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 cancel a visa), the grounds prescribed are:
(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))
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?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates that he was granted the Partner (Provisional) Subclass 820 visa on 20 June 2019. In December 2022 the applicant had been convicted of the following offences at the Parramatta Local Court:
a.Dishonestly obtaining financial advantage etc by deception
b.Deal with property proceeds of crime => 100,000
The applicant pleaded guilty and was convicted to a term of imprisonment of 18 months and a community corrections order for a period of 6 months. (The applicant provided to the Tribunal a documents showing court outcomes which indicates that a number of other charges had been dismissed or withdrawn.)
In his written submission to the Tribunal of 2 August 2023 the applicant concedes that the ground for cancellation exists.
The Tribunal finds that the applicant was a holder of a Subclass 820 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).
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.
The applicant states that he and his partner have been together for over five years and during his imprisonment his wife supported him. The applicant states that they are deeply in love and if his visa is cancelled, it would greatly impact his wife who relies on him for emotional support.
The applicant told the Tribunal that when he was spending time in jail, his partner had developed depression, was suicidal, and sought treatment with a psychologist for mental health. He believes that if he is not around to support his partner, she may again develop mental health issues.
In his submission to the Tribunal the applicant states that his partner is of Nepalese background and their relationship is supported by others, the applicant states that his partner visited him during imprisonment and communicated with his parents. Their relationship continued upon his release in December 2022. They live with family members and his partner supported his reintegration into society by encouraging him to find work.
The applicant states that he and his partner had jointly purchased a property in Leumeah and have been making mortgage repayments. He states that after his release, he has not had any income and his partner pays for his expenses and his evidence to the Tribunal is that his visa now allows him to work and he is working on a full-time basis and does some freelance work. Their plan is for his partner to complete the Bachelor degree, get married and have a child but now their future is uncertain due to the cancellation of the applicant’s visa.
The applicant also states that he has been living in Australia since 2014 (when he was 17) and has formed significant ties, including family and community ties. He refers to the help he provides to his granduncle (living in the same house) and doing some chores for his elderly relatives, noting that their daughter cannot do so due to work commitments. The applicant states that his departure from Australia would cause hardship to his relatives.
The applicant refers to the emotional support he and his partner provide to each other. The applicant’s partner expressed her support for the applicant and an undertaking to help him retain a crime-free life. The Tribunal is prepared to accept the applicant’s evidence and generally accepts that emotional hardship would be caused to the applicant, his partner and others if the visa is cancelled.
The applicant refers to the financial hardship, should his visa be cancelled. He refers to the purchase of the property, stating if it was to be sold now, there would be significant financial loss and the possibility that his partner would not be able to afford another property in the future. The applicant states that due to his partner’s study commitments, she would be reliant on him to help with mortgage repayments as she would need to attend her course five days a week. The Tribunal accepts that financial hardship would be caused to the applicant and his partner if the visa remains cancelled.
The applicant refers to emotional hardship, noting that his partner would struggle to live in Vietnam, having no language skills. Relocating to Vietnam for his partner would mean abandoning her study and family in Australia. The applicant states that his partner’s family do not support the relationship and would pressure her to break it up and marry another person.
The applicant told the Tribunal that he is now working full-time and supporting his partner and the mortgage. His partner will not be able to study and maintain the mortgage and if they were to sell the house, they will not be able to purchase the house again. He also believes that if he is not in Australia, his partner would probably drop out of the university study (as she had done before) as she would be under too much pressure and all her past study would be wasted. The applicant refers to his partner’s mental health while he was in jail and states that he does not believe his partner could handle it without him, having developed depression in the past.
The applicant’s partner Ms Tamang gave oral evidence in which she refers to her emotional and financial dependence on the applicant. She spoke about the hardship she had experienced when he was incarcerated, including suicidal thoughts and she told the Tribunal she does not wish to experience that again. She said that if the applicant was not there to support her, she is likely to give up her university study.
The applicant told the Tribunal that his grand-uncle has had health issues and he has been helping his grand-uncle with showering and meal preparation. He also helps his uncle’s wife with looking for a job. He states that he is the only person who can help around the house.
The applicant states that he has been living in Australia for ten years and if he is to return to Vietnam, it might take time for him to re-settle.
The Tribunal generally accepts the above submissions and accepts that considerable hardship could be caused to the applicant and his partner and, to some degree, to others if the applicant’s visa is cancelled. This weighs heavily against the cancellation.
Circumstances in which ground of cancellation arose
The ground for cancellation arises because the applicant held a temporary visa and has been convicted of an offence.
The applicant provided to the Tribunal a copy of the NSW Police Facts Sheet. It states that the applicant sold skincare products on eBay and another website. These accounts were linked with a bank account in the applicant’s name and PayPal accounts also in the applicant’s name. It is stated that the applicant never had possession of any skincare products but offers the products at a lower price than other retailers. He then purchased the products from another online retailer to fill his orders using stolen credit card and identity information. (He told the Tribunal he purchased the credit card information on the dark web.) It is stated that the total sales from the eBay accounts into the applicant’s bank account was in excess of $150,000.
In his declaration in response to the NOICC the applicant refers to the financial burden on his parents in paying his and his sister’s educational fees. The applicant states that using his knowledge of IT, he made a ‘mistake’ online trying to get $106,000 to pay school fees and other expenses. The applicant told the Tribunal that much of the funds were repaid, he had cooperated with the police and pleaded guilty at the first opportunity. The applicant states that he believed that the banks would repay those whose cards he was using and it was ok to defraud the banks as they were rich.
In his response to the NOICC the applicant states that that the wrongful act was to enable him to pay the university fees to avoid being a burden for his parents and he did not commit fraud to pay for luxury goods. The applicant refers to the funds he had wasted on the nursing course, stating that his parents had to work very hard. He states that he had made a ‘wrong choice’ as he was in a ‘panic situation’ and thought he would be unable to continue with his study. The applicant refers to his young age, loneliness and emotional breakdown. The applicant refers to feeling guilty and ashamed and embarrassed about his activities and has expressed his remorse. The applicant also expressed remorse in his letter of apology which he provided with his response to the NOICC.
In his written submission to the Tribunal the applicant states that these are his first convictions and he has had no issues with the law otherwise. The applicant states that he had wasted money on his Nursing degree and failed subjects in the IT degree and he was too excited with the idea of working for money at the time and got ‘side-tracked’ and lost his focus on study and purpose of his travel to Australia. He felt embarrassed about wasting money and decided to ‘take the shortcut’ to fix his problems. The applicant states he was motivated by the fact that it was easy money and justified his actions by thinking the bank would reimburse the victims. He did it to help his parents and to continue to pay for the course and avoid the cancellation of the visa, embarrassment and failure.
In oral evidence, the applicant states that he did not think about the consequences and wanted easy money as he had failed too many subjects in his Nursing course and did not want to be a burden to his parents. The applicant told the Tribunal that he was ‘paranoid’ of being caught and wanted to stop the crime and he had asked his brother to find beauty products for him. The applicant states that during his time in prison he had time to reflect and he now understands better what he has done and the consequences (he refers to being unable to find any IT work due to his criminal conviction).
Past and present behaviour of the visa holder towards the department
Nothing adverse is known about the applicant’s behaviour towards the Department.
Whether there would be consequential cancellations under s 140
There are no persons whose visas would be subject to consequential cancellation.
Mandatory legal consequences
If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although he would have limited opportunities to make visa applications onshore due to the limitations imposed by s. 48. The applicant may also be subject to an exclusion period if he was to make an application offshore. If the temporary Partner visa is cancelled, the applicant may not be eligible for the permanent Partner visa.
The Tribunal is mindful that the applicant has been sentenced to a term of imprisonment for 12 months or more and may be considered to have a ‘substantial criminal record’ for the purpose of the character test in s. 501(6). The interplay of these provisions had been considered by the Tribunal in Burton (Migration) [2018] AATA 4220 (27 August 2018).
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence, and the applicant does not claim, that Australia’s non-refoulement obligations arise in this case.
The applicant told the Tribunal that there are no children who would be affected by the cancellation of the applicant’s visa. However, he also refers to his relationship with his niece and nephew (8 and 6 year old). The applicant states that he has had a close relationship with them since their birth and sees them weekly and plays with them. The applicant states that if the children visit his great-uncle’s house, he looks after them, plays with them and cooks for them. The Tribunal is prepared to accept that but the applicant’s evidence is that the children normally live with their parents and parental responsibilities are carried out by others. The applicant’s involvement in the children’s lives seems to be insignificant. On the basis of the limited evidence before it, the Tribunal does not consider that the children’s best interests would be affected if the applicant’s visa is cancelled.

As for the principles of family unity, the Tribunal acknowledges that if the applicant’s visa is cancelled and if he has to depart Australia as a result, he may be separated from his partner, however, the Tribunal is also mindful that the applicant may be eligible to seek other Australian visas in the future. The Tribunal finds that international obligations would not be breached as a result of the cancellation.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The visa in question is a temporary visa but leads to the grant of the permanent visa. To the extent relevant to this or another consideration, the Tribunal accepts that the applicant has strong ties in Australia, including family ties (the presence of his partner) and financial ties (the applicant provided to the delegate evidence of property purchase). The Tribunal also acknowledges that the applicant had completed his study in Australia and had been gainfully employed.
The applicant provided to the Tribunal evidence of his voluntary activities at St Bridgit Church. There is before the Tribunal a character reference from the applicant’s employer, and statements from his academic advisor, family members and others. the Tribunal accepts that the applicant has significant community and family ties in Australia.
Any other relevant matters
The applicant states that there is no risk of him reoffending. He provided statements from relatives who support him (being aware of the conviction) and express the view that he had made a mistake and that he will not reoffend. The applicant’s offending has been described as out of character. The applicant presented several character references and the Tribunal has had regard to these. The applicant also states that he has been working while incarcerated and was regarded as being highly cooperative and his work was considered to be of high standard.
The applicant refers to his attendance at church and his voluntary activities. He states that there is no risk of reoffending and his family and the community will support him. The applicant refers to the report of the Community Corrections officer who found that there was ‘low risk’ of reoffending. The applicant notes that the sentencing judge found special circumstances, being the applicant’s young age, absence of prior convictions, expressed remorse and good prospects of rehabilitation. The magistrate also acknowledged that the money was used for education (and the delegate accepted that over $105,000 of the $150,000 obtained by deception was used towards school fees). The applicant notes that he had returned over $40,000 to the government.
The Tribunal has had regard to the sentencing assessment report prepared by Ms Ulloa Salinas. The applicant also presented a report by a psychologist John Machlin. It sets out the applicant’s personal and educational history. Mr Machlin refers to the circumstances of offending. Mr Machlin states that there is no diagnosis in relation to any mental health condition. Mr Machlin states that there is a very low risk of recidivism.
The applicant notes that the ground for cancellation arises from a single conviction and the fact that he was given an 18 months sentence (with the maximum penalty being 10 years) indicates his offending was at the lower scale. The applicant states that he is genuinely remorseful, he feels ashamed of the crime and does not want to return to prison and cause embarrassment to his family.
The applicant told the Tribunal that he has strong support in the community and his partner told him that if he commits another crime, the relationship will be over and he does not want to lose his partner. The applicant refers to the support from the grand-uncle, who is a member of the catholic community, and other family and community members. He accepts the responsibility for his serious crime and is remorseful.
The applicant refers to the courses he completed while in custody, including workplace health and safety and an addiction course which provided him with skills of managing his behaviour and interactions in the society. Since his release from jail he has been receiving support from the community and through volunteering at church. The applicant states that he never wants to go back to jail and will never commit another offence.
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the applicant’s visa as the applicant held a temporary visa and had been convicted of an offence.
The Tribunal has found that there are strong reasons why the visa should not be cancelled. In particular, the Tribunal accepts that the applicant maintains a genuine relationship with his partner, who is dependent on the applicant emotionally and financially. The Tribunal accepts that, in the circumstances of this case, the existence of the relationship and the partner’s ongoing dependence on the applicant constitute a compelling reason for the applicant to remain in Australia.
The Tribunal also accepts that the applicant supports other family members and volunteers in the community. The Tribunal accepts that he is engaged in full-time employment and contributes to the payment of the mortgage. The Tribunal accepts that if the applicant was not to remain in Australia, his partner’s study opportunity may be affected. The Tribunal accepts that significant hardship would be caused to the applicant and his partner if the visa is cancelled.
The Tribunal acknowledges that an assessment has been made that there is a low risk of the applicant reoffending and the Tribunal accepts the applicant’s evidence that he does not wish to return to jail, lose the opportunities that he has in Australia, lose his relationship and cause embarrassment to those around him. The Tribunal has formed the view that the applicant is genuinely remorseful for his conduct and that there is a low risk of reoffending.
The Tribunal accepts that the applicant has strong links in the community, including his partner and other family members and the Tribunal accepts that his involvement with the family and community activities may prevent the applicant from future reoffending.
Overall the Tribunal has formed the view that there are factors that favour the setting aside of the cancellation. The Tribunal acknowledges that the applicant may be considered to have a substantial criminal record and that he might be affected by the operation of s. 501 in the future. However, these are not matters for the present Tribunal.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.
Kira Raif
Senior Member