de Groot (Migration) - [2021] AATA 4198

de Groot (Migration) [2021] AATA 4198 (26 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Pim Boudewijn Abe de Groot
CASE NUMBER:  2106459
HOME AFFAIRS REFERENCE(S):          BCC2021/732545
MEMBER:Louise Nicholls
DATE:26 October 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made at 4:52 pm 26 October 2021
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – granted in conjunction with application for extension to working holiday visa – criminal conviction, plea of guilty and good behaviour bond – discretion to cancel visa – circumstances of offending and seriousness of conduct – recruited to make online financial transaction – reasonable grounds for suspecting money was derived from unlawful activity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a citizen of the Netherlands and is 22 years of age. He arrived in Australia on as the holder of a Subclass 417 Working Holiday visa on 18 November 2019. He was granted a Subclass 010 (Bridging A) on 5 November 2020 whilst awaiting the outcome of a second Subclass 417 visa application.
While holding the Subclass 010 (Bridging A) visa he was convicted of an offence in the Ayr Magistrates Court in Queensland on 22 February 2021.
On 16 April 2021 the delegate of the Minister for Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) to the applicant. The applicant responded to that notice on 22 April 2021.
On 5 May 2021 the delegate cancelled the applicant’s Subclass 010 (Bridging A) visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been convicted with an offence against the laws of the Commonwealth. The delegate considered the matters put forward by the applicant as to why his visa should not be cancelled but found after weighing all the information available the grounds for cancelling outweigh the grounds for not cancelling the visa.
The offence set out in the notice is “Dealing with Property Reasonably Suspected of being Proceeds of Crime” Ayr Magistrates Court 22/02/2021. The applicant was sentenced to 12 months imprisonment and released forthwith on entering self recognizance $10,000 to be of good behaviour for 2 years. The Tribunal was advised by the Ayr Magistrates Court that the applicant had been charged under section 400.9(1A) of the Criminal Code Act 1995 (CWLTH).
This is an application for review of the cancellation decision made on 5 May 2021.
The applicant appeared to give evidence and present arguments before the Tribunal by teleconference on 5 October 2021. The applicant gave evidence about his background, the circumstances surrounding his conviction and his current situation.
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). 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?
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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43 (oa) is relevant.
Regulation 2.43(1)(oa) prescribes the following as a ground for cancellation:
(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 gave evidence that he had been convicted of an offence in the Ayr Magistrates as set out in the Notice of Cancellation and he agreed that there were grounds for cancellation.
Taking into account the material before the Tribunal and the applicant’s written and oral evidence 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’.
With respect to the matters set out in PAM3 the evidence is as follows.
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.
The applicant travelled to Australia as a working holiday visa holder in 2019. After one year in Australia he applied for a second working holiday visa on the basis that he had completed three months of specified work in a regional area. While awaiting the outcome of his second visa application he was charged with a criminal offence and was convicted in the Magistrates Court in Ayr, Queensland.
The applicant gave evidence that he initially intended to stay in Australia for about 6 months, but he was enjoying farm work so much he decided to stay for the whole year of his visa and apply for a second year on a working holiday visa. He stated that one of his employers with whom he was working in Ayr had offered to sponsor the applicant for a temporary work visa. His employer was aware of his situation and when his visa was cancelled his employer kept in contact with him and offered him his continued support. The applicant provided a letter from another former employer regarding his performance at work and his observations of his work ethic and character. That employer did not make any reference to the applicant’s conviction.
The extent of compliance with visa conditions.
There is no evidence before the Tribunal that the applicant has failed to comply with his visa conditions.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship).
The applicant stated he was living in Queensland and is currently staying in a backpacker’s hostel. He is involved in a serious relationship with a girl from the United Kingdom who is doing farm work in Queensland. If he has to depart Australia, he may be separated from his girlfriend.
He stated if his visa is cancelled, he will not be able to apply for a third year as a working holiday visa holder or to apply for future temporary work visas in the next few years.
Circumstances in which ground of cancellation arose.
The applicant gave evidence that he arrived in Australia in January 2020 and hoped to initially obtain work in hospitality in Sydney. He found work in a restaurant in Pyrmont and liked the work but decided to look for other work in Sydney.
He placed his resume on Seek online and after about five days he was approached by a business which appeared to be based in New Zealand. He provided screen shots of emails sent to him by the purported employer on 19 January 2020 offering him home based employment in an investment business. The business was described as a leader in payment solutions.
The documents show he was engaged as a Customer Support Representative at a business known as iCoin. He was given basic instructions on his role and he was asked to provide his bank account and identity details by email. Essentially his role was to have money deposited into his personal bank account, to withdraw that money and to convert to Bitcoin and then transfer as directed. He would receive a commission for undertaking this transaction.
He stated he was excited by the prospect of doing this work as it was different to the type of work he had done in the past. He was involved in one transaction where funds were transferred to his bank account, he withdrew that money in cash and found the right Bitcoin price, bought Bitcoin and then transferred the bitcoin. He was only ever asked to complete one transaction in January 2020. He claimed he did not sense anything suspicious or untoward.
He was paid $900 for that transaction and was told there would be other transactions in the future but after that transaction he was not asked to complete any further transactions. He also worked as a bartender and waiter in Pyrmont in this time.
He left Sydney in March 2020 for Caboolture in Queensland where he worked on a number of farms. In October 2020 he moved to Ayr where he worked on a number of farms. In December 2020 he was confronted by a Federal Police officer at the local police station in Ayr. The police officer told him he had been involved in a money scam. The applicant claimed he was shocked by the enormity of the scam, having been told that it was an international scam which used malware to take money from various bank accounts and used persons to purchase bitcoin using the stolen funds.[1] He was upset that he had been tricked into involvement in this scam. He realised afterwards he should have paid more attention to the circumstances of the transaction, but he was not initially suspicious but with hindsight he should have looked more into it when he took the job.
[1] “Money mule out on bail” Courier Mail 12 March 2021
He stated he was compliant with the police investigation and provided all the relevant information to the Federal Police. He was represented by a lawyer arranged by Legal Aid Queensland and pleaded guilty. He was sentenced in Ayr Magistrates Court on 22 February 2021 and was given a suspended sentence of 12 months and released on a good behaviour bond. The applicant stated that the magistrate told him that he could not let the offence go unpunished as the general public needed to understand that money laundering was a big problem and it was not acceptable to be involved in these type of transactions.
The Tribunal was advised by the Ayr Magistrates Court that the applicant had been charged under s. 400.9(1A) of the Criminal Code Act 1995 (CWLTH). Section 400.9 (1A) provides:
(1A) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and
(c) at the time of the dealing, the value of the money and other property is less than $100,000.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
….
(4) Absolute liability applies to paragraphs (1AA)(b) and (c), (1AB)(b) and (c), (1)(b) and (c) and (1A)(b) and (c).
(5) This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.
Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4).
The Tribunal notes that in this offence the burden of proof shifts so that a defendant must prove that he or she had no reasonable grounds for suspecting that the money or property was derived or realised from a form of unlawful activity.
The applicant pointed out that after the court heard all the facts it found it suitable to give him a suspended sentence. He claimed that the magistrate realised the applicant did not know that the funds had been stolen or was knowingly involved in an illegal transaction. He claimed the penalty showed that the magistrate accepted this.
Past and present behaviour of the visa holder towards the department.
There is no evidence before the Tribunal of any adverse or uncooperative behaviour towards the Department.
Whether there would be consequential cancellations under s.140.
There are no persons who would be affected by any consequential cancellations.
Whether there are mandatory legal consequences.
If the applicant’s bridging visa is cancelled, he will become unlawful and liable for detention and removal.
If the applicant’s visa is cancelled, he will be prevented from lodging an application for a visa in Australia except for those in prescribed classes. He may also be subject to a period of exclusion for visa grants for three years from the date of visa cancellation.
The Tribunal is satisfied there is no prospect that the applicant will be held in indefinite detention.
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 if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.
The applicant is a citizen of the Netherlands and there is no evidence before the Tribunal which might suggest that cancellation of his visa would result in a breach of Australia’s international obligations. The applicant has given evidence that he does not have any dependent children.
Assessment
The Tribunal has weighed the matters relevant to the consideration of whether the applicant’s visa should be cancelled.
The applicant has been convicted of a Commonwealth offence under the Criminal Code Act 1995 (Commonwealth). The Commonwealth Director of Public Prosecutions website[2] notes that
Section 400.9 of the Criminal Code contains a different type of money laundering offence. This offence applies to dealings with money or property which is reasonably suspected to be the proceeds of crime and does not require proof that the defendant has a particular state of mind about the nature of the money or property.
[2] Money Laundering | Commonwealth Director of Public Prosecutions (cdpp.gov.au) >
In discussing the nature of money laundering the website notes
Money launderers often use the banking system and money transfer services. However they are imaginative and are constantly creating new schemes to circumvent the counter measures designed to detect them.
Money laundering schemes may include moving money to create complex money trails, making it difficult to identify the original source and breaking up large amounts of cash and depositing the smaller sums in different bank accounts in an effort to place money in the financial system without arousing suspicion.
Sentencing guidelines published by the Judicial Commission of NSW[3] note
Any sentence must reflect general deterrence to a very significant degree because, notwithstanding the varying degree of gravity, money laundering is serious criminal activity and justifies severe punishment: R v Huang (2007) 174 A Crim R 370 at [36]; R v Guo (2010) 201 A Crim R 403 at [91], [103]; Majeed v R [2013] VSCA 40 at [39], [44].
[3] >
The applicant has tried to minimise the seriousness of his conduct and claimed that the sentencing magistrate accepted that the applicant was not aware that the transaction involved unlawful activity and money laundering. However, there is no other evidence which suggests that the sentencing magistrate took this view. The applicant gave evidence that in the sentencing remarks the magistrate stated that he considered it was a serious offence and that he had to give a sentence which would act as a deterrent to people who might engage in similar conduct.
If the applicant had no grounds for concern about the nature of the transaction the Tribunal considers that the applicant could have defended the charge on the basis that that he “had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity”. However, he pleaded guilty to the charge. It may be that the applicant was advised to plead guilty on the basis that it was unlikely that he could defend the charge as the onus of proof rested with him rather than the prosecution. Further he may have been advised of the advantages of making an early plea. While it appears the court’s sentence appeared to reflect that the applicant was on the lower end of offending the Tribunal considers the applicant has been found guilty of a serious offence.
The Tribunal accepts that the applicant has been co-operative with the police and the Department and there is no evidence of non-compliance with his visa conditions. It accepts that if his visa is cancelled, he will not be eligible for a third year of a working holiday visa and that the cancellation may have an impact on future visa applications. It also accepts that the applicant will be disappointed as he is enjoying his farm work in Queensland and has formed a relationship with his current girlfriend, another working holiday visa holder from the United Kingdom. In the short term they may be separated but if the relationship is serious, they will have opportunities to continue the relationship when they return to their respective homes in the Netherlands and United Kingdom. The Tribunal accepts that the applicant was only charged in relation to one transaction and the sentence indicates the applicant’s conduct was at the lower end of seriousness of the offence.
However, in weighing all factors referred to above, the Tribunal considers that money laundering offences are serious. The conduct in which the applicant was engaged was part of a chain of conduct in which a criminal syndicate used malware to steal an amount of money from an individual, then transferred that money to the applicant for him to pay that money in the form of bitcoin to the ultimate transferee so that the payment could not be traced or recovered. He was also paid a sum of money to facilitate the transfer. The Tribunal notes that the applicant’s visa is a temporary visa and he would be required to depart Australia at the end of the visa period and that the level of hardship he will suffer in returning to the Netherlands, other than disappointment, will be minimal. He has family in the Netherlands who will be able to provide him with family support on his return. The Tribunal considers the nature of the offence and the lack of significant countervailing factors weigh heavily in finding that the visa should be cancelled.
Considering all the circumstances, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Louise Nicholls
Senior Member