in Australia and how financial pressures from unemployment enticed him to involve himself with bad people and criminal activities.  He describes two physical assaults whilst in custody and that whilst working [in a job] in gaol, he observed the negative consequences of drug use.  He conveys his regrets about his behaviour and wishes to apologise to the Australian community, society, his wife, his family and his acquaintances.  He states that he is now in steady employment and that he requests another chance to atone for his mistakes and the opportunity to contribute in a beneficial way to the Australian community and society.

30. The Tribunal has considered the applicant’s background and the circumstances giving rise to the ground of cancellation elsewhere in this decision.  As to the applicant’s regret and remorse regarding his offending and consequences flowing from his involvement with cannabis cultivation, I acknowledge his statements of regret and remorse.  However, I find the applicant’s declarations regarding remorse and regret somewhat formulaic. At hearing, in moments his evidence did not appear rehearsed the applicant emphasised the negative consequences on his wife’s business plans over other adverse consequences flowing from a visa cancellation.  At points his oral evidence appeared more rehearsed he referred to his regret that his actions harmed the Australian community and his relationship with his wife.  He also emphasised the difficulties he encountered whilst in custody and this is also a feature of the information he reported to [Psychologist A], the psychologist who prepared a report upon him.

31. In considering the significance of the regret and remorse expressed by the applicant, the Tribunal is mindful of the difficulty understanding the meaning and antecedent factors influencing a person’s professed feelings of regret and remorse.  It is in my view difficult to distinguish someone regretting the trouble they got into, feeling remorseful for the consequences of getting caught and convicted of a crime, from a different sort of regret and remorse, based upon a sincere understanding of and taking responsibility for the consequences of one’s actions. I consider it necessary to not automatically consider expressions of regret and remorse to reflect the latter, or indeed the former.  It is necessary to consider the totality of information and in the particular circumstances of this case, I am not persuaded to give significant weight to the applicant’s professions of regret and remorse as a consideration in favour of not cancelling the visa. 

32. The Tribunal has reviewed the letters and declarations in support of the applicant, including those provided by: [Ms A] - dated 25 October 2019, [Leader A] - dated 13 October 2019, [Ms B] - dated 23 October 2019, [Leader B] – dated 31 May 2019, [Ms C] - dated 22 October 2019, [Ms D] - dated 24 October 2019 and the applicant’s wife, [named] - dated 24 October 2019.   

33. The declaration of [Ms A] declares that she has known the applicant for many years and that he is a nice and gentle person.  I accept this is their perspective on the applicant and the basis on which they hold this perspective.  However, I am less persuaded by the contention in this declaration that the applicant has never committed any offences that cause harm to anyone or to the community.  The cultivation of illicit drugs is a serious criminal offence which can cause harm to both individuals and the community at large. I accept the contention in this declaration that the applicant’s offence was influenced by financial factors, but give this factor no weight in favour of not cancelling the visa.

34. The letter of [Leader A] attests to the sincere and honest nature of the applicant and of the benefit he has derived from volunteering at a Buddhist temple in [Suburb 2]. [Leader A] is a Venerable from the Buddhist temple and expresses the view that the applicant is remorseful for his past mistakes and that he is a man guided by morality and ethical values. I acknowledge the Venerable’s assessment of the applicant’s character, but I am not persuaded it fully reflects his offending behaviour and the decision making process whereby he regarded  involvement in a  criminal enterprise as a viable job opportunity and a means to get out of relatively short term financial difficulties.  Nonetheless, with the qualifications described, the Tribunal has given some weight to the opinion of [Leader B] towards not cancelling the visa.

35. The letter of [Leader B], caretaker of a Buddhist temple in [Suburb 1] sates the applicant has volunteered at the temple on a weekly basis since October 2018.  [Leader B] states the applicant has attended meditation sessions, as well as assisting with gardening at the temple. [Leader B] reports observing positive change in the applicant and that the applicant has discussed his past offence in a manner which displays awareness of the impact of his actions to the community.  I accept this is the perspective of [Leader B] on the applicant and the basis on which they hold this perspective.  As is discussed elsewhere in this decision, when all the available information is considered the Tribunal is less persuaded the applicant has a pro-social awareness of the impact of his actions on the community.  Nonetheless, the Tribunal has given some weight to the opinion of [Leader B] towards not cancelling the visa.

36. The letter of [Ms B], a friend of the applicant from the Buddhist temple in [Suburb 2], also attests to the applicant’s kind, caring and genuine character and the strong work ethic he has displayed whilst volunteering at the Buddhist Temple.   [Ms B], in a similar manner to the declaration of [Ms C], the landlord of the applicant and his wife, refer to the applicant making a ‘wrong decision’ due to his financial pressure and the view that it was a one-off offence that he feels remorseful about.  I acknowledge these views and that they are formed on the basis of personal contact with the applicant.  For similar reasons as those discussed in relation to the letters of [Leader A] and [Leader B], I have given qualified weight to the opinion of [Ms B] in favour of not cancelling the visa. 

37. With particular reference to choices made by the applicant in response to financial pressures, I note that whilst he is assessed as having an overall low risk of reoffending by the psychologist, [Psychologist A] and by his community corrections officer, [Officer A], an identified risk factor for further offending is if he faces future financial pressures.  This is a factor that I am not convinced one can be protected from in life and the potential that the applicant is vulnerable to further criminal behaviours if again placed under financial pressure is a consideration I have given weight in favour of cancelling the visa.

1. The declaration of [Ms D], the mother of the applicant’s wife, declares that the couple’s relationship is good and that the applicant is a good person who takes good care of her daughter. I accept this view and give the positive manner in which the applicant treats his wife and participates in her family’s life some consideration towards not cancelling the visa.  I accept cancelling the visa will have an adverse impact on the applicant’s wife and her family.  

2. [Ms D] declares her confidence that the applicant would never offend again and the basis on which she holds this opinion. I am not as convinced as [Ms D] with regard to this particular factor and give it no weight towards not cancelling the visa.

3. The Tribunal has reviewed the declaration of [the applicant’s wife]. As is discussed elsewhere in this decision, the Tribunal did not have the benefit of [the applicant’s wife’s] oral evidence at hearing, as she did not appear before the Tribunal in person and was not contactable on the telephone contact number provided by the applicant at hearing on request from the Tribunal.  The Tribunal has not received any further written statement or declaration from [the applicant’s wife] in the time provided following the hearing, or up until the time of this decision.  For these reasons the Tribunal considers the declaration of [the applicant’s wife], dated 24 October 2019 to be the most pertinent reflection of her views that is before the Tribunal.

4. For reasons discussed elsewhere, I have placed no weight upon [the applicant’s wife’s] declaration as to the applicant having no prior involvement with drugs. I do however accept her declaration that she does not think the applicant is a bad person and that to her, he has been a caring and wonderful husband. I acknowledge her view the applicant’s criminal offending was out of character and the reasons she holds this view. I accept she feels ashamed and remorseful about the applicant’s criminal behaviour and the shame it has brought upon his immediate family and their family. I acknowledge her wish he can stay with her in Australia and prove he is not a risk to the Australian community.   I have no reason to doubt the sincerity of [the applicant’s wife’s] declarations and as discussed elsewhere in this decision, have given consideration to the hardship she will experience if the visa is cancelled some weight towards not cancelling the visa.  I am however, for similar reasons as are discussed elsewhere, not as confident as her of the basis influencing the applicant’s remorse and regret and that his decision to involve himself in a criminal enterprise was due to being taken advantage of by bad people, rather than as a result of his own informed choice as to how to respond to relatively short term financial pressures caused by unemployment.

5. In relation to this latter point, I note that the response to the NOICC, amongst other things states that the applicant did not commit the crime with mischievous intent for financial gain.  I do not accept this contention and in my view, this is precisely the motivation and intent behind the choices made by the applicant that resulted in his criminal behaviour

6. The Tribunal has reviewed the reports of health professionals and staff from community corrections, including that of [Psychologist A], dated 14 May 2019, [Counsellor A], dated 20 May 2019 and [Officer A], Community Corrections Officer, dated 20 May 2019.  I have concern as to the weight that can be given to the reports of [Psychologist A] and [Counsellor A], due to the applicant’s concession he was less than fully frank and truthful in providing these health professionals information upon which their reports are based.  In relation to the report of [Psychologist A], I am satisfied  his overall assessment of the applicant  as at low risk of further offending, albeit with the proviso that risk would increase if he found himself unemployed and under financial pressure, is consistent with the assessment of [Officer A]  from [State Agency 1].  

7. The Tribunal accepts the professional assessment that the applicant is at the present time at low risk of further offending and gives some weight in favour of not cancelling the visa to this consideration.  The Tribunal has also given weight to the reports that the applicant is good to his wife and that the couple will be impacted if the visa is cancelled. The Tribunal, as is discussed at a number of points in the decision, has not given significant weight to the applicant’s apparent regret and remorse about his involvement in the criminal enterprise that resulted in the conviction that gives rise to consideration as to whether to cancel the visa. This is because I am not persuaded as to the factors influencing his remorse and regret and I am in any event not satisfied remorse and regret are necessarily a determining constraint with respect to the decision making that could result in further offending behaviour. 

8. The applicant’s oral evidence at hearing focussed on the adverse financial impacts that visa cancellation would have upon his wife’s proposed new business venture.  I have placed only limited weight on this in favour of not cancelling the visa to this consideration.  He expressed concern that a period of separation would occur in the relationship if the visa is cancelled and I have given some weight in favour of not cancelling the visa to this consideration and consideration of the overall impact which would occur on the applicant and his wife. However, the weight given to factors that weigh in favour of not cancelling the visa do not outweigh the weight I have given to the circumstances that gave rise to the criminal conviction and after considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

   DECISION

9. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

   David Barker
   Member