2209981 (Migration)

[2023] AATA 3599

2209981 (Migration) [2023] AATA 3599 (20 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Jennifer Nguyen (MARN: 2117717)

CASE NUMBER:  2209981

MEMBER:Kira Raif

DATE:20 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 20 October 2023 at 8:29am

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – granted in association with application for partner visa – criminal conviction – participation in group criminal activity – drove vehicle with person and equipment for cannabis cultivation – community correction order and good behaviour bond – discretion to cancel visa – cessation of studies, period as unlawful non-citizen and unsuccessful substantive visa application – need for money – support and hardship to wife and newborn Australian citizen child – no assessment of nature of relationship – Bridging E visa with work and study rights granted – if current visa cancelled, applicant will be able to remain in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
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 501K 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 8 July 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa (“BVC”) under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Vietnam, born in [Year]. He was granted the BVC in December 2021 in association with the application for a Partner visa. In June 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling the visa under s. 116(1)(g) of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 18 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [Ms A]. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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. 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.

5. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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). Regulation 2.43(1)(oa) provides the following

   (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 the following:

   (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))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he was granted the BVC on 24 December 2021. The primary decision record indicates that in April 2022 the applicant was convicted of the following offence: participate criminal group contribute criminal activity. The applicant was given a 24 month community correction order and a 2 year good behaviour bond. The applicant confirmed that information in his oral evidence to the Tribunal.

7. Having regard to the above evidence, the Tribunal finds that the applicant was a holder of a temporary (Bridging C) visa other than a Bridging E visa or a Special Category visa. The Tribunal finds that the applicant had been convicted of an offence. The Tribunal thus finds that there are grounds for cancelling the applicant’s visa under s. 116(1)(g) and r. 2.43(1)(oa).

   Consideration of discretion

8. 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

9. Information in the primary decision record indicates that the applicant travelled to Australia as a holder of a Student visa, had been living as an unlawful non-citizen for over two and a half years, made an application for a substantive visa which was refused and then made an application for the Partner visa.

10. In his declaration sworn on 13 October 2023 the applicant states that after he travelled to Australia on a Student visa, he wanted to pursue study but his family had financial issues and could not support him, he was struggling to pay the fees and failed classes, putting him in  a ‘bad mental state’ and he refers to his poor mental health as a result. He was too ashamed of his family and stayed in Australia after his visa ceased. The applicant repeated that in his oral evidence to the Tribunal.

11. It appears that the purpose of the applicant’s travel to Australia was to pursue study and he has not fulfilled that purpose. In the absence of any medical evidence to support the applicant’s claim that he was unable to study in Australia due to his poor mental health, the Tribunal does not accept that evidence.

12. The applicant had been granted a Bridging visa. That Bridging visa was granted to the applicant to enable him to await the outcome of the application for the Partner visa. The applicant is fulfilling that purpose.

13. The applicant refers to having a long term genuine relationship with his partner and the birth of their child. The applicant refers to the support he provides to his partner and child. The Tribunal has not made any assessment about the nature of that relationship but acknowledges that if the applicant does have a genuine relationship and a three month old child, the presence of his partner and child in Australia may constitute a compelling need for the applicant to remain in Australia. As noted below, however, whether a decision is made to cancel, or set aside the cancellation of the applicant’s Bridging C visa, the applicant will be able to remain in Australia to await the outcome of any substantive visa application. The applicant’s evidence to the Tribunal is that his Partner visa application is ongoing and he has been granted a Bridging visa E (BVE) with work rights.

    The extent of compliance with visa conditions

14. There is no evidence before the Tribunal of any non-compliance with visa conditions (other issues relating to his previous visas is discussed elsewhere).  

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

15. In his response to the NOICC the applicant refers to his de facto relationship with [Ms A] since August 2020 and his application for a Partner visa made in 2021. The applicant refers to his partner’s health, well-being and mental health. The applicant refers to the hardship of being separated from his partner and re-establishing his life in Vietnam. The applicant states that his partner is reliant on him for support and the adverse effect of the refusal decisions on his partner and her health. The applicant presented in his submission to the delegate a declaration from [Ms A] outlining the hardship she would experience if the applicant was to leave Australia.  

16. The Tribunal provided further evidence to the Tribunal. In his declaration of 13 October 2023 he also refers to his relationship with [Ms A] wince 2020 and the birth of their son in [Year]. The applicant presented a statement from his partner, as well as a psychological report. [Ms A] refers to hardship she would experience if the applicant was to leave Australia. [Ms A] also gave oral evidence to the Tribunal, stating that she and their son are reliant on the applicant for financial and other support and they are concerned that the cancellation of the BVC would impact on the processing of the Partner visa. [Ms A] refers to the financial and emotional support her husband provides, including during the time of her past health issues, and she states that she needs her husband. [Ms A] states that her husband had changed since the offence was committed, he is studying a trade and plans to contribute to the construction industry. The applicant told the Tribunal that he is the only person who is able to financially support his family and his wife and he wants to continue to remain in Australia and to work in Australia.

17. The Tribunal finds these submissions misguided. The visa in question here is the Bridging visa and not the Partner visa. A decision to cancel or set aside the cancellation of the BVC will have no effect on the processing and the outcome of the application for the Partner visa. The two processes are entirely independent. Whatever the outcome of the present review, the processing of the application for the Partner visa would continue and the applicant’s evidence to the Tribunal is that the Partner application is ongoing. That is, the cancellation of the present BVC will not result in the applicant having to leave Australia and being separated from his partner and child until his application for the Partner visa is finally determined.

18. In his submissions to the Tribunal of 13 and 20 October 2023 the applicant concedes that he would be eligible to apply for a Bridging E visa to await the outcome of the Partner visa application and remain in Australia and the applicant told the Tribunal that he had been granted a Bridging E visa with work and study rights.

19. The applicant told the Tribunal that he does not want to have a ‘bad record’ in relation to his Partner visa. However, the Tribunal is mindful that the Department is well aware of the cancellation of the BVC and even if the Tribunal were to set aside the cancellation, there is already a record of the cancellation of the BVC. It is also not apparent to the Tribunal how the ‘bad record’ relating to the cancellation would cause the applicant or anyone else hardship, noting that the applicant has committed other breaches that may be considered as a ‘bad record’, including non-compliance with the requirements of his student visa, stay as an unlawful non-citizen and his criminal conviction.

20. The applicant also suggested that his BVE was granted on the basis of the present review and if the BVC remains cancelled, he would have no visa and be an unlawful non-citizen and may have to leave Australia. However, there is no reason why the applicant could not apply for a BVE on the basis of his ongoing Partner visa application. The applicant said that he may not be given work rights but he has been able to establish a compelling need to work, and obtain work rights, in relation to the existing BVE, there is no apparent reason why it would be different in a future visa application.

21. In the circumstances, the Tribunal does not consider that hardship would be caused to the applicant by the cancellation of his visa.

    Circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

22. The ground for cancellation arises because the applicant has been convicted of offences and held a temporary visa.

23. In his response to the NOICC the applicant notes that he had originally been charged with additional offences but two of the charges were withdrawn and he had been convicted of only one offence for which he received the community corrections order. The applicant states that the sentence reflects his role within the criminal conduct and severity of his conduct. The applicant states that he has not committed a serious offence and did not directly participate in the criminal conduct. His role was that he transported the co-offender to the property.

24. In his declaration dated 1 July 2022 the applicant outlined the circumstances of the offending. The applicant states that a friend asked him to help drive him for payment and he did not know what he was getting himself into. In his declaration of 13 October 2023 the applicant also states that  a friend offered him some money to help transport something and the applicant states he did not think much of it. The applicant states that he felt he had to provide for his family and feared having no money due to Covid, so he agreed to help the friend for a fee. The applicant states that he was later charged for driving the truck that contained cannabis equipment for cultivation and was given a 24 months community corrections order.

25. The applicant states that it was a frightening experience as he had never been in trouble with the law again. He pleaded guilty and took responsibility for the offending. In his submission to the delegate the applicant also states that he is remorseful for his conduct and will make better decisions in the future and will be more cautious about his friends. The applicant stated that he had never been in trouble with the law previously and has no intention of committing offences again. The applicant states that he is not a risk to the community. He provided in his submissions to the delegate a copy of the letter of remorse he had prepared for the court. He also presented to the delegate a number of character references. The writers have expressed the view that the applicant is a person of good character and is in a genuine relationship with [Ms A]. 

26. The applicant states in his submission to the Tribunal that he has learned from his mistakes and understands the effect of offending and has worked hard to be a better person.

    Past and present behaviour of the visa holder towards the department

27. Nothing adverse is known about the applicant’s past and present behaviour toward the Department in relation to the present process. The applicant’s behaviour in relation to other matters is discussed elsewhere.

    Whether there would be consequential cancellations under s 140

28. There will be no consequential cancellation under s. 140 if the applicant’s visa is cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

29. If the applicant’s visa is cancelled, and if he does not have another visa, the applicant would be an unlawful non-citizen and would be subject to detention and removal from Australia. As noted above, the processing of any substantive visa application is independent of the present cancellation and the applicant would be permitted to remain in Australia to await the outcome of that process, although the applicant may be detained as an unlawful non-citizen if he is not granted another visa. If the applicant’s visa is cancelled, he can make an application for another visa in Australia but would be limited in the types of visas he can apply for onshore. The applicant may be subject to an exclusion period in relation to an offshore visa application.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

30. The applicant has a child born in [Year]. The Tribunal accepts that the applicant is a caregiver and provides financial support to the child. However, as the applicant is able to remain in Australia and continue that support whether or not his visa is cancelled (in light of his ongoing application for the Partner visa that has not been finally determined) the Tribunal does not consider that the best interests of his child would be adversely affected by the cancellation of the visa.

31. The applicant is not subject of a protection finding and he was previously found not to be owed Australia’s protection. The Tribunal also notes that the cancellation of the BVC will not result in the applicant having to depart Australia if he has an application for a substantive visa that has not been finally determined. On the evidence before it, the Tribunal does not consider that the cancellation of the visa would be in breach of Australia’s non-refoulement obligations.

32. In his response to the NOICC the applicant also refers to the ICCPR and the principle of family unity. As noted elsewhere, a decision on the applicant’s bridging visa does not equate to the applicant having to depart Australia and be separated from his partner and child.

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

33. The visa in question is not a permanent visa.

    Any other relevant matters

34. The primary decision record indicates that the applicant remained in Australia as an unlawful non-citizen for a period of close to three years, between March 2016 and October 2018.

35. The applicant provided a substantial amount of written evidence to the Tribunal shortly before the hearing, on 16 and 17 October 2023. The applicant presented evidence of his relationship with his partner (including a marriage certificate dated [June] 2023) and of the  birth of their child. the applicant refers to his qualification and business activities and he provided photographs of his business and working with his partner. For the purpose of this review, the Tribunal accepts that the applicant may be in a genuine relationship with his partner and that he has an Australian citizen child. the applicant presented some medical evidence relating to the child and a psychological report in relation to his partner completed in September 2022.  The report suggests that the applicant’s partner [Ms A] would suffer severe anxiety and depression if the applicant was to return to Vietnam and would wait some years before being granted a visa.

36. The applicant and his partner [Ms A] provided declarations to the Tribunal in their submission of 17 October 2023. They refer to their relationship and the hardship that they would experience if they are required to separate. The Tribunal finds these submissions misguided. The visa in question is a bridging visa. That visa does not, in itself, allow the applicant to remain in Australia but is designed to permit residence in Australia while an application for a substantive visa is processed. That is, it is the substantive visa that would allow the app to remain in Australia with his partner and child and, conversely, the cancellation of the Bridging C visa would not necessarily result in the applicant having to leave Australia if he has another application that has not been finally determined.

37. The Tribunal has had regard to the applicant’s immigration history and his compliance with immigration requirements in the past. As noted above, the applicant held a Student visa but did not study in Australia.

1. In oral evidence to the applicant told the Tribunal that his initial intention was to study but after coming to Australia, he realised that he did not have sufficient language and his financial situation was not good. In the Tribunal’s view, if the applicant was unable to study, for whatever reason, and was holding a Student visa, the applicant had the option of returning to his home country. The applicant told the Tribunal that he was ashamed to return to his parents who had big hopes for him. The Tribunal finds that evidence problematic because the applicant seems to suggest that his feeling of shame before his parents was of greater significance than his obligation to comply with the immigration laws.

2. The applicant told the Tribunal that his mental state was not good. There is no probative evidence before the Tribunal (such as for example medical reports) to indicate that the applicant was incapable of studying or incapable of regularising his affairs throughout the period of his student visa (when he was not studying) and the subsequent period of unlawful stay.

3. The applicant then made an application for a substantive visa. When asked about the basis for that application, the applicant told the Tribunal that he had friends in a similar situation. He states that he could not return to Vietnam as he could not face his family and he wanted to have a valid visa to stay in Australia, so he made the application. The Tribunal’s evidence suggests that he made the application not because he believed he was in need of protection but because he wanted to remain in Australia lawfully. The applicant suggested that he did not fully understand the purpose of that visa. The Tribunal does not accept that evidence as information about these visas is readily available and would have been available to the applicant when he completed the application form which required the applicant to set out the reasons for seeking protection.

4. The Tribunal has formed the view that the applicant had consistently shown a significant disregard for the Australian immigration laws.

5. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal found that there are grounds for cancelling the applicant’s visa as he held a temporary vias and had been convicted of an offence.

6. The Tribunal has found that the applicant had not fulfilled the purpose of his travel to Australia but he has a compelling need to remain in Australia. In that respect the Tribunal is of the view that the applicant will be able to remain in Australia, given his outstanding application for a substantive visa, whether or not his visa remains cancelled.

7. The Tribunal has formed the view that there would be no hardship to the applicant if his visa is cancelled, given that he would be able to seek another Bridging visa in association with the Partner visa application and remain in Australia with his family while his application for the substantive visa is being processed. Th Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellations.

8. The Tribunal has decided to give greatest weight to the applicant’s past dealings with the Department, noting his persistent disregard for the immigration laws in the past, and the circumstances in which the ground for cancellation arose, given that the applicant had been convicted of an offence resulting in the imposition of a two year community corrections order. In the Tribunal’s view, these matters weigh in favour of the cancellation.

9. In all the circumstances of this case, the Tribunal concludes that the visa should be cancelled

   DECISION

10. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Kira Raif
    Senior Member