Cao (Migration) - [2023] AATA 2623

Cao (Migration) [2023] AATA 2623 (9 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Dang Khoa Cao
REPRESENTATIVE:  Miss Andie Minh Lam
CASE NUMBER:  2307556
HOME AFFAIRS REFERENCE(S):          BCC2022/5690293
MEMBER:Kira Raif
DATE:9 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 09 August 2023 at 11:48am
CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal convictions, imprisonment and community corrections order – ground for cancellation conceded – discretion to cancel visa – circumstances of offences – obtaining financial advantage to pay for study – cooperation with police, repayment of funds and guilty plea – young age, first offences, remorse and low risk of reoffending – genuine and ongoing relationship, mortgage, partner’s study, and family and community ties – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
CASE
Burton (Migration) [2018] AATA 4220
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 25 May 2023 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 (Cth) (the Act).
The applicant is a national of Vietnam, born in October 1997. He was granted the Partner Provisional visa in June 2019. In December 2022 the applicant was convicted of offences described below and in February 2023 he was issued with the Notice of Intention to Consider Cancellation (NOICC) of his visa. The applicant provided his response to the NOICC and his visa was cancelled in May 2023. The applicant seeks review of the delegate’s decision.
The issue in the present case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. Other witnesses attended the Tribunal hearing but he Tribunal determined that it was not necessary to take oral evidence from them. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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(g).
The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It relevantly states:
Reg 2.43 Grounds for cancellation of visa (Act, s116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao (Migration)

Details

AGLC: Cao (Migration) [2023] AATA 2623
Case: [2023] AATA 2623
Decision Date: 9 August 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr Cao against the cancellation of his Partner (Temporary) (Class UK) visa, Subclass 820 (Spouse). The cancellation was based on criminal convictions, for which Mr Cao had received a period of imprisonment and a community corrections order. The ground for cancellation under s 116(1)(g) of the Migration Act 1958 (Cth) was conceded by Mr Cao. The primary issue before the Tribunal was whether, in the exercise of its discretion, the visa should be cancelled, given that the ground for cancellation did not mandate it.

The Tribunal was required to determine whether to exercise its discretion to cancel Mr Cao's visa. In doing so, it considered various factors, including the purpose of Mr Cao's stay in Australia, his compliance with visa conditions, and the potential hardship that cancellation might cause. The Tribunal also had regard to the Department's Procedures Advice Manual concerning general visa cancellation powers.

The Tribunal reasoned that while the ground for cancellation was established, it was not a mandatory cancellation. It noted that Mr Cao had arrived in Australia at the age of 17 to study and had subsequently been granted a Partner visa. The Tribunal accepted that Mr Cao's relationship with his partner was genuine and ongoing, and that his partner was financially and emotionally reliant on him, particularly in relation to mortgage repayments and her ability to continue her studies. The Tribunal also considered Mr Cao's young age at the time of the offences, his cooperation with authorities, his repayment of funds, his guilty plea, his remorse, and his low risk of reoffending. Weighing these factors, the Tribunal concluded that the circumstances did not warrant visa cancellation.

Consequently, the Tribunal set aside the decision to cancel Mr Cao's visa and substituted a decision not to cancel his Subclass 820 visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelledDECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia In his written submission to the Tribunal the applicant states that he arrived in Australia in September 2014 on a Student visa and he was only 17 years old when he came to Australia to study. He initially enrolled in a Bachelor of Nursing and after failing many subjects, he transferred to a Bachelor of IT in November 2021. In oral evidence the applicant also told the Tribunal that initially he planned to do an IT course but he was advised to do a nursing course to have better career prospects. After failing most of his subjects, he transferred back to the IT course. In June 2019 the applicant was granted the temporary Partner visa. He provided materials to the Department in support of the permanent visa. The purpose of the applicant’s stay in Australia as a holder of a Partner visa is to enable him to remain in Australia with his de facto partner. The applicant provided evidence of his ongoing relationship with his partner, including a declaration from his partner, and the applicant states that despite his conviction, his partner remains committed to the relationship. The applicant also refers to the support he receives from his parents and his partner’s sister (noting that her parents disapproved of the relationship). The Tribunal is prepared to accept, for the purpose of this review, that the applicant’s relationship with his partner is genuine and ongoing. The Tribunal also accepts that his partner is dependent on the applicant’s income to support the mortgage repayments. The Tribunal is satisfied that the applicant is fulfilling the purpose of his travel and stay in Australia. The Tribunal is prepared to accept that the applicant’s ongoing and long term relationship with his partner, and her financial and emotional reliance on the applicant, may, in the particular circumstance of this case, constitute a compelling need for the applicant to remain in Australia. The extent of compliance with visa conditions There is no evidence of non-compliance with visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) In his response to the NOICC the applicant states that emotional and financial hardship would be caused to him and his partner if the visa is cancelled. The applicant states that he and his partner had purchased a property and he refers to increasing mortgage repayments. The applicant refers to his partner’s employment and study. He states that if his visa is cancelled, his partner will not be able to continue with her studies and will lose the opportunity to improve her skills. In his submission to the Tribunal the applicant refers to his partner’s admission into the university course (evidence of which has been provided) and states that she would be unable to defer her course or study part-time, so she would be reliant on the applicant to help with mortgage repayments.