ENGELINA (Migration)

[2018] AATA 5494

ENGELINA (Migration) [2018] AATA 5494 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms SELFIANA ENGELINA

CASE NUMBER:  1804883

HOME AFFAIRS REFERENCE(S):           BCC2017/4537537

MEMBER:Shahyar Roushan

DATE:30 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 30 October 2018 at 11:35am

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – convicted of an offense – proceeds of crime conviction – double jeopardy – low risk of harm to the Australian community – contribution to the community – decision under review affirmed      

LEGISLATION

Crimes Act 1914, s 20
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a 30-year-old national of Indonesia. She first arrived in Australia on a student visa on 18 January 2011. She returned to Indonesia in 2012 and arrived in Australia again on a student visa on 14 July 2014. She applied for a Graduate Work Stream (subclass 485) visa on 10 January 2017. The applicant included her husband, Mr Ganang Hermawan, in her application as her dependent. The applicant was granted a bridging visa A on the basis of her application. The applicant commenced work as a Marketing Officer at InfoTech Professionals Pty Ltd on 21 February 2017. She is still awaiting the outcome of her application for a Graduate Work Stream (subclass 485) visa.

3. According to the delegate’s decision record, on 29 September 2017, the applicant was convicted pursuant to s.20(1)(b) of the Crimes Act 1914 (‘dealing with property reasonably suspected of being proceeds of crime’) and sentenced to 12 months' imprisonment ‘released forthwith on entering recognizance self $500 to be of good behaviour for 2 years’.

   Notice of Intention to Consider Cancellation

4. On 8 January 2018, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of the bridging visa under s.116(1)(g) and r.2.43(1)(oa) on the basis of her conviction of an offence against a law of the Commonwealth.

5. In a letter, dated 11 January 2018, the applicant’s representative provided a written response to the NOICC.

6. The response referred to the applicant’s upbringing, educational background, employment history and positive characteristics, stating that ‘she does not fit the profile of a criminal’, she is ‘meek’, she has been significantly impacted by the criminal case against her and she has been ‘punished severely’ by being convicted. She is a skilled person who would like to build her life, focus on her marriage and have a child.

7. The response referred to the circumstances of the offence and stated that the applicant’s cousin in Indonesia whom she trusted told her that she had won some money from gambling and that she wanted to purchase a property in Melbourne through cash payments. Her cousin had asked her to pick up the money from the person whom she bought the Australian currency from. The applicant and her husband collected the money from Mascot train station and not long after, the applicant and her husband’s home was raided by police and she was charged and convicted of the offence.         

8. It was submitted that the applicant’s offending is ‘in the lower end of the scale’ and she received a good behaviour bond. She has never been involved in any form of violent or sexual crime and she has no prior convictions.  She was not the ‘mastermind’ of the crime and she was only a courier, who did not know that she was doing something illegal. The applicant is deeply remorseful for what she has done and her sentence has had a significant impact on her.

9. It was submitted that, if the applicant’s visa is cancelled, she would be liable for detention. Having received a non-custodial sentence, she may still be able to fulfil the character requirements for the grant of his subclass 485 visa.

10. It was submitted that cancellation of the visa would cause the applicant hardship. She has already been punished and convicted and the cancellation of the visa would be considered ‘double jeopardy’. The applicant has obligations to her employer, as well as her church, where she carries out voluntary community service. 

11. It was submitted that the applicant has been truthful to the Department regarding her conviction and has no adverse immigration history. The applicant does not pose an unacceptable risk of harm to the Australian community as she would be unlikely to re-offend. In relation to the expectations of the Australian community, it was submitted that the nature of the offence is not such that the Australian community would expect that the person should not hold a visa.

12. The applicant submitted the following documents to the Department:

    • Academic transcript from AICL
    • Diploma Certificate from AICL
    • Letter confirming completion of course requirements
    • Academic transcript from Kaplan Business School
    • Academic transcript from King’s Own Institute
    • Confirmation of Completion letter from AICL
    • Applicant’s curriculum vitae
    • Receipts for allergy testing
    • National Police Certificate
    • Court Order Notice from District Court, Sydney Downing Centre
    • Letter from Corrective Services NSW terminating the applicant’s supervision Character reference letter from Catholic Indonesia Community Chaplain dated 21 November 2017
    • Character reference letter from Mr Herry Herry, dated 22 November 2017
    • Character reference letter from Mr Ashok Reddy Pallae, dated 21 November 2017

13. On 16 February 2018, the delegate cancelled the visa under s.116(1)(g) on the basis that the applicant had been convicted of an offense. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

    Review application

14. The applicant was represented in relation to the review by her registered migration agent.

15. In a submission, dated 9 September 2018, the applicant’s representative essentially reiterated the arguments put forward in his response to the Department’s NOICC. The applicant’s representative stressed the applicant’s good character, the high esteem she is held in by her colleagues and her church community. It was stated that the applicant had trusted her cousin and did not imagine that she would be ‘tricked’.

16. It was submitted that the criminal conviction that negatively affected the applicant’s visa status will cause detriment to her family and career plans. She was mentally harmed as a result of the conviction. The applicant has been granted a bridging visa E, which allows her to remain in Australia lawfully. However, the visa prohibits her from travelling outside Australia to visit her family and this would have a detrimental effect on her. She was also prevented from performing her role at work, which requires her to travel overseas on a regular basis. Therefore, her bridging visa A should be reinstated so that she can travel whilst waiting for her subclass 485 visa to be granted. The ‘standard’ for granting of a bridging visa A and bridging visa E should be applied consistently. If the Minister granted the applicant a bridging visa E, there is no reason to cancel her bridging visa A.

17. On 11 September 2018, the following additional documents were provided to the Tribunal:

    • Letter from King’s Own Institute confirming completion of course requirements
    • PTE results
    • Academic transcript from ECA professional year
    • Diploma Certificate from STIE IBBI, Indonesia
    • Confirmation of employment from InfoTech Professionals Pty Ltd dated 4 September 2018
    • Indonesian Police record
    • Character reference letter from Dr Yeon Kim, King’s Own Institute
    • Psychology report dated 5 September 2017 prepared for the purpose of her sentencing
    • Submission dated 9 September 2018

18. The applicant appeared before the Tribunal on 4 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Hermawan. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

20. 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). 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?

21. 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.

    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))

22. As already noted, the applicant was convicted pursuant to s.20(1)(b) of the Crimes Act 1914. In her response to the NOICC, the applicant acknowledged that she has been convicted of the offence referred to above. She submitted to the Department an Australian Federal Police 'National Police Certificate' in her name, dated 26 October 2017, certifying her conviction for the offence. At the hearing, the applicant also confirmed that she has been convicted of an offence against a law of the Commonwealth.

23. The Tribunal finds that the applicant has been convicted of an offence against a law of the Commonwealth. The Tribunal is satisfied that the ground for cancellation under s.116(1)(g) and r.2.43(1)(oa) 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

24. 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

25. The Tribunal accepts that the applicant travelled to Australia in order to study and work. The Tribunal accepts that she has successfully obtained education qualifications and has secured suitable employment in Australia. The applicant told the Tribunal at the hearing that she would like to continue to reside in Australia and to build a business and a life together with her husband here.

26. The purpose of the bridging visa is to enable the applicant to remain in Australia while her Graduate Work Stream (subclass 485) visa is being processed. The applicant’s evidence to the Tribunal is that her substantive application remains undecided. Indeed, as stated in the applicant’s response to the NOICC, having received a non-custodial sentence, she may still be able to fulfil the character requirements for the grant of his subclass 485 visa. The substantive visa application will not be affected by the cancellation of the bridging visa A. More importantly, according to her own evidence, the applicant has been granted a bridging visa E. She continues to work for the same employer and remain with her husband in Australia.   

    The extent of compliance with visa conditions

27. There is no evidence before the Tribunal to suggest that the applicant has not complied with her visa conditions.

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

28. In the response to the NOICC, it was submitted that cancellation of the applicant’s bridging visa A would cause her hardship. The cancellation of the visa would be considered ‘double jeopardy’ as she has already been convicted of the offence. The applicant has obligations to her employer, as well as her church, where she carries out voluntary community service. 

29. It was also submitted that the cancellation of the applicant’s bridging visa A has affected her ability to perform her role at work, which requires her to travel overseas on a regular basis. As a result, the applicant faces the prospect of losing her employment. In addition, the applicant has been suffering emotional harm for not being able to travel overseas to visit her family.

30. As already noted, the applicant has been granted a bridging visa E whilst awaiting the determination of her Graduate Work Stream (subclass 485) visa. She is able to remain in Australia lawfully, to continue to work and fulfil her obligations to her church and her employer. At the hearing, the applicant stated that she started working as a marketing officer for an education provider in January 2015. In January 2017, she was offered and accepted a full time position. She further stated that her position as a marketing officer requires her to travel overseas to promote educational opportunities in Australia. However, being on a bridging visa E she is not permitted to travel overseas. She stated that she was offered a position as marketing manager by her employer recently, but she was unable to accept the role due to the travel restrictions. The travel restrictions also prevented her from being able to visit her father when he had a heart attack recently, from which he has now recovered.

31. The Tribunal acknowledges that the cancellation of the applicant’s bridging A visa has prevented her from being able to travel for employment purposes or to visit her family and that she has been unable to take up an offer to fill  the position of a marketing manager at her workplace. The Tribunal accepts that this has caused the applicant a degree of hardship. The applicant, however, continues to be employed in the same position. Whilst it was submitted that the applicant was ‘prevented’ from performing her role at work due to her inability to travel overseas on a regular basis, she has been able to travel within Australian when required and to fulfil other responsibilities associated with her position. There was no persuasive evidence before the Tribunal to indicate that the applicant is at risk of losing her job due to her inability to travel overseas.

32. The applicant told the Tribunal at the hearing that, if she were to return to Indonesia, she would find it difficult to find work. In addition, her husband has converted from Islam to Christianity and she is of Chinese ethnicity. Consequently, it would be hard for him, as well as her, to get along with neighbours and other people around them. As it was put to the applicant at the hearing, the cancellation of the bridging visa A will not result in the applicant being required to leave Australia while her other visa application is being processed. Like her husband, she is on a bridging visa E, which means that they are not required to return to Indonesia to search for employment or manage their relationship with others due to her Chinese ethnicity or Mr Hermawan’s conversion to Christianity.

33. The Tribunal has considered the psychological assessment report, dated 5 September 2017 and prepared by Ms Stephanie Bennett, Psychologist, in connection with the applicant’s sentencing. The assessment stated that the applicant had no clinically diagnosable psychological symptomatology at the time of the offence, but she is ‘currently’ presenting with an Adjustment Disorder with mixed anxiety and depressed mood. The assessment stated that if the applicant were to receive a period of community supervision her prognosis would improve. The assessment, as well as the applicant’s evidence at the hearing, referred to ‘heavy’ migraines on a monthly basis, which she started experiencing at the age of 23. The Tribunal accepts that the applicant was impacted psychologically after being charged. She received a non-custodial sentence and has been able to return to her employment and reside in the community. The applicant did not submit any further or more recent medical evidence in relation to her present psychological or physical health or how her health might be impacted as a consequence of the cancellation of the visa.

34. Finally, whilst the applicant’s conviction has also carried consequences with respect to her immigration status in Australia, namely the cancellation of her bridging visa A, the Tribunal does not consider that the cancellation of the applicant’s visa amounts to ‘double jeopardy’ as contended by her representative. The applicant is not being tried again on the same charges and her visa was cancelled as a result of the application of Australia’s migration laws. The Tribunal has already addressed the arguments raised by the applicant in relation to the degree of hardship that may be caused as a consequence of the cancellation of her bridging visa A.

    Circumstances in which ground of cancellation arose

35. The ground for cancellation arises because the applicant has been convicted of offences while holding a temporary visa.

36. In her submissions and oral evidence to the Tribunal, the applicant stated that she had trusted her cousin, who is an Indonesian national, when she told her to collect $500,000 in cash to be used towards the purchase of a property in Australia. The applicant presented evidence to the Tribunal demonstrating that her cousin had been granted a visitor visa in June 2016 and intended to visit Australia. She also submitted copy of a letter from ML Law Hub addressed to her cousin, dated 8 February 2016, advising that the settlement of the property her cousin intended to purchase was anticipated to occur in June 2016. It was stated that the applicant does not fit the profile of a criminal’, she is ‘meek’ and her offending is ‘in the lower end of the scale’, as indicated by her sentence.

    Past and present behaviour of the visa holder towards the department

37. The Tribunal accepts that there is no adverse information in relation to the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

38. There is no evidence before the Tribunal to indicate that there are any persons who would be affected by the consequential cancellations 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

39. If the applicant’s visa remains cancelled, she continues to be a holder of a bridging visa E and would be able to remain lawfully in Australia while awaiting the determination of her substantive visa application. There is no suggestion that the applicant is liable to detention. As already noted, restrictions apply on the applicant’s ability to travel overseas as a consequence of the cancellation. The applicant told the Tribunal at the hearing that remaining on a bridging visa A would assist in expediting the processing of her substantive visa application. However, she also acknowledged that this was purely based on her assumption. There was no persuasive evidence before the Tribunal to suggest that the existing substantive visa application would be adversely affected as a result of the cancellation of the bridging visa A. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention.

    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

1. There are no children affected in the current case. As noted earlier, the applicant stated at the hearing that she is of Chinese ethnicity and her husband has recently converted from Islam to Christianity. She said these circumstances would make it hard for her and her husband to get along with the people around them. Once again, the applicant has been granted a bridging visa E, enabling her to continue to reside in Australia pending the outcome of her substantive visa application. Therefore, the cancellation would not lead to removal in breach of Australia's non-refoulement obligations.  

   Any other relevant matters

2. The Tribunal has considered the applicant’s circumstances. The applicant has been convicted of an offence and the Tribunal has found there are grounds for cancelling her visa. The Tribunal accepts that the cancellation of the visa may cause some hardship to the applicant. However, on the basis of the evidence before it, the Tribunal is not satisfied that the degree of hardship would be severe enough to warrant not cancelling the visa. The Tribunal is mindful that while the applicant wants to remain in Australia, the decision to cancel her bridging visa A will not affect her application for the substantive visa, which is yet to be determined.

3. Having regard to the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

4. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   Shahyar Roushan
   Senior Member