Bui (Migration)

[2019] AATA 979

Bui (Migration) [2019] AATA 979 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuan Thien Bui

CASE NUMBER:  1821820

HOME AFFAIRS REFERENCE(S):           BCC2018/3804247

MEMBER:Kira Raif

DATE:8 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 08 January 2019 at 5:32pm

CATCHWORDS
MIGRATION – Cancellation – Subclass 820 (Spouse) visa – a risk to the safety of an Australian community or a segment of the community – criminal charges and the conviction – Grounds for cancellation exist – decision under review affirmed

LEGISLATION
Crimes Act 1900 (NSW), s 316
Drug Misuse and Trafficking Act 1985 (NSW), s 23
Electricity Supply Act 1995 (NSW), s 64
Migration Act 1958, ss 48, 116
Migration Regulations 1994, r 2.43

CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien & Ors v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam, born in July 1991. He was granted the Spouse visa in December 2016. In July 2018 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 23 July 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 3 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be 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. Relevantly, to this case, these include the ground set out in s.116(1)(e). 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)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

6. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record, which contains the following information.

   a.Investigators at a Drug Unit commenced an investigation at a residence in Glen Alpine, NSW. During the investigation, it was established that a two storey premises may have been utilised to grow cannabis plants hydroponically.

   b.On 14 June 2018 investigators observed the applicant drive a motor vehicle into the driveway of the premises. The applicant entered the premises through the front door which operated through an electronic keypad system.

   c.Upon execution of a search warrant and entry to the premises, police observed at least 10 rooms being utilised to hydroponically grow cannabis plants. A total of 321 cannabis plants were located.

   d.The applicant was placed under arrest, cautioned and transferred to a police station. The applicant participated in an interview but declined to answer questions in relation to the allegation. He has been charged and the matter is before the court.

8. In his written response to the NOICC the applicant states that the ground for cancellation is not made out or, alternatively, that the discretion should be exercised not to cancel the visa.

9. The applicant stated in his submission to the delegate that on 14 June 2018 he was charged with cultivation of a prohibited plant not less than a commercial quantity, under s.23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) and under s.64(1) of the Electricity Supply Act 1995 (NSW). He appeared before the Campbelltown Local Court on 15 June 2018 and was remanded in custody. The applicant stated that his application for bail was refused and a further application for bail was listed before the Supreme Court in September 2018. He has no prior criminal convictions. The applicant states that he has not yet pleaded to the charges and was not provided with a brief of evidence. He has not yet been committed to trial.

10. The applicant stated, with respect to the grounds for cancellation, that the focus of s. 116(1)(e) is on risk, rather than the charges and the term ‘risk’ is not defined. The Tribunal acknowledges that it is an assessment of risk that is relevant here and while the charges may be relevant to that assessment, the charges themselves are not sufficient to give rise to the cancellation ground under s.116(1)(e).

11. The applicant correctly points out that the term ‘risk’ is not defined and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001).  The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong at [41]). As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

12. The applicant stated in his submission to the delegate that he has no prior criminal convictions and the cancellation would be unfair because he has not yet pleaded to the charges and has not been convicted. He has not answered questions at the interview and has not been committed to stand trial. The Tribunal does not accept that this is so. While it may be said that the charges do not establish grounds for cancellation, neither does the ground under s.116(1)(e) require a conviction or a guilty plea. An assessment that the risk exists may be made whether or not the applicant has pleaded guilty or has been convicted of an offence. There is a clear distinction between this cancellation ground and the cancellation ground in s.116(1)(g) and r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations), which is based on conviction. There is no legislative intention for the purpose of s.116(1)(e) that the ground for cancellation is limited to convictions, and the Tribunal does not consider that it would be ‘unfair’ to cancel a visa in the absence of a conviction if a ground for cancellation is made out. The applicant concedes that point in his written response to the NOICC by reference to authorities such as Gong and MZAJA. The Tribunal also notes that at the time of this decision, some of the charges have been withdrawn and the applicant has been convicted of one offence.

13. The applicant claims in his submission to the delegate that there is insufficient evidence to make out the ground for cancellation as there is no brief of evidence and no plea from the applicant. (The subsequent events override these concerns.) As noted above, the Tribunal does not consider that a guilty plea is necessary to establish a ground for cancellation. The applicant states that his bail application has not been heard by the courts, although he admits that the police refused to grant him bail and that may suggest that the police formed the view that the applicant may either be a risk to the community or a flight risk. The applicant states that his incarceration pending trial takes away the risk. The Tribunal acknowledges that if the applicant remained in criminal detention, any risk that his presence in Australia may entail would be significantly reduced or negated; however, at the time of this decision, the applicant is not in criminal detention.

14. The Tribunal acknowledges that the applicant has no prior convictions. However, while he claims there is no support for an argument that his conduct in the past leaves open the possibility of a future risk, that fails to have regard to the alleged conduct that led to the present charges and the ultimate conviction for the substituted charge.

15. In his submission to the Tribunal of 21 October 2018 the applicant states that the DPP intends to withdraw the charges against the applicant and substitute one new charge of ‘conceal serious indictable offence – s. 316 of the Crimes Act’. The applicant argues that since the serious charges against him would be withdrawn, the cancellation should be set aside. The applicant’s representative states that the cancellation of his visa constitutes a ‘denial of justice and human rights’ and is contrary to the principles of the presumption of innocence. These matters have been addressed above. As the applicant’s representative would be well aware of the case law cited above, these claims are without any basis.

16. The Tribunal does not accept the applicant’s submission that the cancellation must be set aside on the basis that the original charges have been withdrawn. The ground for cancellation arises if it is determined that the applicant’s presence in Australia is or may be a risk and not because of the specific charges. The withdrawal of the original charges is not in itself sufficient to establish that such a risk cannot exist.

17. In December 2018 the applicant provided a further submission to the Tribunal. The applicant presented a statement of agreed facts indicating that he was charged with an offence of ‘conceal serious indictable offence’ under s.316 of the Crimes Act 1900 (NSW) (the Crimes Act). The statement of agreed facts indicates that premises at Glen Alpine had been under the observation of the police. The police observed the applicant drive into the driveway of the premises and check the letterbox before entering the premises. When the search warrant had been executed, the police observed a number of rooms were utilised to hydroponically grow cannabis plants. Experts from an energy company confirmed the existence of an illegal bypass estimating the electricity used but not paid for was in the vicinity of $56,500. It is stated that the applicant participated in an electronically recorded interview but declined to answer questions in relation to the allegation. The applicant presented evidence of the Community Correction Order. The evidence indicates that he was convicted of an offence of ‘conceal serious indictable offence of another person’ and was given a Community Correction Order for 9 months commencing on 21 November 2018.

18. In his written submission to the Tribunal of 29 December 2018, the applicant states that ‘the nature of the cancellation no longer exists’ because the charges in relation to the cancellation concerns have been withdrawn. As noted above, the Tribunal considers that submission misguided. The ground for cancellation may arise if the delegate, or the Tribunal on review, forms the view that the applicant’s presence in Australia is or may be a risk to others. It is not linked to any specific charges or convictions. The fact that the primary decision was based on particular charges which have now been withdrawn does not preclude the possibility that the ground for cancellation may exist.

19. In oral evidence the applicant told the Tribunal that in June 2014, his friend asked him to drive his car to a house, and later on, the friend also came to that house. His friend asked him to wait so they could go out together. The applicant said he knew this friend from Vietnam and they saw each other every week or two after he came to Australia, so they were close but he did not know what this friend was doing in Australia. The applicant said his friend asked him to drive the car and gave him the security code to enter the house so he could wait for the friend inside and they would go for a meal together. The applicant said that once he entered the house, he noticed electricity wiring but not anything else that was odd in the house, and he only stayed in the front room. The applicant said his friend arrived about an hour later. His friend explained that the electrical wiring was there because there were many people living in the house and while he did not believe his friend, he did not ask further. The applicant said that he then spent about one or two hours in the house but he only stayed in one room and played on his phone while his friend did something in the house. The applicant said he suspected there was something odd in the house but did not pursue it. The applicant said that he did not participate in the police interview because he was given the option of speaking through a lawyer and also because he was afraid that the criminal gangs would hurt his family.

20. The Tribunal has found the applicant’s evidence unpersuasive. The Tribunal does not consider it plausible that the applicant would agree to drive a friend’s car, check the mail, enter the house and spend a number of hours in the house which had over 240 cannabis plants and significant electrical equipment, yet have no appreciation or at least suspicion of what was happening in that house. The applicant could not explain why he had to drive the car for his friend or check his mail. He could not explain why he only stayed in the front room, even before his friend arrived or for hours once his friend arrived. Even though the applicant states he found the electrical wiring and the friend’s explanation suspicious, he did not leave the house and did not pursue the matter with the friend. The Tribunal has formed the view that the applicant was deliberately evasive in his description of events.

21. The Tribunal is also mindful that under s.316 of the Crimes Act, the offence requires the prosecution to establish that the applicant knew or believed that a serious offence had been committed and knew or believed that he had information that may be of assistance but failed to bring that information to the attention of the police. The applicant’s conviction contradicts his evidence that he did not know what was happening in the house and that he was simply ‘in the wrong place at the wrong time’.

22. The applicant told the Tribunal that he pleaded guilty to that offence in order to help him with the visa cancellation process, because he would otherwise have to go through a lengthy criminal process and he would also avoid jail time if he pleaded guilty to a lesser crime. Despite the applicant’s comments, the Tribunal is of the view that a finding of guilt implies that the elements of the offence have been proven and the applicant can be taken to have committed the offence.

23. The applicant told the Tribunal that he had spent three months in prison and he had the opportunity to learn new skills and to tell the difference between right and wrong. He said that he wants to help other people who are the victims of criminals. The Tribunal does not accept that the applicant learned the distinction between right and wrong while in prison. The Tribunal is of the view that the applicant would have been well aware of that distinction before his imprisonment, and his conviction suggests that he made the decision not to engage with the authorities and not to report the serious crime.

24. It is of considerable concern to the Tribunal that despite the guilty plea and the conviction, the applicant repeatedly told the Tribunal that he was at the wrong place at the wrong time and pleaded guilty as a matter of convenience. The Tribunal is not satisfied that the applicant has any remorse for his conduct or appreciation of those elements of his conduct that were contrary to the law. The applicant had taken no steps to disassociate himself from the situation which in his own words was ‘odd’.  The Tribunal is not satisfied the applicant fully appreciates his obligations as a member of the community, including the obligation to abide by the laws.

25. The Tribunal is satisfied that the presence of the applicant in Australia may be a risk to safety or good order of the Australian community. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

26. 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

27. The purpose of a Partner visa is to enable the applicant to remain with his wife in Australia. The applicant states in his submission to the delegate that he entered Australia on a Student visa and was subsequently granted a Partner visa on the basis of his relationship with Ms Quach. The Tribunal accepts for the purpose of this review that the applicant is in a relationship with Ms Quach. The applicant states that the cancellation of his visa would result in his permanent visa being refused and that he would be subject to s.48 of the Act. The Tribunal accepts that this would be so although the Tribunal is also mindful that the applicant may make certain applications onshore and many others offshore.

28. The delegate states in the primary decision that the applicant held Student visas prior to being granted the Partner visa but he had the CoEs for various courses cancelled and only completed non-award courses and did not commence the Masters course for which he obtained the visas. The applicant explained to the Tribunal that once he married his wife, he decided to find a job and let her study because once he started his own family, he was no longer receiving financial support from his parents. The Tribunal is of the view that the ground for cancellation relates to the present visa that is the subject of the cancellation and not previous visas held by the applicant. Whether or not the applicant fulfilled the purpose of his Student visas, it is not the cancellation of his Student visa that is under consideration. If there was non-compliance with the conditions of the previously held Student visas, there may have been grounds for cancelling those visas, but such non-compliance is not relevant, in the Tribunal’s view, to the present cancellation.

1. As the applicant appears to be in a relationship with his wife, the Tribunal is satisfied that he is fulfilling the purpose of his Partner visa. The Tribunal is also of the view that the presence of the applicant’s wife and child in Australia may constitute a compelling reason for him to remain in Australia. 

   The extent of compliance with visa conditions

2. There is no evidence of any non-compliance with visa conditions and there were no conditions attached to the applicant’s Partner visa.

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

3. With respect to this consideration, the applicant states in his written response to the NOICC that his departure from Australia would cause significant hardship to his family. The applicant states that his wife is 21 years old and gave birth to their child on 27 June 2018. The applicant provided his child’s birth certificate. The applicant states that his wife faced ‘extraordinary hardship’ in recent weeks as a result of his incarceration and if he is forced to depart Australia, it will result in separation of the applicant and his family, which would cause significant emotional and psychological hardship to the applicant and his family while his son would be permanently separated from his father. The applicant told the Tribunal in oral evidence that the child needs the affection of both parents.

4. The Tribunal acknowledges that if the applicant’s visa is cancelled, and if he is not granted another visa, he may be required to leave Australia. If his wife and child do not accompany him to Vietnam, he may be separated from them; however, there is no reason why the applicant’s separation from his child would need to be permanent. There is nothing preventing the applicant from applying for another visa in the future, and while some visas may be subject to an exclusion period, some are not. There is no guarantee that the applicant will be granted another visa but there is equally no guarantee that the applicant will be granted his permanent visa in Australia. The Tribunal does not accept that the cancellation of the visa would result in the applicant’s permanent separation from his family in Australia.

5. The Tribunal questioned the applicant whether his partner and child are able to accompany the applicant to Vietnam. The applicant claims that life and society in Vietnam are not as good as in Australia, but the Tribunal finds such generalised and vague statements unhelpful. The applicant has not satisfied the Tribunal that his wife and child would be unable to travel to Vietnam with him, at least for a period. The Tribunal is not satisfied that if they were to stay in Vietnam, the family would experience any significant hardship. A general comparison of lifestyles between Australia and Vietnam does not assist the applicant.

6. The applicant states that if he has to return to Vietnam, he would have to build up his life from scratch, which would be difficult. Putting aside the fact that the applicant may wish to apply for an Australian visa offshore so that he may not live in Vietnam for an extended period, the Tribunal does not accept the applicant’s evidence. The applicant had spent the majority of his life in Vietnam, completed his tertiary education in Vietnam and has family there. He speaks Vietnamese fluently. The Tribunal does not accept the applicant’s claim that he could not re-settle in Vietnam. The applicant also claims he would not earn enough compared to the Australian standards, and while the Tribunal accepts that his income in Vietnam may be lower than his income in Australia, there is no reason why the applicant should measure his income and wealth by the Australian standards. The Tribunal does not consider that any failure to attain the Australian standard of living while residing in Vietnam would constitute hardship.

7. The applicant states that when he was jailed, his wife suffered a lot psychologically and he does not want to put her through any psychological harm again. His wife had supported him in the past and he wants to repay her and support her now and compensate her for the hard time.  The Tribunal accepts that evidence.

8. The applicant states that his wife has never lived in Vietnam and it would be difficult for her to settle there. The applicant referred to general pollution, poor food and water quality and states that these can cause cancer. The applicant presented no probative evidence to support these contentions and the Tribunal does not accept the applicant’s claims without probative evidence. The Tribunal does not accept that the applicant’s residence in Vietnam, for whatever period, would have adverse health effects for the applicant and his family.

9. The applicant states that if he applies for a visa offshore, it may take a few years for the visa to be granted and he does not want to be separated from his family. The applicant suggested that if his visa is cancelled, he does not want his family to accompany him. The Tribunal accepts that if his wife and child decide not to accompany the applicant to Vietnam, the family will be separated, at least for a period of time.

10. The Tribunal accepts that the cancellation of the visa would cause considerable hardship to the family.

    Circumstances in which ground of cancellation arose

11. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety or good order of the Australian community. The Tribunal acknowledges the applicant’s submissions to the delegate that he had not committed any other offences.

    Past and present behaviour of the visa holder towards the Department

12. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

13. There are no persons who would be subjected to consequential cancellation under s.140.

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

14. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be subject to possible removal from Australia and he may be subject to an exclusion period in relation to some future visa applications. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. If the applicant does not hold a temporary Partner visa, this may affect his eligibility for the permanent visa.

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

15. There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations would be breached as a result of the cancellation. The applicant stated in his submission to the delegate that the cancellation on the basis of unproven charges would be a denial of justice and human rights but these matters do not give rise to Australia’s protection obligations. The Tribunal is mindful that if the applicant believes he would be subjected to any harm in his home country, he is able to make an application for a protection visa. In these circumstances, the Tribunal is satisfied that Australia’s non-refoulement obligations would not be breached as a result of the cancellation.

16. The applicant has an Australian citizen child born in June 2018. In his submission to the delegate, the applicant refers to the ICCPR and CROC and states that he does not want to be separated from his son. The Tribunal acknowledges that if the applicant’s visa is cancelled and if he is not granted another visa, he may be required to leave Australia, leading to his separation from his son, at least temporarily.

17. The applicant states that the best interests of the child is to be with both parents and live in a better society and do whatever he wants to do. The applicant told the Tribunal that if he has to leave Australia, he would prefer for his wife and child to remain in Australia, so the child would be able to continue with the lifestyle he is accustomed to. The Tribunal notes that the applicant is eligible to make other visa applications in the future, including an application for a Partner visa and a Parent visa. The Tribunal does not consider that any separation would be permanent or necessarily long term. If the applicant’s relationship with his wife is genuine, the applicant may be eligible to obtain a Partner visa in the future and be reunited with his wife and child, albeit there will be a period of separation.

18. The applicant’s evidence to the Tribunal is that both he and his wife take care of the child and they also get help from his mother in law. The Tribunal notes that the support from the child’s mother and grandmother will continue irrespective of the applicant’s visa status. The Tribunal is satisfied the child will continue to receive the necessary care and support.

19. The Tribunal is prepared to accept that the best interests of the child require the presence of both parents, but in the circumstances of this case, where any separation is likely to be temporary either because the applicant’s partner and child will accompany or visit the applicant in Vietnam or because the applicant may be eligible to return to Australia on another visa, the Tribunal does not consider that the best interests of the child would be adversely affected to any significant degree by the cancellation.

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

20. The cancellation under review is a cancellation of a temporary visa, although that visa may be a prerequisite to the grant of the permanent Partner visa. The Tribunal acknowledges that the applicant has strong family ties in Australia as his wife and child reside in Australia.

    Any other relevant matters

21. The applicant told the Tribunal that he works as a chicken boner and his wife works in a pub. They look after the child together and they also get the support from his parents in law who live with them. The Tribunal accepts that evidence.

22. The applicant told the Tribunal that it is human to make mistakes and he was simply at the wrong place at the wrong time. The applicant said that he pleaded guilty because it was his best option in the circumstances. As noted above, however, the Tribunal is of the view that a conviction can be taken as evidence that all the elements of the offence have been proven.

23. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that the presence of the applicant may be a risk to safety or good order of the Australian community because the applicant has been convicted of an offence and because the applicant appears to have little appreciation of the significance of his conduct. The Tribunal accepts that there are strong reasons why the visa should not be cancelled. In particular, the applicant has strong family ties in Australia, his wife and child are Australian citizens and the Tribunal accepts that the applicant has a close relationship with them and provides them with support. The applicant is fulfilling the purpose of his stay in Australia and there is a compelling need for him to stay in Australia due to the presence of his family here. The Tribunal also accepts the applicant’s evidence that the best interests of his child require the presence of both parents, although the Tribunal has formed the view that the best interests of his child would not be adversely affected by the cancellation of the visa because any resultant separation is likely to be temporary. The Tribunal accepts that hardship would be caused to the family if the visa is cancelled. There are no other known instances of non-compliance. These are reasons why the visa should not be cancelled.

24. Against these considerations, the Tribunal notes that the applicant has committed a serious offence and the Tribunal is not satisfied that the applicant has shown a genuine appreciation of his conduct or any remorse for it. The Tribunal has formed the view that the applicant had failed to take reasonable steps to disassociate himself from the situation which led to the charges and the conviction. The Tribunal finds that the circumstances in which the ground for cancellation arises and the nature of the applicant’s conduct outweigh other considerations.

25. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

    Kira Raif
    Senior Member