Gonzalez Gonzalez (Migration) - [2021] AATA 4860

Gonzalez Gonzalez (Migration) [2021] AATA 4860 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Edson Daniel Gonzalez Gonzalez
CASE NUMBER:  2014655
HOME AFFAIRS REFERENCE(S):          BCC2020/1802087
MEMBER:Antoinette Younes
DATE:16 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 September 2021 at 10:55 AM
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – supply prohibited drug – consideration of discretion – compelling reason to stay – completion of studies – degree of hardship – circumstances giving rise to the non-compliance – serious offending conduct – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
CASES
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 23 September 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s 116(1)(g) because the applicant has been convicted of offences in NSW. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 9 September 2021 to give evidence and present arguments.
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.
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?
Section 116(1)(g) - prescribed ground
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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant.
Section 116 provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g) a prescribed ground for cancelling a visa applies to the holder.
The prescribed grounds…

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 Gonzalez Gonzalez (Migration)

Details

AGLC: Gonzalez Gonzalez (Migration) [2021] AATA 4860
Case: [2021] AATA 4860
Decision Date: 16 September 2021

CaseChat Overview and Summary

This matter concerned the review of a decision by the Minister to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on the ground that the applicant had been convicted of an offence against a law of the Commonwealth, a State or Territory, as prescribed by regulation 2.43(1)(oa) of the Migration Regulations 1994. The applicant had been convicted in the Downing Centre Local Court NSW on 15 May 2020 of offences relating to the supply of prohibited drugs, for which he received an Intensive Correction Order, supervision, community service, a fine, and a Community Correction Order.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 was made out, and if so, whether the applicant's visa should be cancelled, considering all relevant circumstances and exercising the Minister's discretion. The applicant contended that his intention to complete his studies in Australia constituted a compelling reason to remain, and that he had complied with his visa conditions.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of the specified offences. In considering the exercise of discretion, the Tribunal acknowledged the applicant's stated purpose of undertaking studies in Australia to enhance his career prospects and accepted that he had a compelling reason to stay to complete his current course and potentially pursue further education. The Tribunal also noted the applicant's compliance with his visa conditions. However, the Tribunal concluded that despite these factors, the seriousness of the offending conduct outweighed the compelling reasons for the applicant to remain in Australia.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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?Section 116(1)(g) - prescribed ground 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Section 116 provides:(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: …(g) a prescribed ground for cancelling a visa applies to the holder. The prescribed grounds for cancellation under s 116(1)(g) are found in reg 2.43(1)(oa) of the Regulations, which provides: (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 the following: …(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));… During the first hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. The delegate’s decision record indicates that the Department received information from the Australian Criminal Intelligence Commission indicating that on 15 May 2020, the applicant was convicted in the Downing Centre Local Court NSW of the offences of “supply prohibited drug >indictable & <commercial quantity-T1 and supply prohibited drug >small & <=indictable quantity-T1”. The information indicates that the Court imposed the following penalties:·Intensive Correction Order for a period of 9 months, commencing on 15 May 2020 and concluding 14 February 2021;·Supervision of 9 months, commencing 15 May 2020 and concluding 14 February 2021, supervised by Community Corrections Service;·Community Service Work: 50 hours;·Fine: $1,000;·Community Correction Order: 2 years, commencing 15 May 2020 and concluding 14 May 2022;·Supervision: 2 years, commencing 15 May 2020 and concluding 14 May 2022, and supervised by Community Corrections Service.NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC/Notice) & RESPONSE

Decision

Reasons for decision

Considering the circumstances, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

For those reasons, 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 The applicant was granted the Student visa to enable him to undertake studies in Australia. He came to Australia with the stated main purpose of obtaining education from an English-speaking country to enhance his career prospects in Mexico. The applicant has a Bachelor of Business Marketing from Mexico and came to Australia to pursue marketing and communications studies. The applicant gave evidence and this is supported by information in the delegate’s decision record based on the Provider Registration and International Student Management System (PRISMS), that he is currently enrolled at Macquarie Education Group studying a Certificate IV in Marketing and Communication, leading to a Diploma. The applicant gave evidence that there are 4 terms in the course and that he is in the third term. He indicated that he would like to undertake further studies such as a Diploma and Advanced Diploma of Marketing and Communication in order to improve his prospects of employment in Mexico. In submissions to the Tribunal, it was contended that the applicant has been fully complaint with the visa conditions and that more weight should be given to the applicant’s purpose of stay in Australia and that “the applicant’s intention to study in Australia goes beyond the initial course of enrolment and student visa. It is not uncommon for students in Australia to hold successive student visas in order to complete their intended education plans”. The Tribunal accepts that the applicant travelled to Australia to undertake studies in marketing and communication and that he has completed several units, consistent with his purpose for travelling to Australia. The Tribunal accepts that the applicant is staying in Australia because he wants to complete his studies, which is a compelling reason to stay in Australia. The Tribunal gives weight to this consideration in favour of the applicant. · The extent of compliance with visa conditions There is no evidence of breach of visa conditions. The Tribunal views compliance with visa conditions to be a legitimate expectation and as such the Tribunal gives neutral weight to this consideration.· Degree of hardship that may be caused (financial, psychological, emotional or other hardship)