Gonzalez Gonzalez (Migration)

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 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
On 4 September 2020, the Department sent to the applicant a NOICC based on the above convictions which suggested that s 116(1)(g) is enlivened.
On 10 September 2020, the applicant responded to the NOICC as follows:
·   He acknowledges the seriousness of his conduct. The Court did not impose a custodial sentence. The applicant is a person of excellent character with no prior convictions. The applicant’s former employer attests to his good character. His behaviour was “grossly out of character” and is attributable to anxiety and depression.
·   During the period leading up to the offence, the applicant had been struggling with increased stress and depression, causing him to act recklessly. The anxiety and depression were due to the pressures of performing well in his studies. The applicant has worked hard and saved money for his education in marketing and communications in Sydney.
·   He was cooperative when arrested by the police and surrendered the illicit drugs voluntarily and apologetically.
·   Section 501(6)(c) of the Act states that a person will not meet the character test if the person is ‘not of good character’ having regard to their past and present criminal and/or general conduct. Section 501(6)(d) of the Act provides that a person does not pass the character test if there is a significant risk.
·   He would suffer significant financial, emotional, and psychological hardship. Mexico presents a significant risk in terms of COVID-19. Mexico ranks at number in the world for most active cases.
The applicant provided documents in support to both the Department and the Tribunal, including submissions, a former employer reference letter, the applicant’s CV and articles relating to the COVID-19 pandemic in Mexico.
During the hearing, the applicant agreed that he has been convicted and sentenced as outlined above. The Tribunal referred to the submissions relating to s 501 and explained to the applicant that his visa was cancelled under s 116(1)(g) and not s 501. The Tribunal indicated that the Tribunal must accept the findings of the Court and that the convictions indicate that the ground for cancellation appears to exist.
The Tribunal advised the applicant that the Tribunal considered the offences to be serious. The applicant apologised for his behaviour and said he is aware of the consequences.
There is no dispute that the applicant has been convicted of offences against laws in NSW. Therefore s 116(1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by reg 2.43(1)(oa).
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)
The applicant is now 35 years old. He is single and has no children or partner. His parents and brother live in Mexico. In submissions, it was noted that the applicant has formed friendships and relationships that he considers to be significant.
The Tribunal asked the applicant about the claimed depression and anxiety. The applicant stated that he has been talking with a doctor in Mexico who is also a friend. He said he intends to seek in-person assistance from a health practitioner in Australia once the lockdown due to COVID-19 is resolved. In submissions, it was noted that the applicant has made personal commitments to improving his mental health and that his sentencing is a sufficient deterrent in respect of any risk of the applicant reoffending. The Tribunal finds it hard to accept the applicant’s claimed commitment to improving his mental health; his evidence that in-person assistance has not been sought due to COVID-19 restrictions, although understandable, it does not explain why he has not sought assistance from health care providers via the telephone or other means during the COVID-19 restrictions in NSW.
The submissions relating to ‘risk’ are more relevant to ss 501 and 116(1)(e) cancellations. Nevertheless, to address this claim, the Tribunal observes that the term ‘risk’ has been the subject of judicial consideration, mostly in relation to ss 501 and 116(1)(e). In Gong v Minister for Immigration and Border Protection[1], Judge Smith held that while the provision did not require there to be any solid or certain foundation before the cancellation power can arise, the decision to cancel had to be based on legally reasonable inferences: at [41]. In Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2], the Court observed that the concept of “risk” has an element of futurity to it and that reliance on past offending alone may not be sufficient to justify cancellation of the visa. The Department’s procedural guidelines concerning visa cancellation under s 116(1)(e) reiterate that the term ‘risk’ is not defined in the Act and is by its very nature speculative and uncertain.
[1] Gong v Minister for Immigration and Border Protection [2016] FCCA 561.
[2] Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 5 August 2020.
The Tribunal observes that the applicant has committed serious drug-related offences whilst the holder of a temporary visa and within about a year of his arrival in Australia. The Tribunal is of the view that it is plausible that there is a risk of him re-offending, despite his contentions, among other things, that the sentencing is a sufficient deterrent in respect of any risk of him reoffending. Sentencing can be a deterrent in some cases but not in all.
In submissions, it was contended that not being able to complete his studies would cause the applicant significant hardship and needs to be considered in the context of obtaining qualifications from an English-speaking country such as Australia. It was further submitted that the situation of COVID-19 in Mexico poses heath and employment hardships. While the situation in NSW regarding COVID-19 has worsened recently, the Tribunal gives some weight in the applicant’s favour as far as the situation regarding COVID-19 in Mexico is concerned.
The Tribunal acknowledges that the cancellation of the applicant’s visa has the potential to cause the applicant further and/or worsening of mental health issues, and could result in hardships including psychological, financial, employment and emotional. The Tribunal accepts that cancellation would disrupt the applicant’s studies in Australia and that there might be challenges for the applicant in being able to complete his studies in another English-speaking country outside of Australia.
The Tribunal gives weight to this consideration in the applicant’s favour.
· Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the cancellation arose were as a result of the applicant being convicted of several offences. As outlined above, the Tribunal takes the view that the offences are serious.
The applicant has acknowledged the seriousness of the offending and has apologised for his conduct. He contended that he has no prior convictions, he is a person of excellent character, his behaviour was “grossly out of character” and is attributable to anxiety and depression, he cooperated with the police, and he does not pose a risk of re-offending. The applicant noted that his former employer attests to his good character. In the course of the hearing, the Tribunal asked and the applicant confirmed that his former employer who provided the refence letter is not aware of the convictions, which means that the Tribunal can place limited weight on the letter. It was submitted that during the period leading up to the offence, the applicant had been struggling with increased stress and depression, causing him to act recklessly. The anxiety and depression were due to the pressures of performing well in his studies.
The Tribunal has noted the applicant’s explanations and it is plausible that the applicant had been stressed and depressed. Without intending to be harsh, it is not persuasive, however, to contend that the applicant acted recklessly as a result. The Tribunal accepts on the evidence that he has no prior conviction but the applicant has been convicted of drug offences, which the Tribunal considers to be serious.
As mentioned earlier, the submissions relating to risk are more relevant to ss 501 and 116(1)(e), specifically, whether the power to cancel is enlivened – which is not the case here as the visa was cancelled under s 116(1)(g). The Court’s finding is that the applicant had committed the offences with which he was charged. The Court imposed a sentence which the Court considered to be appropriate. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural AffairsvSRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures, and are not for review by an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…
Although there are explanations for the applicant’s conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond his control. Moreover, it is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions. The Tribunal is of the view that it is reasonable to assume that the Court took all relevant matters into account.
The Tribunal considers the applicant’s offending conduct to be serious.
The Tribunal gives significant weight to this consideration in favour of cancellation.
· Past and present behaviour of the visa holder towards the Department
The applicant responded to the matters raised in the NOICC.
The Tribunal gives this aspect weight in favour of the applicant.
· Whether there would be consequential cancellations under s 140
There is no evidence of consequential cancellation under s 140.
The Tribunal gives this consideration weight in favour of cancellation.
· Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. The applicant would also be impacted by s 48 of the Act, which means that he could face difficulties in applying for certain visas in Australia. He will also be subject to PIC 4013.

In submissions, it was contended that there is a punitive element to cancellation and that it is contrary to the doctrine of double jeopardy. The Tribunal is of the view that although there are potential adverse consequences, the visa cancellation scheme is not intended to be punitive; it is intended to, among other things, maintain the integrity of the migration program and to ensure that visa holders comply with Australia’s laws – a legitimate expectation. Moreover, cancellation of a visa is an entirely different process to that of the criminal justice system so it is difficult to see how double jeopardy is relevant in this case.
The Tribunal considers that, in the applicant’s case, potential detention, removal from Australia, the impacts of s 48 and the PIC 4013 bar are intended legislative consequences.
The Tribunal gives this consideration neutral weight.
· 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 before the Tribunal that in the case of cancellation, there would be a breach of any of Australia’s international obligations, including non-refoulement.
The Tribunal gives this aspect neutral weight.
· If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Student visa is not a permanent visa. The Tribunal has dealt with the applicant’s circumstances under separate considerations.
· Any other relevant matters
The applicant made submissions essentially contending that the delegate had failed to consider relevant matters and/or give considerations appropriate weight. The Tribunal notes those submissions and although the Tribunal gives regard to the delegate’s assessments, it is not bound by them. The Tribunal is independent and must reach its own conclusions based on its own assessments.
There are no other relevant matters.
CONCLUDING REMARKS
The Tribunal has carefully considered the material before it independently and cumulatively. The Tribunal is satisfied that on balance, the considerations favourable to cancellation outweigh those in favour of the applicant. The considerations favourable to the applicant relate to his own circumstances, such as a degree of hardship, but those personal consequences do not outweigh those in favour of cancellation; the applicant has committed serious offences whilst the holder of a temporary visa and within about a year of his arrival in Australia.
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 Younes

Senior Member

[2021] AATA 4860

16 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice