2410040 (Migration) - [2024] ARTA 460

2410040 (Migration) [2024] ARTA 460 (15 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Home Affairs
Tribunal Number:  2410040

Tribunal:Senior Member M Ison
Place:Melbourne
Date: 15 November 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 15 November 2024 at 1:36pm
CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – criminal convictions, time served on remand and fines – Australian citizen partner also convicted on same charges – discretion to cancel visa – visa and study history and long residence – physical and mental health, drug use and suicide attempts, and care for partner and her elderly parents with multiple medical conditions – limited engagement with treating practitioners and programs – financial circumstances – circumstances of offences – submission that guilty pleas made to facilitate travel to home country to care for partner’s parents – mandatory legal consequences – no fear of harm – 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 an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 April 2024 to cancel the applicant’s Subclass 309 Partner (Provisional) (Class UF) visa under s 116(1)(g) of the Migration Act 1958 (the Act).
The Administrative Appeals Tribunal (AAT) was abolished, effective on 13 October 2024, when the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) repealed the Administrative Appeals Tribunal Act 1975 (Cth). Effective from 14 October 2024 the Administrative Review Tribunal (the Tribunal) was established by the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
Under the transitional provisions in the Transitional Act, applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Background
The applicant in this review is [applicant name] who is a [Age]-year-old Chinese national. [Applicant name] is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia [in] February 2009 as the holder of a Student (Subclass 573) visa.
Since then, the applicant has been granted the following visas:
·19 August 2011 – Bridging A (Subclass 010) visa;
·9 September 2011 – Student (Subclass 573) visa;
·27 August 2012 – Bridging A visa;
·3 October 2012 – Student (Subclass 573) visa;
·21 August 2013 – Bridging A visa;
·31 August 2013 – Student (Subclass 573) visa;
·14 March 2014 – Bridging A visa;
·2 May 2014 – Student (Subclass 573) visa;
·18 March 2015 – Bridging C (Subclass 030) visa;
·23 March 2015 – Student (Subclass 573) visa;
·27 August 2015 – Bridging A visa;
·21 December 2017 – Bridging A visa;
·23 July 2018 – Bridging B (Subclass 020) visa;
·5 November 2018 – Bridging B visa;
·23 May 2019 – Bridging B visa;
·21 November 2019 – Bridging B visa;
·20 January 2020 – Bridging B visa;
·23 November 2021 – Partner (Subclass 309) visa;
·31 May 2024 – Bridging E (Subclass 050) visa.
According to the evidence of the applicant he studied a Master of [Subject 1] at [University], completing all but two units.
On 30 October 2015 the applicant’s application for a sixth Student visa was refused by a delegate of the Minister.
The applicant appealed this decision to the Tribunal, differently constituted, which affirmed the decision under review on 22 November 2017.
The applicant appealed the Tribunal’s November 2017 decision to the Federal Circuit Court of Australia, as it then was, but that appeal was subsequently withdrawn by the applicant after he was granted the Partner (Subclass 309) visa that is the subject of this review.
On [Date] the applicant married [Mrs A], who is a [Age]-year-old Australian citizen.
On 18 December 2019 the applicant applied for the Partner (Subclass 309) visa that is the subject of this review. The applicant’s application for the Partner visa was sponsored by [Mrs A]. [Mrs A] first arrived in Australia from Hong Kong [in] March 2009 as the holder of a Sponsored Family Visitor (Subclass 679) visa, was granted a Partner (Migrant) (Subclass 100) visa on 14 December 2009 and became an Australian citizen [in] June 2015.
On 23 November 2021, as noted above, the applicant was granted the Partner (Subclass 309) visa.
On 22 April 2024 the applicant’s Partner visa was cancelled under s 116 of the Act.
On 31 May 2024 the applicant was granted a Bridging E visa, which he continues to hold at the time of this decision. The applicant’s Bridging E visa is subject to conditions 8207 (no studies or training in Australia), 8506 (change of address) and 8564 (not engage in criminal conduct) from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations).
The primary decision
The applicant provided the Tribunal with a copy of the primary decision that is under review.
The delegate cancelled the visa under s 116(1)(g) and reg 2.43(1)(oa) because the applicant was convicted of four criminal offences in the Magistrates’ Court of Victoria at [City] [in] January 2023. 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 Minister for Home Affairs is listed as the respondent in this review on the cover sheet to this decision. Section 348A(1) of the Act provides:
The Minister is taken to be a non‑participating party to a proceeding for review of a reviewable migration decision or a reviewable protection decision for the purposes of the ART Act.
Therefore, the Respondent did not appear before the Tribunal or otherwise participate in this review.
Pre-hearing submissions
The Tribunal received a 22-page submission from the representative dated 25 July 2024 with the following documents attached, as listed by the representative in the submission:
·[The applicant]’s AFP National Police Certificate dated [July] 2024
·[The applicant]’s personal statement dated 23 July 2024
·[The applicant]’s passport
·[The applicant]’s Driver Licence
·Clinical Psychologist [Mr B]’s letter dated 17 November 2017
·Payslip for employment at [Employer 1]
·[The applicant]’s [Work vehicle] Temporary Licence
·[The applicant]’s Certificate of Completion Behaviour Change Program
·[Mrs. A]’s personal statement dated 23 July 2024
·[Mrs. A]’s passport
·The Contract of Sale for the [Victorian] property
·The Ownership Statement for the [West Australian] property
·The Certificate of Title for the [South Australian] property
·Certificate IV in [Subject 2] from [College]
·[Mr. C]’s Subclass 155 Resident Return Visa grant notice
·[Mrs. D]’s Subclass 155 Resident Return Visa grant notice
·[Mrs. D]’s Medical Certificate on 30 August 2021
·[Mr. C]’s PET Examination Report on 6 June 2023
·[Mr. C]’s statement dated 22 July 2024
·[Mr. E]’s psychological report
·[Mr. E]’s resume
·[Mr. F]’s statement dated 23 July 2024
·[Mr. G]’s statement dated 22 July 2024.
The Tribunal hearing
The applicant appeared before the Tribunal on 1 August 2024 to give evidence and present arguments in-person. The Tribunal also received oral evidence from [Mrs A], in-person. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review by Ms Cheryl Wong of FCG Legal Pty Ltd. Ms Wong was assisted by Mr Mohammed Merhi and Mr Charles Ji, lawyers, from her office. Ms Wong and Mr Ji attended the Tribunal hearing in-person. Ms Wong is referred to as the representative in these reasons for decision.
The representative provided submissions before and after the Tribunal that were both of very high quality and of considerable assistance to the Tribunal in the conduct of this review.
Post-hearing submissions
The Tribunal received an eight-page submission from the representative dated 8 August 2024 with the following documents attached, as listed by the representative in the submission:
·Victoria Police – Brief of Evidence re [the applicant]
·Victoria Police – Brief of Evidence re [Mrs. A]
oFor the "Police Record of Interview dated 14 August 2022" mentioned in [Mr. E]’s psychologist report, please refer to the following:
§ EXHIBIT 21 – DVD Record of Interview & Transcript of [Mrs A]’s interview, starting from page 43 of the brief.
§ EXHIBIT 22 – DVD Record of Interview & Transcript of [the applicant]’s interview, starting from page 60 of the brief.
·[The applicant]’s CISP Final Progress Report
·[Mrs. A]’s CISP Community Referral Report
·[Mrs. A]’s statement dated 6 August 2024
·[The applicant]’s intake confirmation letter dated 5 August 2024
·[Rehabilitation provider 1] Welcome Letter
·Anglicare Victoria’s Information Booklet
·[Mr. C]’s Medical Certificate dated 3 August 2024
·[Dr. H]’s letter dated 2 August 2024.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicant and [Mrs A], to the oral and written submissions of the representative, to the information in the Tribunal’s file and the Department’s file provided to the Tribunal.
The Department’s file included a Notice of Intention to Consider Cancellation of a visa (NOICC) dated 5 February 2024 and the applicant’s response to the NOICC in the form of two emails sent on 12 and two emails sent on 20 February 2024 by the applicant.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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) and reg 2.43(1)(oa).
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
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 reg 2.43 of the Regulations.
In the present case, the ground in reg 2.43(1)(oa) is relevant which provides:
(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));
The applicant does not contest that a ground exists for the cancellation of his Partner (Subclass 309) visa.
The Tribunal finds that the applicant was convicted of the following criminal offences in Victoria [in] January 2023:
·Traffic methylamphetamine;
·Deal with property that is the suspected proceeds of crime;
·Unlicensed driving; and
·Causing damage to the police gaol.
The applicant was convicted of all four charges, sentenced to time served on remand for the trafficking offence being 18 days, fined AUD2,000 on the remaining charges and ordered to pay AUD131.50 in statutory costs.
For context only, [Mrs A] was also charged with multiple criminal offences arising from the same incident that led to the applicant’s criminal charges. [Mrs A] was convicted at the same time as the applicant of the criminal charges of:
·trafficking methylamphetamine;
·knowingly dealing with the proceeds of crime; and
·dealing with property suspected to be the proceeds of crime.
[Mrs A] was sentenced to 12 days imprisonment (being time served on remand) in relation to the trafficking offence, fined AUD5,000 and ordered to pay AUD131.50 in statutory costs in relation to the remaining offences.
For these reasons, the Tribunal is satisfied that the ground for cancellation of the applicant’s Partner (Subclass 309) visa in s 116(1)(g) and reg 2.43(1)(oa) exists. As that ground does not require mandatory cancellation of the applicant’s Partner (Subclass 309) visa 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) including the Procedural Instruction titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.
The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia
Purpose of the applicant’s stay in Australia
The applicant originally came to Australia as an international student to study [a subject] course at Master’s level and return home. The applicant’s original purpose in coming to Australia no longer exists.
The representative submitted in the submission dated 25 July 2024:
[The applicant] has been residing in Australia for the past 15 years since 2009. When [the applicant] first arrived in Australia, he was only [Age] years old, and today, he is [Age] years old. Throughout these 15 years, we are instructed that [the applicant] has established strong and meaningful ties to Australia. Furthermore, [the applicant] regards Australia as his home and wishes to remain here with his Australian wife and the community he has been part of for the past 15 years.
The applicant has remained in Australia as the holder of six substantive and 13 Bridging visas the purposes of which were initially for the applicant to continue studying and more recently, since December 2019, to pursue a lawful pathway through the Partner visa program for the applicant to stay with and support his wife, [Mrs A], in Australia.
The Tribunal finds that this aspect of this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this aspect of this consideration some weight.
Does the applicant have a compelling reason to remain in Australia?
The Tribunal acknowledges that the applicant has resided primarily in Australia since February 2009, albeit it on temporary visas until November 2021. The Tribunal accepts that the applicant has established connections to the Australian community, primarily but not only through his marriage to [Mrs A] in [Month, Year] and their ongoing relationship. The Tribunal further accepts the cancellation of the applicant’s Partner (Subclass 309) visa may cause him very considerable hardship, but this is addressed in the Tribunal’s consideration in these reasons of the degree of hardship cancellation may cause the applicant and his family members.
However, the applicant applied for the Partner (Subclass 309) visa offshore. It is a common experience of applicants for Partner (Subclass 309) visas and their sponsor’s that they are separated and live in separate countries – often for years – pending the final determination of the visa application process.
The applicant and [Mrs A] do not claim to have any children so the consideration of the best interests of any children do not provide a compelling reason for the applicant to remain in Australia.
The applicant does not claim that Australia owes him any obligation of protection or that he cannot return to China, so this also does not provide a compelling reason for the applicant to remain in Australia.
After the Tribunal hearing, the Tribunal obtained up to date Australian government movement records for the applicant, [Mrs A] and [Mrs A]’s parents being [Mr C] and [Mrs D], who are aged [Age] and [Age] respectively. Those movement records state that [Mr C] and [Mrs D] are permanent residents of Australia, holding Resident Return (Subclass 155) visas and returned to Australia [in] September 2024.
The evidence before the Tribunal is that [Mrs A] has significant mental health, physical health and addiction issues, including having attempted to commit suicide, and needs the applicant to remain in Australia to support and care for her and to assist her to care for and support her parents, who have recently returned to Australia.
The Tribunal accepts that the cancellation of the applicant’s Partner (Subclass 309) visa may cause [Mrs A] very considerable hardship and may even be a risk to her mental and physical health, but this is addressed in the Tribunal’s consideration in these reasons of the degree of hardship cancellation may cause the applicant and his family members.
The applicant in his written statement dated 23 July 2024 stated:
I need to regain my Subclass 309 visa due to my responsibilities as a husband and the urgent need to look after my parents-in-law in Australia, who are Australian permanent residents intending to return for better medical treatment. My father-in-law has been diagnosed with cancer and wishes to
receive further treatment, including chemotherapy, in Australia. My mother-in-law cannot take care of
herself, and we suspect she suffers from Alzheimer's disease and other health issues. My wife is their only child, and once they return to Australia, she will need my help in taking care of her parents, especially if my father-in-law undergoes chemotherapy treatment.
The evidence before the Tribunal, which it accepts, is that both [Mr C] and [Mrs D] have significant and extensive medical, and in [Mrs D]’s case, cognitive issues. [Mrs A]’s evidence is that this means she will need to dedicate a lot of time to caring for her parents and will not be able to do so alone. The representative submits that [Mrs A] “will desperately need” the support and presence of the applicant in Australia to be able to effectively care for her parents.
[Mrs A] in her oral evidence explained that her mother’s main medical issues at present are her cognitive decline including suspected Alzheimer’s disease as she is increasingly unable to care for herself and incontinence. [Mrs A]’s evidence was her father’s medical issues include previous heart failure and having five stents inserted into his heart in 2023 and presently include pleural effusion, stage three lungcancer for which he needs surgery and chemotherapy and difficulty breathing with one side of his nose completely blocked.

[Mrs A]’s evidence is supported by a certified translation into English of medical certificates for [Mrs D] dated 30 August 2021 and for [Mr C] dated 3 August 2024 and a PET examination report for [Mr C] dated 6 June 2023. The most recent medical report for [Mr C] lists his current medical conditions as:
1. Arrhythmia, atrial fibrillation 2. Coronary atherosclerotic heart disease, status after coronary stent implantation 3. Cardiac insufficiency grade II 4. Essential hypertension, Grade 3 Hypertension 5. Old cerebral infarction 6. Lung malignant tumor (sic)
[Mrs A]’s evidence is further supported by a statement from her father with a certified translation into English dated 22 July 2024. In that statement [Mr C] states:
At present, I dare not undergo chemotherapy in China, so I can only wait until I receive it in Australia. My body may not be able to withstand after completing chemotherapy, and I may not be able to take care of myself at that time. If only my daughter takes care of the two of us, she won't be able to handle it both physically and mentally. We're too old to help them, but we're making things worse for them. My son-in-law is a good boy. He never looks down on my spouse, cleaning her body and even defecation without any complaints. My daughter has such a good partner for the rest of her life, and even if we die, we have no regrets. We are not asking selfishly, but our future life in Australia is really inseparable from [the applicant]'s care. Even if the government appoints others to take care of us, we are unwilling to let others to take care of us, and no one can take care of us so considerately.
While the Tribunal accepts that the above represents [Mr C]’s opinion, the Tribunal does not accept that the care of [Mr C] and his wife [Mrs D] in Australia is inseparable from the applicant being in Australia.
[Mrs A] stated in her statement dated 23 July 2024 that her parents have been in China before the emergence of the COVID-19 global pandemic in February – March 2020 and are receiving medical treatment in China, but at that time she planned for them to return to Australia “because we believe the medical conditions in Australia are better”. This indicates to the Tribunal that until [Mrs A]’s parents recent return to Australia they had been in China for up to five years and have been receiving medical treatment in China, supported by [Mrs A] regularly returning to China including on six occasions in 2023 and 2024, although the Tribunal accepts [Mr C]’s health has deteriorated recently.
As is set out in detail in the Tribunal’s consideration in these reasons of the hardship that cancellation of the applicant’s Partner (Subclass 309) visa may cause, the Tribunal has great concern that neither the applicant and particularly [Mrs A] have taken genuine steps – even when there were opportunities for them both to do so – to meaningfully participate in treatment for their addiction issues or their mental health issues, at least until after the Tribunal hearing. This causes the Tribunal concern that the narrative presented to the Tribunal of the extent of [Mrs A]’s present dependence on the applicant, which the Tribunal accepts is genuine, is caused in large part by in particular [Mrs A]’s failure to acknowledge or accept her addiction to methylamphetamine or to seek treatment for her addiction or for her mental health issues until very late in this review process.
In addition, there is no information before the Tribunal about the financial circumstances, health insurance circumstances or eligibility for services from the government, hospital, community or welfare services of [Mrs A]’s parents. This is not a criticism of either the submissions or evidence presented to the Tribunal as it merely reflects the circumstance of [Mrs A]’s parents and their recent return to Australia after a long period living in China. However, the Tribunal is not prepared to speculate about the prospective treatment – such as chemotherapy for [Mr C] – or prospective care needs of [Mrs A]’s parents either before or after medical treatment and potentially surgery in Australia, and what support [Mrs A] may be able to receive in Australia to assist her to care for her parents, even if their personal preference is to be cared for by [Mrs A] and the applicant only.
Each of the above circumstances is relevant in the present context to the Tribunal’s assessment of whether the applicant’s need to remain in Australia to care for and support [Mrs A] and her parents, is compelling.
The Tribunal has considerable compassion for the circumstances of the applicant and [Mrs A], who has her own health care needs. The Tribunal respects the joint desire of the applicant and [Mrs A] to care for and support the health and care needs of [Mrs A]’s parents in Australia, evidenced by [Mrs A] cancelling her own surgery scheduled for 9 August 2024 in China, to prioritise caring for her father who was then in China.
However, in the applicant’s circumstances set out above, which include having applied for the Partner (Subclass 309) visa offshore, having no children with [Mrs A] or anyone else and not claiming to be owed protection by Australia, the Tribunal finds that the applicant does not have a compelling reason to remain in Australia.
The Tribunal finds that this aspect of this consideration weighs in favour of the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.
Overall finding
The Tribunal finds that overall, this consideration weighs in support of the cancellation of the applicant’s visa, but in the applicant’s circumstances of the mixed findings by the Tribunal, the Tribunal gives this consideration only some weight.
The extent of the applicant’s compliance with their visa conditions
The representative submitted in the submission dated 25 July 2024:
… due to the severe depression, anxiety, and stress he suffered which was evidenced in the letter of [Mr. B], [the applicant] accepts that he failed to achieve satisfactory course progress in the past, which may amount to a breach of condition 8202 attached to his previous Student visa.
The Tribunal notes that several conditions, including condition 8202 (maintain enrolment in a full-time course of study) from Schedule 8 to the Regulations, were attached to four of the five Student visa held by the applicant. The first Student visa granted to the applicant in December 2008 had no conditions attached.
The applicant in his statement dated 23 July 2024 stated:
To the best of my recollection and apart from failing to complete my bachelor’s degree at [University] due to my mental health issues, I have complied with all the conditions attached to these visas, ensuring that I adhered to requirements on work limitations and financial obligations. I confirm that I have always been truthful with the Department, providing accurate and honest information regarding my circumstances and actions.
The evidence of the applicant and submissions of the representative are supported by the report of [Mr B], clinical psychologist, dated 17 November 2017. [Mr B] found, after conducting four counselling sessions with the applicant in 2013, the applicant scored in the extremely severe range for depression and in the mild range for anxiety and stress. When [Mr B] conducted a review session with the applicant on 16 November 2017 the applicant’s depression, anxiety and stress had all normalised.
Balanced against this, the Tribunal notes the applicant’s fourth Student visa was granted in May 2014 and his fifth Student visa was granted in March 2015 after the August and September 2013 sessions with [Mr B]. The applicant’s application for a sixth Student visa was refused in October 2015. The applicant in his oral evidence explained to the Tribunal the circumstances of his later study when his father became ill and was hospitalised leading to a late enrolment causing the applicant to miss a semester of his Master’s studies which in turn forced him to enrol in another course to maintain his enrolment and use his tuition fees he would have used for his Master’s course.
There is no information before the Tribunal to indicate that these events led to the cancellation of any of the applicant’s Student visas.
There is no information before the Tribunal to indicate that the applicant has ever been found by the Department or any other authority to have breached a condition attached to the four Student visas that had conditions attached, or for that matter any of the 13 Bridging A, B, C and E visas, that he has held. The applicant’s Bridging visas each had condition 8105 (work limitation) attached from Schedule 8 to the Regulations.
While the applicant’s honesty and openness about his failure to complete his studies is commendable and adds weight to his evidence overall, the fact that the applicant has not been formally found by relevant authorities to have breached condition 8202 attached to his second, third, fourth and fifth Student visas causes the Tribunal to not make an adverse finding or draw any adverse inferences against the applicant in relation to this consideration.
The applicant’s Partner (Subclass 309) visa had no conditions attached.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s Partner (Subclass 309) visa and the Tribunal gives this consideration some weight.
The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members
The applicant’s evidence is, in summary, that cancellation of his visa will cause him, [Mrs A], [Mrs A]’s parents and his own parents’ great hardship.
The applicant in his statement dated 23 July 2024 stated:
Being compelled to leave Australia will also adversely affect my mental health, as it uproots me from the place I have been living for the past 15 years and where I have deep connections.
Over the years, I have established strong and meaningful ties to Australia that are critical to my personal and professional life. I have held several formal positions in the past unlike the [casual jobs] I have been doing. From March 2023 to May 2023, I worked as [an occupation 1] at [Employer 1]. Prior to that, from December 2022 to February 2023, I worked as [an occupation 2] at [Employer 2] but left because the compensation was not reasonable for the work performed. From August 2021 to October 2021, I was [an occupation 3] at [Employer 3] but had to leave this job due to moving from [Suburb 1] to [Suburb 2]. Additionally, from May 2014 to December 2019, I worked as [an occupation 4], but my work was significantly impacted by the COVID pandemic.
I have formed deep friendships with several Australian citizens and permanent residents. These relationships have provided me with invaluable emotional support and have integrated me into the local culture and community.
I have participated in social gatherings, community events, and volunteer activities, all of which have solidified my sense of belonging in Australia. My contributions to the community include volunteering at [Employer 1] [workplace], volunteering at [Organisation 1] as a [volunteer task], donating [products 1] to the community during COVID, and donating [products 2] to [Employer 1].
I am already [Age] years old and have been living in Australia since the age of [Age]. It is not possible for me to restart my life in China. My wife is an Australian citizen, and both her parents are Australian permanent residents who wish to return to Australia for better medical treatments. It is not possible for her to live in China with me. My family and I need to have my Subclass 309 visa reinstated so I can support us in Australia.
The Tribunal discussed this with the applicant during the Tribunal hearing. The applicant told the Tribunal if he had to depart Australia, he would return to China to live with his parents, but he was not sure if his wife, [Mrs A], would accompany him as [Mrs A] then planned to bring her parents to Australia. The applicant told the Tribunal he was not sure how his relationship with [Mrs A] would work if he is in China and [Mrs A] remains in Australia with her parents.
The applicant provided statements of support from [Mr G], the owner of [Employer 1] in [Suburb 3] that is an approved provider of [service], dated 23 July 2024 and from [Mr H], a friend of the applicant’s, dated 22 July 2024. [Mr G] attests to the applicant’s and [Mrs A]’s former employment at [Employer 1] and the valuable contribution they both have made to the lives of [people] there through their voluntary work. [Mr G] attest to the applicant’s remorse for his criminal offending, his character, the genuineness of his marriage to [Mrs A] and the hardship the applicant and [Mrs A] would experience if the applicant’s Partner (Subclass 309) visa is cancelled. [Mr H] attests to the applicant’s character, remorse for his criminal offending and commitment to his marriage as a “family man” describing the applicant’s criminal offending as a “one-off event”. The Tribunal accepts that both [Mr G] and [Mr H] consider the applicant to be of good character, to be remorseful for his criminal offending and overall to be a positive member of the community.
The applicant also provided evidence of the grant of Resident Return (Subclass 155) visas to [Mrs A]’s parents, granting them permanent residency in Australia. The Tribunal accepts this evidence.
The applicant also provided a report written by [Mr E], consultant psychologist dated 19 July 2024 about both the applicant and his wife, [Mrs A]. [Mr E] found the applicant:
·… has suffered a range of psychological conditions for a number of years. These include a severe and recurring Depressive Disorder, characterised by prior episodes of self-harm and suicidal ideation, an Anxiety Disorder and a Substance Use Disorder, which is now in Remission.
·Is depressed;
·Has expressed appropriate remorse for his criminal offending;
·Can remain abstinent from drug use, at the time being in remission;
·Is a moderate to low risk of reoffending;
·Is motivated to remain drug free by his desire to support his wife, his fear of being deported from Australia and his desire to maintain a pro-social life in Australia; and
·Should undertake a course of treatment involving cognitive behaviour therapy and supportive and motivational psychotherapy.
[Mr E] found that [Mrs A]:
·Had ceased using non-prescription drugs;
·Suffers a severe and recurring depressive disorder characterised by attempted suicides with hospitalisation, episodes of self-harm and despair regarding the future;
·Has a depressive disorder that has been compounded by the poor state of health of her parents and by the uncertainty over the applicant’s future in Australia;
·Has a strong psychological reliance on the applicant;
·Has expressed appropriate remorse for her criminal offending;
·Is trending toward her likelihood of reoffending becoming low;
·Requires ongoing psychological care, a review of her medication and a review by a psychiatrist given her history of suicide attempts;
·Has had little in the way of follow-up treatment for her depression; and
·Should undertake a course of treatment involving cognitive behaviour therapy and supportive and motivational psychotherapy.
[Mr E] also reported that [Mrs A] told him of two recent suicide attempts as follows (emphasis in the original):
[Ms A] stated that she has been severely depressed for many years and attendant to this has from time-to-time experienced suicidal ideation, in addition to attempting suicide on two occasions in the past 12 months. This related to overdosing on medication.
…
[Ms A] stated that she has ceased using drugs. She acknowledged at times that she struggles with her addiction but is determined to remain drug free. She has had no treatment for her mental state in China but evidently has considered treatment in Australia but added that she does not want to burden the Australian Government.
[Ms A] reported that she has previously been prescribed psychotropic medication, which was prescribed at the [Hospital 1]. She however ceased taking medication because of adverse side effects adding “it made me feel sleepy and dizzy”. … To further history taking [Ms A] stated that she had been admitted to the [Hospital 1] following a suicide attempt. She attended on one occasion and was treated in casualty in 2023. On the second occasion in 2024, she was admitted for two to three days but had no follow-up treatment. [Ms A] added “the only treatment I have is my husband”, speaking to the strong emotional reliance she has upon him.
[Mrs A] confirmed she had attempted suicide twice in her oral evidence to the Tribunal. The applicant told the Tribunal he was concerned [Mrs A] may again attempt to commit suicide if his Partner (Subclass 309) visa is cancelled and he has to depart Australia, leaving [Mrs A] in Australia without his physical or emotional support.
[Mr E] expressed the following opinion in his report about the hardship the applicant and [Mrs A] would suffer if the applicant’s Partner (Subclass 309) visa is cancelled (errors in the original):
It is clear that both parties will suffer considerable psychological harm, if they are required to return to China, because [the applicant]’s sub-class 309 Visa remains cancelled. [Ms A] is highly dependent upon him for emotional and logistic support and it is clear that he is very supportive of her and requires her emotional support as well in terms of his ongoing mood disorder. It is unlikely that either party would receive the type of professional assistance I am advocating if they were to return to China. In addition, they would struggle in terms of employment and readjusting to a divergent culture. Both parties have positive aspirations for a future life in Australia, which would be significantly dislocated if [the applicant] was required to return to China because his sub-class 309 Visa remains cancelled.
The Tribunal accepts the opinion of [Mr E] that the cancellation of the applicant’s Partner (Subclass 309) visa will cause the applicant and [Mrs A] “considerable psychological harm”.
The weight the Tribunal gives to [Mr E]’s opinion is reduced for two reasons. Firstly, because of the history of both the applicant and [Mrs A] failing to take up opportunities to be treated for their drug addictions or for their respective mental health issues, at least until after the Tribunal hearing. Secondly, because of [Mrs A]’s evidence, outlined below, of recent methylamphetamine use and her denial of being addicted to methylamphetamine.
The applicant provided the Tribunal with copies of the Court Integrated Services Program (known is CISP) reports for both the applicant and [Mrs A]. The Final Progress Report for the applicant dated 2 November 2022 states:
During the CISP assessment, [the applicant] outlined that he commenced engaging in methamphetamine use approximately two years ago, after being introduced and encouraged by friends. … [The applicant] began smoking methamphetamine daily and was smoking two points per day prior to his remand. … Due to this information, he was referred for a comprehensive drug and alcohol assessment through [Organisation 2] in [Suburb 1].
…
[Ms I], Senior Forensic AOD Clinician completed an assessment with [the applicant], where she recognised significant risks for relapse, including [the applicant]’s wife and co-accused as a perpetuating factor in previous use. [Ms I] recommended a complex episode of counselling (15 sessions) to be conducted weekly on site at [Organisation 2]. [The applicant] has not undertaken the opportunity to engage in appropriate intervention provided by [Ms I], regularly not attending appointments and advising that he had not received reminder messages or had other priorities that appeared more important than his treatment. [The applicant] was aware of his weekly scheduled appointment, every Monday at 9:30am and was reminded by both [Organisation 2] and CISP on a weekly basis.
[The applicant] engaged in two appointments and was unable to outline the ongoing risk factors present for relapse. [Ms I] advised that she believed that [the applicant] is in the pre contemplative stage of change and encouraged [the applicant] to engage in urinalysis screens if he was to not engage in any AOD treatment to assist with his recovery. [The applicant] did not engage in three appointments and because of his lack of engagement, [the applicant] has now been formally exited from drug and alcohol treatment.
…
[The applicant] has highlighted that having limited employment options due to COVID-19, remaining at home, and driving his wife to and from her employment had a negative impact on his mental health, leading to “feeling emotional and always fighting”. [The applicant] indicated that he had been experiencing marital concerns for some time and that he and his wife “argue a lot” and he has had difficulties with communication. [The applicant] discussed that he would like to explore mental health support through his General Practitioner at [Medical Centre] to assist with managing his emotions and improve his communication with his wife.
[The applicant] outlined that he was experiencing suicidal thoughts upon remand, and engaged in self harming behaviour, including scratching his wrists to assist with managing his anxiety and fear. He has now advised that he is not experiencing any self-harming thoughts or behaviours and believed that it was contextual to his first remand, withdrawal from methamphetamine use and worry for his wife and his own wellbeing.
Due to the above, an appointment was arranged with [the applicant]’s regular General Practitioner at [Medical Centre], which he attended and completed a mental health care plan to be referred back to his previous psychologist, [Mr B]. [The applicant] was encouraged to arrange appointments with [Mr B], however he did not. Regular conversations were held regarding his motivation and intention to engage in support however [the applicant] stated that this psychologist does not bulk bill and he would not like to proceed with the referral.
It is important to note that [the applicant] continues to experience similar concerns that he raised during his assessment, including assisting his wife regularly with her employment, remaining at home preparing their property for rent and continuing to raise some difficulties in their relationship. At this time, it appears [the applicant] continues to remain in the pre contemplative stage of change to address his relationship concerns, his mental health concerns and addressing his overall wellbeing.

The report for [Mrs A] dated 24 August 2022 stated (emphasis in the original):
[Ms A] outlined a history of methamphetamine use in the last three years, engaging in occasional use until the COVID-19 pandemic. [Ms A] identified her use increasing over the last year due to “nothing to do but stay at home”. [Ms A] reported that she was smoking up to 1 gram per day, however commented that she would “waste a lot and throw away if it tastes bitter” and would generally dispose of more than 1 gram daily.
[Ms A] stated that she would generally smoke at home with her husband, however he uses methamphetamine less frequently than her. She discussed that since being in custody, she has not experienced any withdrawal related symptoms, and her physical health has improved dramatically, allowing her to recognise a causal link between her methamphetamine use and health concerns. [Ms A] stated that her goal is to remain substance free post release, and she feels that she is able to ensure she does not return to use independently, without the support of treatment and support through a drug and alcohol agency.
…
[Ms A] discussed that she has experienced ongoing [body part] concerns since having weight loss surgery a number of years ago. Since her commencement of methamphetamine use, she has raised concerns regarding ongoing nausea, vomiting, and vomiting blood. [Ms A] reported that she is under the management of her General Practitioner, [Dr J] at [Medical Clinic]… .
…
[Ms A] identified no requirement to engage in support... [but] CISP has arranged the following assessment appointment for ongoing management of her medical conditions with [Dr J] at 10:00am on Friday 26 August, at [Medical Clinic]
[Mrs A] told the Tribunal she does not have an addiction to methylamphetamine. [Mrs A] stated it is not like she cannot do without it. [Mrs A] told the Tribunal she was using methylamphetamine as self-medication for her mood issues, sleep issues and because she has other health issues including blood pressure, diabetes and [surgery]. [Mrs A] intended to travel to China to have further [surgery] so she could continue to care for her parents who were then in China, because she told the Tribunal there would be a long recuperation period after her surgery.
[Mrs A] told the Tribunal she stopped using methylamphetamine after her release from prison and now uses alcohol to regulate her mood. Upon further questioning by the Tribunal, [Mrs A] told the Tribunal she last used methylamphetamine [in] July 2024, the day after she returned from China to Australia so she could attend the 1 August 2024 Tribunal hearing.
[Mrs A] told the Tribunal that she only used methylamphetamine on that day and hasn’t used methylamphetamine in quite a while because it causes her to vomit, her stomach cannot adjust to it and [Mrs A] realised it does not assist her blood pressure.
The Tribunal found [Mrs A]’s evidence in relation to her lack of methylamphetamine addiction and isolated recent methylamphetamine use to be unconvincing. It is of great concern to the Tribunal that [Mrs A] has engaged in recent methylamphetamine use.
During the Tribunal hearing [Mrs A] vomited blood. While the Tribunal expressed concern for [Mrs A]’s welfare and offered an adjournment, which she declined, it is of further concern to the Tribunal that [Mrs A] had previously attributed this occurrence to methylamphetamine use as documented in the CISP report quoted above.
The Tribunal has further concerns that [Mrs A]’s methylamphetamine use is not isolated or infrequent as [Mrs A] claims. The Tribunal’s concerns arose in the context of [Mrs A] not acknowledging her methylamphetamine addiction and not having received any treatment at the time of the Tribunal hearing for that addiction, despite her evidence that her use of methylamphetamine dates back to 2019 and that she was using, at times, five times the amount of methylamphetamine that the applicant self-reported using each day – at a cost of up to AUD1,000 a day based on Victoria police estimates (from 2022).
[Mr E]’s findings in relation to both [Mrs A] and the applicant were significantly based on their respective lack of methylamphetamine use since their respective releases from prison and the protective factor of them both being motivated to ensure each other remains drug and crime free. The weight the Tribunal can give [Mr E]’s opinions about the applicant and [Mrs A] is undermined by [Mrs A]’s evidence of recent methylamphetamine use and the Tribunal’s concerns this use is not isolated as [Mrs A] claimed.
The applicant provided the Tribunal with a letter from [Dr H] of [Clinic] dated 2 August 2024 referring [Mrs A] to [Mr K], psychologist for management of depression and anxiety under a GP mental health care plan, for up to six counselling sessions. A copy of [Mrs A]’s GP mental health care plan was not provided to the Tribunal. The Tribunal has not been provided with any updated information since the Tribunal hearing to indicate whether [Mrs A] has acted on the referral.
The applicant provided evidence that he completed the intake process with the Substance Use Recovery Intake Team of an alcohol and other drug treatment provider, known as [Rehabilitation provider 1] by letter from [Rehabilitation provider 1] dated 5 August 2024. The Tribunal accepts this evidence.
In the submission dated 8 August 2024 the representative submitted (emphasis in the original):
We are instructed that [the applicant] first engaged [Organisation 3], an organization delivering health and support services, all of which are free of charge. After hearing [the applicant]’s circumstances, [Organisation 3] referred him to [Rehabilitation provider 1], a comprehensive provider of alcohol and drug services in Melbourne's eastern and southeastern suburbs, for a comprehensive Alcohol and Drug assessment and potentially subsequent Alcohol and Drug counselling.
…
Apart from engaging [Rehabilitation provider 1] and [Organisation 4], we are instructed that [the applicant] registered on [a website] that offers online Cognitive Behavioral Therapy (CBT) to help with anxiety and depression. We are instructed that this website offers interactive self-help courses, and [the applicant] has started studying the first module and intends to learn more.
We are instructed that [the applicant] also contacted [a mental health service provider] specializing in cognitive behavioural therapy, which has branches in [Suburb 4] and [Suburb 5]. [The applicant] instructs that he contacted the [Suburb 4] branch and was informed that there will be no available spots for another two weeks.
This evidence was provided to demonstrate that the applicant is addressing his addiction and mental health issues in a manner that he has not previously, and this should weigh against the cancellation of his visa when considering his overall circumstances. The Tribunal has chosen to address this evidence under this hardship consideration, on the basis if the applicant’s visa is cancelled, he would not be able to continue or complete the treatments he has recently commenced.
The applicant’s oral and written evidence is that he was referred by his general practitioner, [Dr J] at [Medical Clinic], for psychological counselling to assist with his recovery from his drug addiction in September 2021. The applicant’s evidence also is he attended two counselling sessions with [Organisation 2], a national addiction treatment, training and research centre, in October 2021. When the Tribunal discussed this with the applicant, he could not recall why he attended for only two sessions. The applicant also told the Tribunal he could not remember what actions he had taken in relation to [Mr E]’s recommended treatment for him at the time of the Tribunal hearing. The Tribunal found the applicant’s evidence in regard to his commitment to seeking treatment for his drug addiction and mental health issues to be unconvincing.

100. The Tribunal does not find that the cancellation of the applicant’s visa would cause him additional hardship in not being able to continue his mental health and addiction treatment he has commenced in Australia. The Tribunal is not convinced the applicant is genuinely committed to either treatment. In the case of the applicant’s treatment for addiction, the Tribunal was not convinced from the applicant’s oral evidence that he even genuinely accepts he needs treatment.
101. This also causes the Tribunal to reduce the weight it gives to the psychological hardship the Tribunal accepts cancellation of the applicant’s Partner (Subclass 309) visa will cause him.
102. The Tribunal finds that the cancellation of the applicant’s Partner (Subclass 309) visa would cause both the applicant and [Mrs A] considerable psychological hardship, as found by [Mr E].
103. The Tribunal finds that given [Mrs A]’s dependence on the applicant and the applicant’s desire to remain in Australia to support [Mrs A], particularly now that her parents have returned to Australia, the cancellation of the applicant’s Partner (Subclass 309) visa would cause both the applicant and [Mrs A] great emotional and given [Mrs A]’s concerns about her parents’ care needs, for [Mrs A] social hardship.
104. The Tribunal finds that the cancellation of the applicant’s Partner (Subclass 309) visa would cause him great social hardship if it resulted in the applicant departing Australia and returning to China, as he would have to reestablish a life in China after residing in Australia for the past 15 years, which is the significant majority of his adult life.
105. The Tribunal finds that given the concerns of [Mr C] about the capacity of his daughter to care for him and his wife, [Mrs D], in Australia without the applicant’s support the cancellation of the applicant’s Partner (Subclass 309) visa would cause [Mr C] great emotional hardship.
106. The Tribunal is unable to make a similar finding about [Mrs D] because of the oral evidence about her cognitive decline and the lack of documentary evidence before the Tribunal assessing the extent or progression of that cognitive decline. In those circumstances, the Tribunal accepts that the cancellation of the applicant’s Partner (Subclass 309) visa may cause [Mrs D] some emotional hardship.
107. The applicant and [Mrs A] described their recent and present employment circumstances to the Tribunal, the financial support they receive from the applicant’s parents in China and the pressure they are under to maintain mortgage repayments on their home in the eastern suburbs of Melbourne and an investment property in Western Australia. According to the consistent oral evidence of the applicant and [Mrs A], the combined mortgages on the two properties are very significant and their financial circumstances is a significant stressor on them both and on their relationship. The Tribunal accepts this evidence.
108. The Tribunal was also provided with evidence, which it accepts, of [Mrs A] having a half ownership interest in a property in South Australia. [Mrs A] told the Tribunal her ex-husband lives in the property so it cannot be sold to assist their financial circumstances, which the Tribunal accepts.
109. The Tribunal finds that the cancellation of the applicant’s Partner (Subclass 309) visa would cause the applicant and [Mrs A] significant financial hardship.
110. The applicant told the Tribunal if he had to return to China his parents would be happy to be reunited with him, but they would be upset because they supported the applicant to obtain an education in Australia which he didn’t complete and instead got married. The applicant told the Tribunal a return to China for him would mean separating from his wife. The applicant told the Tribunal he attended boarding school from age five in China and if he returned to China now his parents, who have been financially supporting him in Australia, would feel an obligation to continue to support him. The Tribunal accepts this evidence.
111. The Tribunal finds that the cancellation of the applicant’s Partner (Subclass 309) visa would cause the applicant’s parents considerable emotional hardship.
112. The Tribunal finds that this consideration overall weighs against the cancellation of the applicant’s Partner (Subclass 309) visa and in the applicant’s specific circumstances the Tribunal gives this consideration significant weight.
The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.
113. The applicant and [Mrs A] in their written statements and oral evidence to the Tribunal explained their joint criminal offending in a consistent manner, which the Tribunal summarises as follows:
·In or about July 2022 [Mrs A] noticed a friend of hers in [City] had a trailer they were not using;
·[Mrs A] contacted the friend who stated they were happy to give the trailer to [Mrs A];
·On [Day 1] August 2022 the applicant and [Mrs A] had a “heated” argument after which [Mrs A] stated she would go to [City] herself to pick up the trailer;
·The applicant was concerned for [Mrs A]’s safety as she had never driven with a trailer and he decided to drive her to [City] on [Day 2] August 2022, even though the applicant did not have a driver’s licence at the time;
·[Mrs A] contacted her friend’s roommate to arrange for that person to install a towball on [Mrs A]’s car but the roommate was not there when they arrived;
·While they were waiting for the roommate, [Mrs A]’s friend asked her to deliver drugs to another person, which [Mrs A] agreed to and the applicant did not intervene;
·The applicant did not know there would be drugs involved before arriving at the house of [Mrs A]’s friend;
·While waiting for the roommate of [Mrs A]’s friend, [Mrs A] and the applicant decided to go fruit picking and were intercepted by the police after leaving the friend’s property;
·The police found methylamphetamine, cash and drug paraphernalia in their car and they were both charged with multiple criminal offences;
·The applicant removed a zipper from his clothing and scratched it against the wall of the cell where he was being held at the police station and then scratched his own wrist with the zipper before police intervened;
·The applicant and [Mrs A] were remanded in custody and not granted bail until 18 and 12 days later, respectively;
·The criminal law lawyers representing the applicant and [Mrs A] advised them if they contested the criminal charges filed against them it could take up to a year for their matters to be finalised, during which time they would not be allowed to depart Australia;
·[Mrs A]’s parents were very ill and receiving medical treatment in China and needed the support of [Mrs A] in case their medical conditions deteriorated;
·The applicant and [Mrs A] both pleaded guilty to some of the matters they were charged with, resolving all of their respective charges, [in] January 2023; and
·The applicant and [Mrs A] travelled back to China [in] May 2023 after [Mrs A]’s father, [Mr C], had a heart operation with five stents inserted on 15 May 2023.

114. The Australian government movement records for the applicant and [Mrs A] show that [Mrs A] returned to China on [Day 1] May 2023 and the applicant followed on [Day 2] May 2023.
115. In the submission dated 25 July 2024 the representative submits there were extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing. The Tribunal summarises these submissions as follows:
·The applicant and [Mrs A] were emotional after their argument and the applicant’s decision to drive without a licence was influenced by his emotional impulse to amend their relationship and protected [Mrs A];
·The applicant had very limited involvement in the offences as he did not communicate with [Mrs A]’s friend and no methylamphetamine was found on the applicant; and
·The applicant scratched the zipper on the police cell wall to sharpen it so he could self-harm, reflecting he was in a highly stressed state over which he did not have control.

116. The Tribunal makes no adverse finding and draws no adverse inferences against the applicant in relation to the damage to the police cell and his subsequent self-harming.
117. The Tribunal does not accept there were any extenuating circumstances beyond the applicant’s control that have led to the ground for the cancellation of his Partner (Subclass 309) visa arising in relation to the drug related criminal offences the applicant was convicted of.
118. The police brief of evidence provided by the applicant to the Tribunal after the Tribunal hearing reveals the circumstances of the applicant’s drug related criminal offending were:
·On [Day 2] August 2022 police observed the applicant and [Mrs A] at a property in [City];
·The occupants of the property were known to police for drug trafficking and other crimes and some of the occupants were on bail for drug related matters;
·The police first observed the property at 10.40am and observed the applicant park in the drive-way at 11.35am;
·The applicant and [Mrs A] drove away from the property three hours later at 2.35pm with the police observing the applicant as the driver;
·The police searched the police database and found the applicant did not have a licence to drive. The Tribunal notes according to submissions from the representative, which the Tribunal accepts, the applicant’s licence to drive a motor vehicle had been suspended for six months [in] January 2022 when the applicant was found to be driving with a prescribed concentration of drugs in his blood. This offence was dealt with by way of an infringement notice;
·The police intercepted the applicant and [Mrs A] a short time after they left the property;
·[Mrs A] told the police they had driven from Adelaide that morning, were travelling to Melbourne and she used drugs;
·[Mrs A] told the police that there was approximately 10 grams of “ice” (methylamphetamine) in the car;
·The police conducted a search of the applicant, [Mrs A] and the car;
·The police found various quantities of methylamphetamine in the following locations in the car:
oFour snap lock plastic bags in a red [purse] on the front passenger seat;
oThree snap lock plastic bags in a yellow mint tin on the front passenger seat;
oOne snap lock plastic bag in a red [clutch purse] located in the centre console;
oOne snap lock plastic bag in a black [bag] in the glovebox;
oOne snap lock plastic bag in a [glasses case], with police noting the applicant was wearing [glasses] at the time of arrest, located in the driver’s side door; and
oTwo snap lock plastic bags in a pink money tin located on the rear passenger side seat.

119. The police also found AUD140 on the applicant, AUD6,750 in a black handbag with silver studs in the rear passenger footwell, three [mobile phones] and two used glass methylamphetamine smoking pipes and a butane torch in the [glasses] case. The police brief includes extensive photos of each item located at the time of interception.
120. When [Mrs A] was brought back to the police station for processing and was informed she would have to remove all her clothes for a full search prior to being placed in a cell, she reached into the front of her pants and produced a snap lock plastic bag containing 35 grams of methylamphetamine which she placed on the custody processing counter. [Mrs A]’s actions were captured on the police station closed circuit television monitoring.

121. The total quantity of methylamphetamine found was 53.99 grams which the police estimated had a street value at the time of AUD53,990.
122. The applicant and [Mrs A] both told the Tribunal that the AUD6,750 found in the black handbag was money [Mrs A] had earned doing [work sector] work such as [job task].
123. The Tribunal does not accept that the narrative presented by the applicant and [Mrs A] in relation to their criminal offending is a full and frank or even accurate account of their offending.
124. The Tribunal finds it implausible that the applicant and [Mrs A] were in possession of the methylamphetamine only to deliver it to someone else when methylamphetamine was found in six different locations within their vehicle in addition to a large quantity being produced from her person by [Mrs A].
125. The Tribunal does not find it plausible that the applicant was a passive participant in the offending when the police observed that the applicant and [Mrs A] were at the property for three hours and the applicant pleaded guilty to the charges he was convicted of.
126. The Tribunal does not accept the evidence of the applicant or [Mrs A] that they were going fruit picking given [Mrs A]’s comment to the police at the time they were intercepted that they were travelling to Melbourne.
127. These findings also cause the Tribunal to doubt the explanation the applicant and [Mrs A] provided that they were attending the property to pick up a trailer, particularly when the property was under police surveillance because the occupants were on bail for drug related criminal offences and were known to police for drug trafficking.
128. These findings further cause the Tribunal to doubt the explanation the applicant and [Mrs A] provided that the AUD6,750 in cash found in the car was in their possession because [Mrs A] had earned that money providing [work sector] services to clients, noting that [Mrs A] pleaded guilty to this money being the proceeds of crime.
129. The Tribunal also does not accept the submission of the representative that the applicant chose to drive to [City] without holding a driver’s licence because of any “emotional impulse”. The Tribunal accepts that both the applicant and [Mrs A] may have been in a state of heightened emotional arousal following their argument on [Day 1] August 2022, but they did not travel to [City] until the next day on [Day 2] August 2022, although they must have left early in the morning to arrive at the [City] property by 11.35am. This break in time between the argument and the act of the applicant driving means in the Tribunal’s view that the applicant’s decision to drive was not an impulsive action or decision or in any other sense beyond his control.
130. The Tribunal also does not accept that the applicant and [Mrs A] only pleaded guilty to the criminal charges they were convicted of to facilitate [Mrs A] and the applicant being able to leave Australia and return to China to care for and support [Mrs A]’s parents. The copy of the Victoria police preliminary brief the applicant provided to the Tribunal reveals that the police collected a significant amount of evidence, including verbal admissions made by [Mrs A], to support the charges the applicant and [Mrs A] pleaded to.
131. A plea of guilty is a public admission by the person charged that they committed the offence they have pleaded to. A guilty plea attracts a sentencing discount (depending on the stage in the proceedings when the plea was entered) reflecting the utilitarian benefit of pleas to the efficient administration of the criminal justice system.
132. The Tribunal does not accept that the applicant (and [Mrs A]) can admit to the offences in the criminal justice process, receive the benefit of doing so but then before the Tribunal provide an alternative explanation for their guilty pleas that asserts or implies, they were not guilty of the offences they were convicted of or that they only entered pleas due to circumstances beyond their control.
133. The Tribunal notes that both the applicant and [Mrs A] were charged with eight and seven separate criminal offences respectively, only one of which was an alternate offence, and they ended up pleading guilty to four and three offences respectively. This indicates to the Tribunal that their guilty pleas were the product of an outcome negotiated by their criminal law lawyers where charges that the applicant or [Mrs A] were not prepared to plead to or for which there was not sufficient supporting evidence were withdrawn. In the Tribunal’s view this undermines the narrative presented by the applicant and [Mrs A] that their guilty pleas were the result of circumstances that were beyond their control at the time only.
134. The Tribunal finds that there were no extenuating circumstances beyond the applicant’s control in relation to his drug related criminal offending that led to the ground for cancellation arising.
135. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s Partner (Subclass 309) visa and in the circumstances set out above the Tribunal gives this consideration great weight.
The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)
136. The applicant participated in the cancellation process in a timely and co-operative manner, including responding to the NOICC. There is no evidence before the Tribunal that the applicant has been uncooperative toward the Department or its officers. These aspects of this consideration weigh against the cancellation of the applicant’s Partner (Subclass 309) visa and the Tribunal gives them some weight.
137. However, the Tribunal considers the applicant did not provide the Department with a full and frank or even accurate account of his criminal offending when he responded to the NOICC by email dated 20 February 2024. In that response the applicant stated (errors in the original):
In relation to the charges of Trafficking Methylamphetamine, Deal property suspected proceeds of crime. They were something that I have never done but they were the charges that I plead guilty to in order to have best outcome for my family at the time of hearing.
At the time of the incident, I was driving the vehicle registered under my wife’s name. We were intercepted on the road by police and drugs were found in the vehicle and on my wife’s person. She was later charged with trafficking Methylamphetamine and the vehicle was deemed as proceeds of crime and hence as a couple, I was therefore charged with trafficking Methylamphetamine and deal with suspected proceeds of crime.
I pleaded guilty to the charges in order to obtain my passport back from Victoria police as soon as I can in order to support my wife whose parents were ill in China and needed support. At the time of our court matter, we were advised that our cases could take well over a year to get finalized and that was something we could not afford at that time, not only financially but also in time itself. Her father was diagnosed with lung cancer in early 2022 and we both flew back to China to take care of my wife’s parents.

138. For the reasons set out in paragraphs 130 to 133 of these reasons, the Tribunal finds the section of the applicant’s response to the NOICC quoted above is not a truthful account by the applicant of his drug related criminal offending.
139. The Tribunal finds this aspect of this consideration weighs in support of the cancellation of the applicant’s Partner (Subclass 309) visa. The Tribunal gives this aspect considerable weight.
140. The Tribunal finds that overall, this consideration weighs in support of the cancellation of the applicant’s Partner (Subclass 309) visa but in the context of the Tribunal’s mixed findings, the Tribunal gives this consideration only some weight.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act
141. [Mrs A] is an Australian citizen and her status as an Australian citizen will not be affected by the cancellation of the applicant’s Partner (Subclass 309) visa.
142. There is no-one who is dependent on the applicant’s Partner (Subclass 309) visa and there will be no consequential cancellation of another person’s visa if the applicant’s Partner (Subclass 309) visa is cancelled.
143. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Partner (Subclass 309) visa.
Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
144. The mandatory legal consequences of a decision to cancel a visa usually include, in the absence of the former visa holder being granted another visa, that they become an unlawful non-citizen and could be detained under s 189 of the Act and in the absence of departing Australia voluntarily could be deported under s 198 of the Act. In those circumstances the former visa holder would also be prevented by s 48 of the Act from applying for other temporary visas while they remained in Australia. After the cancellation of their visa the former visa holder would also be subject to Public Interest Criterion 4013 (PIC 4013) which would result in them being prevented for three years from the date of cancellation from applying for a temporary visa to return to Australia, unless they could establish there were relevant compelling or compassionate or compelling circumstances.
145. The representative submitted in the post-hearing submission dated 8 August 2024 that there would be four specific mandatory legal consequences for the applicant if the Tribunal affirms the primary decision to cancel the applicant’s Partner (Subclass 309) visa, as follows (emphasis and errors in the original):
1.   [The applicant]’s Subclass 100 visa will be subsequently refused as a result of the Tribunal affirming the cancellation decision of his Subclass 309 visa.
2.   [The applicant] remains section 48 barred, meaning there are limited types of exempted substantive visas outlined under regulation 2.12 of the Regulations that [the applicant] can validly lodge in Australia. Please note that [the applicant] will not be able to validly apply for onshore Partner visas (subclasses 820 and 801) in Australia once the Department refuses his Subclass 100 visa. Refer to subsubparagraph 1124B(3)(e)(i)(B) of the Regulations. [The applicant] instructs that he is currently not eligible for the other exempted substantive visas prescribed in regulation 2.21 of the Regulations.
3.   [The applicant]’s current Subclass 050 (BVE) will cease 35 days after the Tribunal makes a decision. Refer to paragraph 050.513 (1) (aa) of the Regulations.
4.   [The applicant] remains affected by Public Interest Criterion (PIC) 4013. According to PIC 4013 (2)(d), this criterion applies to those who had a visa cancelled under section 116 of the Act and were found that the ground prescribed by paragraph 2.43(1)(oa) of the Regulation applied to them. This is exactly the case in [the applicant]’s matter.
The compounding effects of consequences 1 to 3 mean that our client would be compelled to leave Australia before his current BVE ceases.
The effect of consequence 4 will cause [the applicant] great difficulty in obtaining most of the temporary visa, including a Subclass 600 Visitor visa, to return to Australia to temporary support [Mrs. A] and his in-laws if required. PIC 4013 effectively bans applicants from being granted a visa which requires the applicant to satisfy this criterion for three years, unless the Minister is satisfied that there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (refer to PIC 4013(1)).
The compounding effects of all 4 consequences mean that [the applicant] would need to apply for another Subclass 309 & 100 Partner visa offshore and wait until the new Subclass 309 is granted to return to Australia to support his family. Please note that the current estimated processing time for a Subclass 309 application is 50% processed in 19 months and 90% in 47 months, meaning that [the applicant] may not be able to reunite with his family in Australia for an estimated 1.5 to nearly 4 years.

146. The Tribunal accepts the submissions of the representative save that the Tribunal does not accept that the applicant would not be able to obtain a temporary visa to return to Australia given the potential compassionate or compelling circumstances affecting [Mrs A] as an Australian citizen and her parents as Australian permanent residents. This is not a finding by the Tribunal that the applicant would be able to be granted a temporary visa as the establishment of relevant compassionate or compelling circumstances depends on [Mrs A]’s and her parents’ circumstances at the time the applicant applies for a temporary visa.
147. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s Partner (Subclass 309) visa and the Tribunal gives this consideration considerable weight.
Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation
148. Australia has obligations created by signing and ratifying international agreements including the Refugees Convention and the Refugees Protocol, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).
149. The obligations those agreements create on Australia relevant to the potential cancellation of the applicant’s visa include, in broad terms:
·To ensure someone who is found to be a refugee is not sent back to a country where their life or freedom would be threatened or to somewhere where there are substantial grounds for believing that person would be in danger of being subject to torture. This is known as to not refouler someone;
·To make decisions with regard to the best interests of any children as a primary consideration; and
·To preserve the integrity of the family unit unless separation is necessary to protect a child from violence, abuse or neglect.

150. A person is considered a child under the CRC if they are below the age of 18 years at the time of this decision.
Protection claims
151. The applicant does not claim that he cannot return to China because he will be at risk of being harmed or tortured. There is no information before the Tribunal to indicate the applicant has or intends to apply for a Protection visa or claims that Australia owes him an obligation of protection.
152. The Tribunal finds that this aspect of this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Partner (Subclass 309) visa.
Best interests of any children and family unity obligations
153. The applicant does not have any children.
154. The Tribunal finds that this aspect of this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Partner (Subclass 309) visa.
Overall finding
155. As a result of these findings the Tribunal finds that the cancellation of the applicant’s Partner (Subclass 309) visa will not cause Australia to be in breach of its obligations under any international agreements.
156. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Partner (Subclass 309) visa.
If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia
157. The applicant’s Partner (Subclass 309) visa is a temporary visa.
158. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s Partner (Subclass 309) visa.
Any other relevant matter
159. The representative submitted in the submission dated 8 August 2024, quoting [Mrs A]’s statement dated 6 August 2024, that [Mr C’s health has deteriorated recently causing [Mrs A] to delay her own scheduled surgery in China:
As [Mrs. A] mentioned in the hearing dated 1 August 2024, her father was hospitalized again due to that his medical conditions. We enclose a recent medical certificate in relation to [Mr. C]’s dated 3 August 2024 for your reference, which confirms that [Mrs. A]’s father was advised to be hospitalized at Tianjin [Hospital 2] 30 July 2024.

[Mrs. A] confirmed in her statement that her father has been admitted to the hospital since 30 July 2024. As her father’s condition has been very unstable in the past few days, [Mrs. A] has decided to return to China to look after him [in] August 2024, instead of proceeding with her surgery originally planned for 9 August 2024. This surgery has been postponed to allow [Mrs. A] to fully dedicate herself to her father's care. [Mrs. A] reiterates that they wish to return to Australia once her father's condition allows. As [Mrs. A] stated:

“My father was admitted to the Internal Medicine Department of [Hospital 2] on July 30. He suffered from heart failure due to atrial fibrillation, dyspnea, hydrops in the heart, and malignant tumor occupying half of the lungs, which caused pressure on the heart. His condition has been fluctuating in the past few days of hospitalization, and no one takes care of him. I temporarily hired a caregiver to take care of him until I returned. I originally had an appointment with the Diabetes Mellitus Department of Pudong Branch of [Hospital 3] for jejunectomy operation, and I was expected to be admitted to hospital on August 9, but my father needs my care more. This morning, his attending physician told me that he still needs a puncture to remove the pleural effusion, hoping to recover his strength and return to Australia for a change of air and environment, which may prolong his life. I will fly back to China on August 8 to take care of my father.”

We submit that [Mrs. A]’s father’s worsening condition is a further compassionate circumstance that should be weighed in favour of not cancelling [the applicant]’s Subclass 309 visa.

160. [Mrs A]’s updated Australian government movement records confirm that [Mrs A] departed for China on [Day 1] August 2024 and returned to Australia on [Day 2] August 2024.
161. The Tribunal accepts that [Mrs A] delaying her own surgery to prioritise caring for her father who was then in China elicits compassion for the circumstances of the applicant and [Mrs A] and this weighs against the cancellation of the applicant’s Partner (Subclass 309) visa.
162. The representative also submitted that the following additional matters weigh against the cancellation of the applicant’s Partner (Subclass 309) visa:
·The applicant’s voluntary aged care work and other contributions and now long-term connections to the Australian community;
·The recent actions of the applicant (and [Mrs A]) to address his addiction and mental health;
·The applicant has remained drug free since his release from prison;
·The applicant has not engaged in further criminal activity;
·The applicant’s remorse for his August 2022 offending which was assessed by [Mr E] as genuine remorse; and

·The applicant and [Mrs A] still wish to start a family but given [Mrs A]’s age and medical conditions may now have to do so through surrogacy, the difficulty of which would be compounded if the applicant’s Partner (Subclass 309) visa is cancelled.

163. The Tribunal accepts these submissions.
164. The Tribunal also notes that [Mrs A] has obtained formal qualifications and has previously work in aged care, which are skills that are needed in the Australian community.
165. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s Partner (Subclass 309) visa. The Tribunal gives this consideration some weight.
Representative’s written submissions
166. The representative submitted in the submission dated 25 July 2024 that the legal framework for the Tribunal’s consideration of the applicant’s application for review requires the Tribunal to have regard to the following (emphasis and errors in the original):
It is also noted in policy that if a delegate is considering whether to cancel a permanent visa, they are also to take into account whether the visa holder has formed strong family, business or other ties in Australia.
It is important to note that if there are grounds of cancellation, policy notes that generally matters must be weighed in favour of the visa holder, not against:
“The weight applied to each of the matters is at the discretion of the delegate, and each matter must be apportioned a weighting. Generally, matters must be weighed in favour of the visa holder, not against the visa holder:”

167. The Department’s policy is intended to assist achieving consistency of decision-making amongst delegated decision makers. It is not a statement of the law and should not be treated in a manner that effectively elevates it to such status. Given its status and purpose it is obvious that Departmental policy is not binding on the Tribunal. Merely because Departmental policy is not binding on the Tribunal though, is not good reason to ignore it. The Tribunal refers to Departmental policy to assist the Tribunal to ensure it has considered all of the circumstances of the applicant before the Tribunal makes its decision.
168. The policy in relation to the applicant’s family, business or other ties in Australia is expressed as only being relevant where the visa that has been cancelled is a permanent visa. The applicant’s visa is a provisional or temporary visa. This does not mean these matters are completely irrelevant. The Tribunal has considered them as part of considering all of the applicant’s circumstances, particularly when assessing what hardship cancellation could cause the applicant or his family and the consideration of any other matters.
169. The quote from the Department’s policy provided by the representative is out of date. At the time the applicant’s visa was cancelled and at the time of this decision, the relevant section of the Department’s policy, known as a Procedural Instruction, provides (errors in the original):
Matters should be weighed in favour of visa cancellation or against visa cancellation. It is not appropriate to afford ‘no weight’ to the matters raised or any consideration made by the delegate as this can be interpreted as the delegate not engaging in proper and genuine consideration. If there is no information available to the delegate it is more appropriate to demonstrate that the delegate is ‘unable to give any weight for or against a decision to cancel the visa for this consideration’ as this demonstrates proper and genuine consideration of the matter.

Conclusions
170. The discretionary considerations that weigh in support of the cancellation of the applicant’s Partner (Subclass 309) visa are:
·The purpose of the applicant’s travel to and stay in Australia including that he has a compelling need to remain in Australia (some weight);

· The circumstances in which the ground for cancellation arose (great weight); and
·The applicant’s past and present behaviour toward the Department (some weight).

171. The discretionary considerations that weigh against the cancellation of the applicant’s Partner (Subclass 309) visa are:
·The applicant’s compliance with the conditions attached to visas he has held (some weight);
·The degree of hardship the cancellation of the applicant’s visa would cause the applicant and his family members (significant weight);
·The mandatory legal consequences of cancellation (considerable weight); and
·Any other relevant matter (some weight).

172. The discretionary considerations that are neutral and weigh neither in support of nor against the cancellation of the applicant’s Partner (Subclass 309) visa are:
·Whether cancellation of the applicant’s visa will cause the consequential cancellation of any other visa;
·Australia’s obligations under international agreements including obligations to act in the best interests of any children as a primary consideration and to protect children from violence, abuse or neglect including by a parent; and
·Whether the applicant’s visa is a permanent visa.

173. Considering the applicant’s circumstances as a whole, the Tribunal considers that the discretionary considerations that weigh in support of the cancellation of the applicant’s Partner (Subclass 309) visa outweigh the discretionary considerations that weigh against the cancellation of that visa which leads the Tribunal to find that the applicant’s Partner (Subclass 309) visa should be cancelled.
DECISION
174. The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.
Date of hearing: 1 August 2024
Representative for the Applicant: Ms Cheryl Wong