2003678 (Migration)

[2021] AATA 3129

2003678 (Migration) [2021] AATA 3129 (14 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2003678

MEMBER:Margie Bourke

DATE:14 July 2021

PLACE OF DECISION:  Melbourne

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 14 July 2021 at 2:44pm

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicant convicted of an offence – spouse’s severe mental and physical health issues – compelling need to remain in Australia – mortgage and stable employment – access to the IVF program – financial and emotional hardship – applicant’s positive rehabilitative prospects – decision under review set aside    

LEGISLATION

Migration Act 1958, ss 48, 116, 140
Migration Regulations 1994, 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 19 February 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).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that the grounds for cancellation were satisfied and the grounds for cancelling the visa outweighed the reasons not to cancel the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 5 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. The applicant through his representative had requested to attend an in-person hearing rather than a hearing conducted by way of video. The hearing had previously been postponed on two occasions due to lockdown restrictions in Melbourne, and on one occasion due to the unavailability of the applicant’s representative. Due to circumstances affecting the member, the member attended the hearing by way of video, but all other participants were present in person in the hearing room at the Tribunal offices. The hearing commenced with the member indicating her preference that the hearing proceed in the interests of the applicant and his wife, and avoiding the stress of further postponement of the hearing, but giving them the option to postpone if they preferred. With the consent of the applicant the hearing proceeded with the member attending by way of video.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g), which are prescribed in regulation 2.43(1) and include at (oa) criminal convictions (for temporary visa holders other than Bridging visa E or Subclass 444 visa holders). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(g) - prescribed ground

8. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(oa) is relevant.

9. The Tribunal is satisfied that the applicant is the holder of a temporary Visa Subclass 820 and the Tribunal is satisfied that he was convicted of an offence against the law of the State of Victoria, namely the cultivation of a commercial quantity of cannabis in [Court 1] [in] November 2019 and was sentenced to [period] imprisonment. Therefore the Tribunal finds that the applicant meets the requirements for the grounds of cancellation set out in reg. 2.43(1)(oa) for the purposes of s.116(1)(g), that he was the holder of a temporary visa other than a subclass 050 or 051 bridging (general) visa or a subclass 444 (special category) visa, and the applicant has been convicted of an offence against the 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)). The Tribunal notes the applicant’s representative’s submissions dated 24 May 2021 stated that the applicant concedes the grounds for cancellation exists.

10. Based on the Tribunal’s assessment of the information available to it, and the submission provided by the applicant’s representative, the Tribunal is satisfied that the ground for the cancellation exists.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

12. 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’.

13. The purpose of the applicant’s travel and stay in Australia: – I am satisfied that the applicant came to Australia as the holder of a student visa, in 2013 and met his wife in Australia and they married in July 2014. I am satisfied that the purpose of the applicant’s stay in Australia is to remain with his wife. I have considered the material before me and I am satisfied that the applicant’s wife has suffered severe mental and physical health issues including a [miscarriage], the loss of an ovary, severe depression and suicide attempt and ideation. I am satisfied that the applicant’s wife believes that her mental health will again deteriorate if the applicant is required to depart Australia. I accept that the applicant’s wife would accompany the applicant if he was required to depart Australia. I accept that the mental health of the applicant’s wife, and the ability of the applicant and his wife to access the best possible IVF treatment would be jeopardised if the applicant and his wife departed Australia. I accept that this amounts to a compelling need for the applicant to remain in Australia. I give the purpose of the applicant’s travel and stay in Australia, and the compelling need for the applicant to remain in Australia weight in favour of not cancelling the visa.

14. The extent of the applicant’s compliance with the visa conditions: – there is no evidence that the applicant has not complied with his partner visa or his bridging visa. I accept there are conditions attached to the applicant’s bridging visa. I give weight to the applicant’s compliance with his bridging visa in favour of not cancelling the partner visa.

15. The degree of hardship that may be caused including financial, psychological, emotional or other hardship: – I am satisfied that the applicant and his wife have a mortgage and stable employment and access to the IVF program in Victoria. I accept that if the applicant was required to depart Australia, his wife would return to Vietnam with him. I accept that this would necessitate the applicant and his wife selling their home, leaving their ongoing employment, and leaving their access to the Victorian IVF program. I accept that the cancellation of the visa would cause financial hardship to both the applicant and his wife. As stated above I am satisfied that the applicant’s wife, who the Tribunal accepts has suffered depression for many years, suffered an escalation of this condition during the period of time the applicant faced the charges and then his incarceration and during the time of her miscarriage and the loss of her ovary and subsequent fertility issues. I accept the evidence of the applicant’s wife and the applicant together with the psychological report, which identified the serious nature of the applicant’s wife’s condition, and her susceptibility to suicidal ideation and suicide attempt. I accept the applicant’s wife’s evidence of her fear that her condition will deteriorate if the applicant is required to depart Australia. I accept that the requirement of the applicant to depart Australia, would have an emotional impact on both the applicant and his wife in relocating to Vietnam. For all these reasons I am satisfied that there would be a significant degree of financial and emotional hardship to both the applicant and his wife, and a significant degree of psychological and psychiatric hardship to the applicant’s wife if the applicant’s visa was cancelled. I give weight to the degree of hardship that would be caused to the applicant and his wife in favour of not cancelling the visa.

16. Circumstances in which the ground of cancellation arose: – I am satisfied that the ground of the cancellation arose when the applicant and his wife were under financial pressure to repay a loan. I accept the [Court 1] judge noted in his sentencing remarks that the applicant had been cooperative with the police, his rehabilitative prospects were positive, his debt to loan sharks was the motivation for his offending, and the applicant was not the person who was in control of the venture in which the offending occurred. However I note also that the judge recorded that a jail term was the only appropriate penalty because of the seriousness of the offence. The applicant was convicted of cultivating a commercial crop of cannabis and sentenced to a term of [period] jail whilst the holder of a temporary partner visa. I give weight to the circumstances in which the ground of cancellation arose in favour of cancelling the visa.

17. Past and present behaviour of the applicant towards the Department: – in the Department’s decision record the delegate refers to whether the applicant successfully completed the requirements of his student visa.  The applicant married his wife within nine months of his arrival in Australia and subsequently applied for a partner visa. The Tribunal does not give weight to the applicant’s completion of a course of study whilst the holder of a student visa, in relation to an assessment of his behaviour towards the Department. The Tribunal notes the Department records the applicant was sluggish in his responses to the Department for request of information. The most important aspect of the applicant’s behaviour towards the Department in the Tribunal’s view is that after the applicant was arrested and charged with the offences for which he was later convicted, the applicant submitted to the Department his Australian Federal Police certificate which was issued prior to his arrest. In the hearing the applicant stated that he was following the advice of his then lawyer when he submitted the police clearance certificate that predated his arrest to the Department. The Tribunal accepts the applicant’s explanation that he followed his agent’s advice but also accepts the applicant knowingly provided the Department with information that was not correct in relation to his status with the police when he provided the police certificate to the Department in March 2018. For this reason, the Tribunal gives weight to the applicant’s past and present behaviour towards the Department in favour of cancelling the applicant’s visa.

18. Consequential cancellations under s.140: – there is no information before the Tribunal that the cancellation of the applicant’s visa would result in any consequential cancellation of any visa held by a dependent of the applicant. The Tribunal therefore gives this consideration no weight in the assessment of cancelling or not cancelling the applicant’s visa.

19. Mandatory legal consequences: – the Tribunal accepts that there would be consequences for the applicant upon the cancellation of his visa, including he would be required to depart or would be removed from Australia, he would be precluded from applying to return to Australia pursuant to s.48 and PIC 4013, for prescribed periods of time and he would be subject to the possibility of being placed in detention prior to his departure. I have given these matters due weight in favour of not cancelling the visa.

20. International obligations: – there is no information before the Tribunal that the cancellation of the applicant’s visa would engage or breach Australia’s international obligations. Therefore the Tribunal gives this consideration no weight in the assessment of cancelling or not cancelling the applicant’s visa.

21. Any other relevant matter: – I have considered the applicant’s representative’s submission in relation to the applicant’s previous good character, and his attempts while serving his sentence to both rehabilitate and improve himself. I note the psychological assessment which identifies the applicant as being at low risk of reoffending. I note and accept the applicant was compliant with bail conditions before he was sentenced, and has maintained his status as a hard-working respected member of the community since his release. The Tribunal accepts the applicant’s evidence of his intention to support and assist his wife. The Tribunal gives this consideration of the applicant’s character outside of the conviction weight in favour of not cancelling the visa.

22. The Tribunal has assessed all the evidence before it, and carefully weighed the circumstances of the applicant and his wife in this review. The Tribunal gives the most weight to the impact of the cancellation of the visa on the applicant’s wife, and has noted the applicant’s wife’s ongoing mental health and physical health issues. The Tribunal has carefully balanced the circumstances of the offending in which the ground for the cancellation arose with the circumstances of the applicant’s otherwise good character and the purpose and compelling reasons for the applicant to remain in Australia, and the hardship that both the applicant and his wife would suffer if the visa was cancelled. Overall, in this review the Tribunal considers that in the circumstances the applicant’s visa should not be cancelled.

23. Therefore, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Margie Bourke
    Member