2103806 (Migration)
[2021] AATA 2487
•17 June 2021
2103806 (Migration) [2021] AATA 2487 (17 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2103806
MEMBER:Jason Pennell
DATE:17 June 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 030 (Bridging C) visa.
Statement made on 17 June 2021 at 1.20pm
CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) visa –criminal convictions, community corrections order, drug treatment and rehabilitation – discretion to cancel visa – visa history – previous student visa cancelled – current visa granted in conjunction with application for partner visa – best interests of Australian citizen children with medical condition and pregnant wife – no consideration of genuine and continuing relationship – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
CASE
Wan v MIMA (2001) 107 FCR 133
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 17 March 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the applicant’s Subclass 030 (Bridging C) visa under s.116(1)(g) of the Act on the basis that the applicant had been convicted of an offence against the law of the Commonwealth, a State, or a Territory pursuant to r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations).[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.
[1] r 2.43(1)(oa) of the Migration Regulations 1994
The applicant appeared before the Tribunal on 11 June 2021 to give evidence and present arguments. Due to the COVID-19 pandemic, the hearing was conducted via video conference using the Microsoft Teams application. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to do so by having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick. Accordingly, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal also received oral evidence from [Ms A] (the applicant’s wife). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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
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) of the Act and r.2.43(1)(oa) of the Regulations. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Background
The applicant is a [Age]-year-old Vietnamese national born in Ba Ria, Vietnam on [Date 1]. The applicant is married to [Ms A] (the applicant’s wife).[2] The applicant’s wife is an Australian citizen and together, they have two [Age]-year old twins [Child 1] and [Child 2], born [Date 2].[3] Both children are Australian citizens. The twins are diagnosed as autistic.[4] In addition, the applicant’s wife is currently pregnant and due to give birth to their third child in [2021]. Her evidence was that she currently suffers from gestation diabetes.[5]
[2] Victorian Marriage Certificate dated [September] 2018
[3] Birth Certificates of [Child 2] & [Child 1] dated [Date 2]
[4] Report by [Dr A] [Family Medical Clinic] dated 4 December 2020
[5] Statement by [Ms A] dated June 2021.
The applicant’s evidence was that his parents continue to live in Ba Ria, Vietnam. They are now retired but worked as [farmers]. The applicant has an older brother and older sister who also continue to live in Vietnam. The applicant’s evidence was that he completed high school in Vietnam and attended [University 1] for two years to study [Subject]. The applicant travelled to Australia before completing the course.
The applicant arrived in Australia [in] June 2014 on a [student visa] which was granted on 19 June 2014 and due to expire on 30 August 2018. In Australia, the applicant enrolled in the [Subject 1] and [Subject 2] course at [University 2] in Melbourne. The applicant did not complete this course.
As at June 2014 condition 8202 of Schedule 8 of the Regulations stated:
(1)The holder (other than the holder of a Subclass 560 (Student) visa wo is a foreign Affairs Student or the holder of a Subclass 576 (Foreign Affairs or Defence Sector) visa) must meet the requirements of a Subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or…
The applicant’s student visa was cancelled on 19 February 2018 pursuant to s.116(1)(b) of the Act on the basis that he was not enrolled in a course of study thus breaching condition 8202(2)(a).
On 12 December 2018 the applicant lodged an onshore Partner (Subclass 820) visa application and was subsequently granted a Bridging Visa C (Subclass 030) on 14 December 2018. The applicant’s Partner visa is currently pending determination by the department. This bridging visa’s expiry and period of stay was until the applicant’s Partner (Subclass 820) visa application was fully determined by the Department of Home Affairs (the Department).
[In] August 2019[6] while the applicant was on Bridging Visa C, the applicant and his wife were intercepted by police after attempting to leave an area that Victoria Police were patrolling in in [Suburb 1], Victoria. Upon interception police found two mobile phones, and white rocks wrapped in plastic which were believed to be heroin. Later a further search at [a] Police Station found a zip lock bag which was believed to be cocaine, and a smaller blue tablet believed to be ecstasy (MDMA). On the same day at 4:00PM, Victoria Police executed a search warrant at the applicant’s address at [Address] Victoria subject to the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[6] Department File Case [No.] Doc ID 8262334 Victoria Police Summary; AAT Case Number 2103806, Doc ID 8518046 Summons and Charge Sheet
Victoria Police found a large variety of items at the applicant’s residence including $[Amount 1] in cash, two plastic bags containing green vegetable matter, five [Brand name mobile phones], 6 brand new mobile phones, bottles of wine valued at $[Amount 2], four high end designer watches and other high designer brand new goods in original packaging. All items seized from the applicant’s address are suspected as being proceeds of heroin trafficking.[7]
[7] Ibid.
On 9 October 2019 he was charged with:
(a)one charge of the possession of cannabis,
(b)one charge of the possession of heroin,
(c)one charge of the possession of cocaine,
(d)one charge of possession of ecstasy (MDMA); and
(e)five (5) charges of dealing property suspected of the proceeds of crime.
[In] March 2020 the [Magistrates’ Court] found the applicant guilty and convicted of all nine above named charges. Consequently, the applicant served fifteen months on a Community Corrections Order and was required to attend Community Corrections in [Suburb 2]. The applicant was to perform 150 hours of unpaid community work commencing [March] 2020. Further, the applicant was to attend treatment and rehabilitation (including testing) for drug abuse or drug dependency for a period of fifteen months commencing [March] 2020.
The applicant appeared for a deferred sentence for the crime Trafficking Heroin at the Neighbourhood Justice Centre in [Suburb 2] [in] February 2021. The Neighbourhood Justice Centre also functions as a court. The applicant’s evidence was that he received a Community Corrections Order for a further 150 hours of community work.
The Department of Justice & Community Safety - Corrections Victoria advised the Department of Home Affairs that the applicant was convicted and found guilty of the abovementioned offences in the State of Victoria. On 24 November 2020 the Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC). The applicant responded to the NOICC in writing on 8 December 2020 and 10 December 2020.[8]
[8] AAT Case Number 2103806, Doc ID 8247304 Copy of the Department’s Decision, dated 17 March 2021.
The applicant made submissions in response to the NOICC as to why his visa should not be cancelled which included:
(a)he was remorseful for his mistakes,
(b)he has [Age]-year-old twins who were born in Australia and are Australian citizens,
(c)the applicant’s wife, who is the mother of his children, is an Australian citizen,
(d)the applicant’s twins have been diagnosed with autism and each have their own National Disability Insurance Scheme (NDIS) plan,
(e)separation from the family unit would cause long term health issues, including an effect on the mental welfare of the family.
On 17 March 2021 the Department cancelled the applicant’s Bridging Visa C[9] pursuant to s.116(1)(g) of the Act and r 2.43(1)(oa) of the Regulations on the basis that the applicant had been convicted of a crime in the State of Victoria.
Documents
[9] AAT Case Number 2103806, Doc ID 8247304 Copy of Department’s Decision, dated 17 March 2021.
The applicant submitted the following material to the Department[10]
(a)A written submission from the visa holder’s [agent].
(b)A copy of the visa holder’s marriage certificate issued [in] September 2018.
(c)Birth Certificates for his twin [children] born in Australia [Year]
(d)National Disability Insurance Scheme (NDIS) paperwork regarding applicant’s children, including plan approval and funding.
(e)Letter from [Dr B], General Paediatrician of [Community Health], dated 08 December 2020.
(f)Letter from [Dr A], General Practitioner of [Family Medical Clinic], dated 04 December 2020.
[10] Department File Case [No.] Doc 8626354
The Tribunal received the following submissions on behalf of the applicant[11] on 10 June 2021:
[11] AAT Case Number 2103806, Pre-Hearing Submissions 10 June 2021, Doc ID 8518046
(a)Copy of Notification of Cancellation[12] under Section 116 of the Migration Act 1958 dated 17 March 2021 from the Department of Home Affairs.
[12] AAT Case Number 2103806, Doc ID 8247303
(b)Copy of Record of Decision[13] to Cancel under Section 116 of the Migration Act 1958 dated 17 March 2021 from the Department of Home Affairs.
[13] AAT Case Number 2103806, Doc ID 8247304
(c)A certified copy[14] of the Applicant’s Vietnamese passport certified [2018].
[14] AAT Case Number 2103806, Doc ID 8247305
(d)Victoria Police Charge Sheet and Summons dated [August] 2019.
(e)Letter from [Dr A], General Practitioner of [Family Medical Clinic], dated 04 December 2020.
(f)Letter from [Dr B], General Paediatrician of [Community Health], dated 08 December 2020.
(g)Birth Certificate of [Child 1],
(h)Birth Certificate for [Child 2].
(i)A copy of the visa holder’s marriage certificate issued [in] September 2018.
(j)National Disability Insurance Scheme (NDIS) paperwork regarding applicant’s children, including plan approval and funding dated 23 June 2020.
(k)A press release article of ‘Saigon Children’s Charity announced Vietnam Autism Alliance (VAA)’ dated 6 April 2021.
(l)A press release article titled ‘Challenging the representation of autism in Vietnamese media’ by Massey University, dated 30 July 2020 in Medical Press.
(m)A press release article titled ‘Autism on the rise in Vietnam: conference’ by Thanhmiem News dated 14 March 2013.
(n)A press release article titled ‘Lack of care for autistic children in Vietnam causes concern’ by Asia Times dated 10 December 2018.
(o)A statement by [the Applicant] translated by [Mr C] Interpreting from Vietnamese to English, with photograph of Applicant’s original handwritten statement dated 9 June 2021; and
(p)A statement by the Applicant’s wife, translated by [Mr C] Interpreting from Vietnamese to English, with photograph of Applicant’s original handwritten statement dated 9 June 2021.
Does the ground for cancellation exist?
s.116(1)(g) - prescribed ground
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 Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant which states:
(1)For the purpose 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 a holder of a temporary visa other than a Subclass 050 (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 conviction and regardless of the penalty imposed (if any));
For the reason detailed above the, 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
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 arrived in Australia as a holder of student visa [in] June 2014. As referred to above, the applicant did not comply with the conditions on his student visa by failing to be continuously enrolled in a registered course. As result his student visa was subsequently cancelled on 19 February 2018.
On 12 December 2018 the applicant applied for a temporary partner 820 visa and as a result was granted an associated Bridging C (Subclass 030) visa. The applicant applied for the partner visa based on his relationship with his wife. The applicants partner 820 visa application is currently pending before the Department.
The applicant’s wife is an Australian citizen as are his twin [children]. His daughters are now [Age] years old. The applicant claims that both his [children] are autistic. Based on the medical reports provided by the applicant, the Tribunal accepts his [children] are autistic as claimed. In addition, the applicant and his wife are expecting a further child in [2021].
The applicant’s evidence was that he wished to remain in Australia so that he could continue to support his wife and children. It is the intention of the applicant to remain in Australia on a permanent basis with his wife and children.
The Tribunal gives this consideration some weight in favour of the applicant.
The extent of compliance with visa conditions
There is no evidence to suggest that the applicant failed to comply with the 8101 (no work) visa condition whilst on his Bridging C Visa.
Degree of hardship that may be caused (financial, psychological, emotional, or other hardship)
The applicant and his wife both gave evidence that they would suffer significant hardship if the applicant’s visa was cancelled. The applicant’s twin [children] are autistic and are each supported by the NDIS.[15] The applicant claims that if his visa is cancelled, he would be forced to take his children with him to Vietnam. He claims that if this occurs then they would lose their NDIS funding. In addition, he provided the Tribunal with a number of articles in which it is claimed that autism is not greatly recognised in Vietnam with only limited treatment and support available.[16] As the applicant’s twin [children] are Australian citizens, they may not be entitled to be registered under the household registration system known as ho khau in Vietnam. Although its reported that ho khau system has become less rigid, concerns persist that ho khau limits the rights and access to public services of those who lack permanent registration in their place of residence.[17] As such, there is a risk that the applicant’s children would not be entitled to access the limited services available in Vietnam for their autism due to not being registered under the ho khau system.
[15] Letter from National Disability Insurance Agency to the applicant dated 22 April 2020
[16] Times 24h, Saigon Children’s Charity announced Vietnam Autism Alliance (VAA) by Kristan Tan dated 6 April 2021; Medical Press, ‘Challenging the representation of autism in Vietnamese media’ by Massey University dated 30 July 29020. http///.medicalxpress.com/news/2020-07-representation-autism-vietnamese-media.html, Asian Times, ‘Lack of Care for autistic children in Vietnam causes concern’ dated 10 December 2018 http//.asiatimes.com/2018/12/lack-of-care-for-autistic-children-in-vietnam-causes-concern/
[17] Open Knowledge Vietnam’s Household Registration System
Alternatively, if the applicant is forced to return to Vietnam and his family remains in Australia, the applicant would be forced to be separated from his wife and children. The evidence of both the applicant and his wife was that the applicant is currently a fulltime career for his [children]. If the applicant was forced to leave the country, the applicant’s wife would not be able to afford care. As a result, she would be forced to be their full-time career and would not be able to work. As a result, she claimed that they would be in a dire financial position. In addition, the fact that she is pregnant and is expecting a third child in [2021] makes it even more difficult for her to care for the twins. The applicant’s wife also stated that for the benefit of her own mental health and the benefit of the family, it was her intention to return to work. The evidence of the applicant and his wife was that the twins require constant care and attention because of their condition. As such, the applicant had taken on the prime responsibility of the caring role for their [children]. The applicant’s evidence was that if he was returned to Vietnam, his [children] would not be provided the constant care and attention they require.
The Tribunal accepts that if the applicant’s visa was cancelled that it would have an adverse effect on the care and attention provided to his twin [children]. In addition, it will mean that the applicant would be separated from his third child due to be born in August 2021.
The Tribunal places great weight on this factor in the applicant’s favour.
The circumstances in which ground of cancellation arose.
The applicant was convicted of the offences referred to above. As such, the Tribunal is satisfied that the grounds for cancellation exist. The applicant’s evidence was the offences occurred as a result of the applicant becoming involved with ‘friends’ who had encouraged him to use drugs.[18] On the applicant’s own evidence, the offences occurred in circumstances where the applicant had failed to complete his studies and had neglected his responsibilities to his new family.[19] There is no evidence to suggest that the offences occurred in circumstances which were beyond the applicant’s control. It appears that it has been the applicant’s intention to remain in Australia on a permanent basis. He claims that he wishes to commence his own busines in the hospitality industry and has made an application for a partner visa on the basis that he is married to his wife and his children are both Australian citizens. However, despite his claim that he wishes to remain in Australia, the applicant has done nothing to endear himself to the Australian community. Rather, he has failed to complete any course in which he was enrolled, neglected his wife and children, and engaged in illegal activities. Nevertheless, despite his action of the past, the applicant now claims that he is committed to his family and his children. The Tribunal places some weight on this factor against the applicant.
Past and present behaviour of the visa holder towards the department
[18] Statement by [the applicant] translated by [Mr C] Interpreting from Vietnamese to English, with photograph of Applicant’s original handwritten statement dated 9 June 2021.
[19] ibid
As referred to above, the applicant previously failed to comply with condition 8202(2)(a) of his previous student visa by failing to maintain his enrolment in a registered course. As a result, his student visa was cancelled on 19 February 2018 pursuant to section 116(1)(b) of the Act. The Tribunal places little weight against the applicant in relation to this consideration.
Whether there would be consequential cancellations under s.140
The applicant’s wife and two children are all Australian citizens. Accordingly, there is no evidence that indicates that the circumstances of this case are such that any person’s visa would be cancelled under s.140 of the Act. The Tribunal gives no weight in favour or against the applicant in relation to that consideration.
Any mandatory legal consequences
If the visa is cancelled, the applicant will become an unlawful non-citizen and will be liable for detention under s.189 of the Act and removal under s.198 of the Act if he does not voluntarily depart Australia.
In addition, the applicant will be subject to a bar under s.48 of the Act which means he will have limited options to apply for further visa in Australia. The applicant will be subject to Public Interest Criterion (PIC) 4013 because of the cancellation. ‘That is if his visa is cancelled he may be subject to an exclusion period under PIC 4013 if he is required to lodge a visa application offshore as there are limited types of substantive visas he may be able to apply for whilst onshore. Nevertheless, the applicant will be entitled to apply for Bridging E Visa to remain lawfully in Australia while finalising departure arrangements.
The Tribunal gives little weight to this consideration in the applicant’s favour.
Any international obligations
The Tribunal has considered whether Australia would be in breach of its international obligations if the applicant’s visa was cancelled. These include non-refoulement pursuant to the 1951 Convention relation to the Status of Refugees (the Refugee Convention) and its 1967 Protocol (‘the Protocol’), the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). The CRC states that the best interests of the child are primary consideration and that a child shall not be separated from his/her parent against their will, unless competent authorities determine that separation is necessary to protect the interests of the child. The Tribunal notes that the question to be decided in relation to the CRC is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia.[20]
[20] Wan v MIMA (2001) 107 FCR 133, at [27]-[28]
In the applicant’s circumstance, while the Tribunal accepts that the decision to cancel the applicant’s visa is separate from his children’s immigration status and access to treatment in Australia, for the reason expressed above, the Tribunal accepts that the best interest of his children is for the applicant to remain in Australia and continue to care for his children as claimed. The Tribunal gives this consideration considerable weight in the applicant’s favour.
Other relevant matters
There are no other factors relevant matter for consideration.
Conclusion
In making its decision, the applicant should be aware that the Tribunal has only marginally made its decision in the applicant’s favour and does so without making any finding as to whether the applicant is in a genuine and continuous relationship for the purposes of his pending partner visa application. In the normal course, the Tribunal would be content to affirm the delegate’s decision on the basis that the applicant has been found to be guilty of crimes against the Commonwealth and the State. The Tribunal has great concerns about the fact that the applicant has shown little aptitude to comply with his visa obligations in the past. The fact that he has failed to maintain his enrolment in a registered course as a student and has committed serious criminal offences while on the Bridging C visa, gives the Tribunal little confidence that if he is permitted to remain in Australia on a permanent basis, he will contribute to Australian community in an effective and meaningful manner.
Nevertheless, the Tribunal has placed significant weight on the fact that his children are autistic, are Australian citizens and he has another child due to be born in [2021]. The Tribunal has accepted the evidence of the applicant and his wife that he is currently the primary carer for the children and that they would be significantly affected if his visa is cancelled. Therefore, in circumstances where the applicant’s children suffer from a disability, the Tribunal is of the view that the applicant should be given the opportunity to continue to care for them pending the resolution of his partner visa application. As such, it is of the Tribunal’s view that the delegate’s decision to cancel the visa should be set aside.
Considering all the circumstances, 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 030 (Bridging C) visa.
Jason Pennell
Senior Member
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