2000621 (Migration)

2000621 (Migration) [2020] AATA 1513 (13 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2000621
MEMBER:David Barker
DATE:13 March 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 13 March 2020 at 1:35pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal conviction – intensive corrections order – discretion to cancel visa – employment, study, rehabilitation courses and volunteering – hardship to Australian citizen wife and step-child – wife’s mental health – best interests of child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), 375A
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

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

This is an application for review of a decision dated 7 January 2020 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).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of an offence in [Suburb 1] District Court. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
BACKGROUND
The applicant is a national of Vietnam and is [age] years old. He first travelled to Australia [in] December 2013 on a [student] visa.
The applicant’s sponsor was born in Vietnam and is [age] years old. She came to Australia in 2005 and was granted Australian citizenship in 2010. The sponsor has one child, born [Month, Year].
The applicant and his sponsor were married [in] March 2015. He applied for the Combined Partner visa [in] March 2015 and was granted the UK-820 provisional partner visa [in] December 2016.
Documents provided to the Tribunal prior to or at the hearing include:
·Written submission from the applicant
·Letter confirming employment with [Employer], dated [April] 2019;
·Payslips from employment with [Employer];
·Letter from [B], AOD Counsellor, South Western Sydney Health District, dated [July] 2019;
·Letter from Venerable [C], [a] Buddhist temple, [Suburb 2], NSW, dated [January] 2020;
·Screenshot of ‘My applications’ screen;
·Extract from Residential Tenancy Agreement;
·Copy of letter from the applicant’s wife to the Presiding Judge of the [Suburb 1] District Court, dated [July] 2019.
CONSIDERATION OF CLAIMS AND EVIDENCE
The s.375A Certificate
The Department’s file contains a Certificate issued under s.375A of the Act which identifies documents in the file, the release of which the Department has indicated are not in the public interest. This Certificate was brought to the attention of the applicant at the start of the hearing and submissions were sought from him in relation to the validity of the Certificate. The applicant indicated he had no comment as to the validity of the s.375A Certificate.
I am satisfied the s.375A Certificate is valid, as the information in the documents specified were provided to the Department in confidence and I am satisfied that this aspect be respected. Notwithstanding this, the Tribunal considered it appropriate to give the applicant the gist of the information contained in the documents restricted through the action of the Certificate. This was that the documents contained information provided to the Department by the NSW Police regarding the offences upon which the applicant was convicted and the details of the sentence he received in relation to these criminal convictions. In providing the applicant with this gist, I noted that it was information detailed in documents provided to the Tribunal by the applicant and was therefore not information which needed to be put to him pursuant to the provisions of either s.359A or s.359AA of the Act.
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?
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(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)); …
In the present case, the applicant is the holder of a Partner (Temporary) (Class UK) (Subclass 820) visa. In association with his 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).
According to those documents, the applicant was, [in] July 2019, convicted of offences against a law of NSW and was sentenced to an Intensive Corrections Order for 20 months. The offences the applicant was convicted of were:
i.Cultivate prohibited plant in greater than or equal to a commercial quantity – cannabis.
ii.Use / Consume / Waste electricity without authority.
In the decision record the delegate noted that the applicant had not responded to a Notice of Intention to Consider Cancellation (NOICC) which was sent to his migration agent on 6 December 2019. The Tribunal has reviewed the email address for electronic communication, including notifications, which was provided to the Department by the applicant on his partner visa application and noted that the email address is that of his authorised recipient and authorised representative. This is the email address to which the NOICC, the notice and the delegate’s decision record were sent.
In a written statement, dated 28 January 2020 and in his oral evidence at hearing the applicant contended that the migration agent he was previously assisted by did not pass on to him the NOICC sent on 6 December 2019. The Tribunal acknowledges this claim, but is satisfied that the NOICC was sent to the applicant to the address and by the method he had provided to the Department. In any event, at hearing the applicant acknowledged that he was convicted of the offences, but sought the exercise of discretion not to cancel. It is unfortunate if the migration agent previously assisting the applicant did not pass on the NOICC to him, however any uncertainty in relation to whether this occurred is not a determinative issue in relation to s.116, as it is in relation to visas cancelled under certain other sections of the Act.
On the evidence before it, the Tribunal finds that the prescribed ground for cancellation set out 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.
Consideration of discretion
As is referred to above, the Department did not receive a response to the invitation to comment on the NOICC. Prior to the hearing, the applicant submitted a written statement which put forward reasons not to cancel, which could be summarised as follows:
·His migration agent did not make him aware of the NOICC and this is why he did not respond to such a significant natural justice letter;
·His intention to stay in Australia is strong because his beloved family is here now. This is where he and his wife wish to raise their [child] and have a future together;
·His biggest fear is not being there for his family and that they have to live far apart because of his visa status;
·Currently, he is the main income earner of his family, which consists of his wife and step[child];
·If he has to return to Vietnam and the family separated, it will significantly affect his wife’s mentality, because she had a broken relationship once and she is afraid the distance will make them separate;
·Due to the family’s financial hardship, he listened to a friend’s suggestions to commit bad acts;
·He pleaded guilty after he was arrested and during a three-month period of imprisonment he thought a lot and realised his actions were terribly wrong and not a good cause for society;
·In addition to the legal penalties he has faced, he has taken courses to help him be aware of and avoid other social evils such as gambling and drugs. In order to improve himself he has learnt about self-excluding from pubs and also attended English language courses and participated in charitable work at a temple.
The applicant’s oral evidence at hearing was consistent with the submissions contained in the written statement he provided the Tribunal prior to the hearing. The oral evidence provided by his wife was also consistent with the aforementioned submissions from the applicant. She emphasised how upset she would be if the applicant had to return to Vietnam.
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
The applicant first travelled to Australia in December 2013 on a student visa for the purpose of studying the English language and a Bachelor of [Subject]. He gave evidence at hearing that prior to completing the English language course, or commencing the business degree he had met and married his wife. He said that his financial circumstances changed around that time and he decided he could not continue with his studies. He said this was because he wanted to financially support his wife, who had not worked in paid employment since the birth of her child.
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 lack of 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.
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 Subclass 820 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 his wife.
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 her child and gives some weight to this evidence in favour of not cancelling the visa.
The extent of compliance with visa conditions
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)
With respect to this consideration, the applicant gave evidence at hearing that his departure from Australia would cause hardship to him, his wife and step[child], because it would result in a separation between them, as his wife and step[child] would remain in Australia and he would have to return to Vietnam for an unknown length of time. He said this would be difficult for them all and he has difficulty thinking about how this would impact them because it is too hard to contemplate that sort of outcome.
The applicant gave evidence that his step[child] is [age] years old and that [s/he] related to him as a father figure as [s/he] does not have that sort of relationship with [her/his] biological father. The applicant’s wife provided consistent oral evidence in relation to this and other claims made by the applicant regarding the hardship that would arise if the applicant’s visa was cancelled.
The applicant and his wife both claimed that she would suffer financial hardship because she has not worked since the birth of her [child] and the applicant’s income supports their household. The applicant’s wife indicated she is at the present time liaising with the Child Support Agency regarding seeking child support payments from her [child]’s biological father, but to date she has received no support from him or his family. The applicant and his wife gave evidence that she received some family payments whilst the applicant was incarcerated. The applicant gave evidence at hearing that his wife also received some financial support from her mother, who lives elsewhere in the Sydney region. The applicant’s wife indicated she was unable to keep up accommodation rent payments whilst the applicant was incarcerated and that during that period she and her [child] moved back to live with her mother, who looked after her and her [child].
In his written submission to the Tribunal and in his evidence at hearing, the applicant expressed concern as to his wife’s mental wellbeing. He contends his wife got depressed whilst he was incarcerated and also gets depressed when she thinks about his current uncertain visa status and what that may mean for them all. The applicant said that he is worried about his wife because her previous marriage failed and he is concerned that their relationship would be under considerable strain, as would her mental state, if he had to return to Vietnam for an unknown period of time. In relation to this issue his wife said her love for the father of her [child] caused her to be broken when that marriage failed and that she was lucky to meet her current husband. She said that she cannot afford the shock of another separation and that she would be unable to look after her [child] without assistance.
The applicant and his wife gave consistent responses to questions from the Tribunal at hearing as to whether his wife had required any treatment for her described emotional and mental difficulties. They both indicated that she has not sought or required treatment or support from a doctor or mental health professional.
After considering the available evidence, I am not satisfied that it supports the claim that the applicant’s wife is suffering from a diagnosed mental health condition, namely depression. Whilst I accept she was distressed by the applicant’s arrest and imprisonment and the uncertainty this has created for her, their marriage and her [child]’s circumstances, there is no credible evidence to support the claim this has caused the applicant’s wife to suffer the onset of an acute mental health condition, for which she requires either the physical presence of the applicant, or his financial support to effectively manage. The Tribunal places no weight on this factor as a consideration for or against the cancellation of the visa.
In relation to the claim that the applicant’s wife would be unable to care for her [child] without assistance, the Tribunal acknowledges that there could be an impact upon both the applicant’s wife and her [child] if the applicant’s visa is cancelled. However, the evidence does not support the contention that the applicant’s wife would be without support or assistance in that eventuality as it is apparent she has support available from her mother, who she turned to during the period the applicant was incarcerated during 2018. It is also open to the applicant’s wife, as an Australian citizen, to seek income support from the Commonwealth, in the form of family payments to assist with costs associated with her [child] and, if necessary, if she was not able to seek employment for herself, in relation to her own entitlement to an income support payment. The Tribunal places no weight on this factor as a consideration for or against the cancellation of the visa.
The Tribunal acknowledges the evidence from the applicant and his wife that her [child] has no constructive relationship with [her/his] biological father and that the applicant has featured in [her/his] life from when [s/he] was quite young. The Tribunal accepts it is in the best interests of a child to maintain connection with important adult attachment figures in their life during sensitive developmental periods. The Tribunal has placed weight on this factor as a consideration against the cancellation of the visa and has discussed it at further length in a later section of this decision.
The applicant said that he regrets his criminal actions and that he had a lot of time to think in the three-month period in which he was incarcerated, following his arrest. He said he has tried to change himself for the better since he was released from custody, getting full-time employment, taking courses, including a drug, alcohol and gambling awareness course and also volunteering at a Buddhist temple.
The support letter from Venerable [C], provided with the review application supports the claim that the applicant has been volunteering at a Buddhist temple in [Suburb 2]. I acknowledge the support letter reports the positive contribution that the applicant has made through this volunteer activity and that he has discussed his deep sorrow for what he has done and his wish is to now be a good husband, father to his family and useful member of society. 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 I place no weight upon it as a consideration for or against the cancellation of the visa.

With respect to the applicant’s doing a drug, alcohol and gambling awareness course, the support letter from [B], AOD counsellor states the applicant has completed five drug awareness counselling sessions. Whilst this letter does not refer to specific input about gambling, I acknowledge the applicant’s admissions at hearing that he has a history of gambling problems and I accept this factor may have come up during the counselling with [B]. The applicant reported that he is self-excluding from clubs, which is an indicator he is seeking to take a proactive step to reduce the risk of further problem gambling. As a factor, I place some weight upon this as a consideration against the cancellation of the visa.
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, his wife and her [child], 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. Cumulatively, as discussed above, the Tribunal gives these considerations some weight in favour of not cancelling the visa.
Circumstances in which ground of cancellation arose
By way of background, the NSW Police Facts Sheet relevant to the applicant’s aforementioned offences indicates that on 14 August 2018 he was arrested after he was observed by officers from NSW Police attending a residential property thought to be associated with cannabis cultivation. The applicant subsequently made admissions in relation to his involvement in cannabis cultivation and an authorised search of the aforementioned residential premises found evidence of the unauthorised bypassing of electricity supply and [a number of] cannabis sativa plants under cultivation.
At hearing the applicant gave oral evidence he had financial difficulties at the time an old acquaintance, who he had met at a [venue] in 2014, offered him work watering cannabis plants which were under cultivation in a residential premises. In his written statement to the Tribunal he has referred to family financial hardship contributing to him listening to a friend’s suggestions to commit bad acts. At hearing, he said his financial difficulties arose because of gambling debts he had to people in Vietnam because of his gambling on [sport] results. He said that at the time he became involved with the cannabis cultivation he owed around $[amount], inclusive of the amount lost through gambling and interest owing on that principal amount.
At hearing the applicant gave evidence that he was aware that cultivating the cannabis was illegal, but that his friend had told him that what he was asked to do was not that serious. He said his friend told him that the cannabis was being cultivated for the pharmaceutical industry and what made the cannabis cultivation in the residential property illegal was that they did not have a licence to grow cannabis.
In his written statement, the applicant responded to issues raised in the delegate’s decision, including as discussed elsewhere in this decision, and his lack of response to the NOICC, dated 6 December 2019.
The applicant also responded to the delegate’s discussion of his giving the NSW Police, on the day of his arrest [in] August 2018, apparently incorrect residential address details. In his written statement and at hearing he said that he and his wife had only recently moved from [Street 1], [Suburb 3] to [Street 2], [Suburb 3], and he had not updated his driver’s licence. This was the address taken by the Police at the time of his arrest. The Tribunal considers this claim plausible, but notes the applicant did not explain, in his written statement to the Tribunal, why the delegate reports he told the NSW Police that he was unemployed and that he had no dependents or ties in Australia. At hearing, the applicant disputed this contention and claimed he told the NSW Police that he was married and living with his wife and step[child]. He indicated that he was unemployed at the time of his arrest, having been out of work from his part-time employment as [an Occupation] for around a month at that time. The Tribunal makes no finding as to whether the applicant told the NSW Police if he had ties or dependents in Australia and does not consider this, or what he may have told the Police about his employment status to be a factor upon which it has placed weight either towards, or towards not cancelling the visa.
The Tribunal has however formed a clear 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.
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
Nothing adverse is known about the applicant’s past and present behaviour towards the Department. With respect to the delegate’s concern the applicant had not responded to a request he provide evidence to assist with the processing of the permanent partner visa application in February 2017 and the NOICC sent to him in December 2019, the Tribunal has not given these factors weight in favour of cancelling the visa, as it accepts the applicant was not informed of these notices by the migration agent previously assisting him.
Whether there would be consequential cancellations under s.140
There are no persons who would be subjected to consequential cancellation under s.140.
The Tribunal places no weight on this consideration for or against the cancellation of the visa.
Legal consequences of a decision to cancel
The applicant contends that the cancellation of his partner visa would result in his having to depart from Australia and face a period in which he would be barred from applying for a further partner visa. Further to this, he contended that there is no certainty he would be successful in a future visa application after the exclusion period of time has passed.
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 s.48 of the Act which means that the applicant will have limited options to apply for further visas in Australia.
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.
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.
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
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. The applicant has not made and there is no evidence of any claims of protection. There is no indication that the applicant would face any harms or adverse treatment in Vietnam that would enliven Australia’s international obligations.
The Tribunal has also noted the applicant has family in his home country with whom 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.
As to whether the best interests of any children are affected by the cancellation of the applicant’s visa, as a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning children. By being a signatory, Australia has agreed to act in a manner consistent with the CROC, recognising the best interests of the child.
The CROC applies to children under 18 years of age. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the CROC are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights. Article 3 of the CROC states:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
The Tribunal acknowledges the reported positive connection between the applicant and his [age]-year-old step[child]. The applicant’s wife gave credible evidence that the step[child] has not had a relationship with [her/his] biological father or paternal family since birth and that [her/his] connection to the applicant is positive and that [s/he] relates to him as a father figure. She said that her [child] loves the applicant very much. To all intents and purposes, the evidence suggests the applicant, his wife and step[child] have been a family unit since the step[child] was under two years of age. The Tribunal accepts the applicant is a significant male attachment figure in the life of his stepchild. There is no evidence to suggest the applicant has committed family violence or displayed abusive behaviours that would place his stepchild at risk, or otherwise mitigate the positive benefits that would flow to a child through having connection to a significant attachment figure.
The Tribunal is satisfied that disruption to the continuity of this attachment relationship is not in the best interests of the stepchild. The Tribunal accepts that it would be beneficial, and in the best interests of the stepchild, to have undisrupted ongoing contact with the applicant and I consider it appropriate to take into account what would be in [her/his] best interests.
The Tribunal places some weight on this consideration 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
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, her [child] 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 a temple in [Suburb 2].
The applicant has full-time employment with [a] company and by all reports is performing his work duties in a manner which his employer is pleased with. Cumulatively, I have placed some weight on this consideration towards not cancelling the visa.
Any other relevant matters
The Tribunal has reviewed the statement provided by the applicant’s wife to the Presiding Judge of [Suburb 1] District Court, dated [July] 2019. This document provides information regarding the parties’ relationship and the constructive role the applicant plays in the life of his step[child]. She describes his current employment circumstances. The applicant’s wife emphasises the extent to which he has apologised to her for his criminal actions and the impact they have had upon her and her [child]. The issues raised in this letter go to matters considered by the Tribunal in deciding whether to exercise the discretion to cancel the visa. The Tribunal is aware that the parties are in a relationship and there is no indication that the relationship is not genuine. The Tribunal acknowledges the gravity of considering an action that would significantly disrupt the relationship.
Conclusion
The Tribunal has had regard to the principle that the Australian government has a low tolerance to criminal behaviour, of any nature, by non-citizens that are in the Australian community on a temporary basis.
The Tribunal acknowledges this is the applicant’s first criminal conviction. However, the Tribunal considers that the offence for which the applicant has been convicted is a relatively serious offence. The applicant appears to be accepting limited responsibility for his offending and in his submissions has rather focussed on the adverse impact that cancelling his visa would have upon his wife and step[child]. The applicant is being punished for his criminal behaviour through serving a 20-month intensive corrections order and carrying out 250 hours of community service.
The Tribunal finds that there is a child under the age of 18 years in Australia who will be affected by the cancellation. The Tribunal considers the best interests of the applicant’s stepchild would be adversely affected during a developmentally sensitive stage of [her/his] childhood development if there was a prolonged disruption to [her/his] connection with a significant, established adult attachment figure, namely the applicant.
The Tribunal accepts the applicant is contributing to the welfare of his wife and stepchild by the financial contribution he makes to their household through his employment and role as the main source of income in their household. The Tribunal is satisfied he also contributes to the wellbeing of his wife and step[child] through his physical and emotional presence in their household, although the Tribunal is not satisfied the evidence demonstrates that his wife has a diagnosed mental health condition and particular vulnerability arising from any such health condition.
Whilst it may be open to the applicant’s wife and [child] to accompany the applicant to Vietnam and apply for dual citizenship so as to remain there with him and thereby keep their family unit intact, the Tribunal is not satisfied this would be in the best interests of the stepchild. This is because of the benefits accruing to [her/him] as an Australian citizen and the access [s/he] has to health, educational and other opportunities deriving from [her/his] spending [her/his] middle childhood and adolescent years in Australia.
The applicant appears to be taking some steps to reduce the risk of further problem gambling, which appears to be a clear antecedent to the poor decision making that led to his criminal behaviour.
In all the circumstances, the Tribunal has concluded that his visa should not be cancelled. It has considered the government’s low tolerance of criminal behaviour and the relative seriousness of the criminal offence with which he was convicted, but finds that the limited nature of the criminal offending, the punishment imposed for the offence, the importance of the applicant being able to complete the 250 hours of community service which is a condition of his sentence, the impact on his family relationships and the best interests of his step[child], if the visa is cancelled, outweigh those factors which indicate the visa should be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.
David Barker
Member

[2020] AATA 1513

13 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Statutory Construction