HERMAWAN (Migration)

[2018] AATA 5497

HERMAWAN (Migration) [2018] AATA 5497 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GANANG HERMAWAN

CASE NUMBER:  1804884

HOME AFFAIRS REFERENCE(S):           BCC2017/4517975

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

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 37-year-old national of Indonesia. He first arrived in Australia on a student visa on 30 September 2014. He was nominated as a dependent on an application for Graduate Work Stream (subclass 485) visa lodged by his wife, Ms Selfiana Engelina, on 10 January 2017. He was granted a Bridging Visa A (subclass 010) on the basis of this application. The applicant works as a delivery driver and is still awaiting the outcome of the application for the subclass 485 visa.

3. According to the delegate’s decision record, on 17 November 2017, the applicant was convicted of an offence under the laws of the Commonwealth (‘dealing with property reasonably suspected of being proceeds of crime’). The applicant was subsequently sentenced to 18 months imprisonment to be served by way of an intensive correction order.

   Notice of Intention to Consider Cancellation

4. On 29 December 2017, 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 his 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 ‘he does not fit the profile of a criminal’, he is ‘meek’, he has been significantly impacted by the criminal case against him and his subsequent conviction. He is a skilled person who would like to rebuild his life and career, focus on his marriage and have a child.

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

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

9. It was submitted that having received a non-custodial sentence, the applicant may still be able to fulfil the character requirements for the grant of his subclass 485 visa. Cancellation of the visa will frustrate the orders of the Court and prevent him from fulfilling his obligations under his Court orders.

10. It was submitted that cancellation of the visa would cause the applicant hardship as his immigration status would be rendered unlawful and he would be liable for immigration detention. He has already been punished and the cancellation of the visa would be considered ‘double jeopardy’ as he has already been convicted of the offence. The applicant has obligations to his employer, as well as St Vincent de Paul, where he carries out voluntary community service.  Cancellation of the visa will prevent him from fulfilling his commitments to the Australian community. His wife will also face financial, psychological and emotional hardship if his visa was cancelled.

11. It was submitted that the applicant has been truthful to the Department regarding his conviction and has no adverse immigration history. The applicant does not pose an unacceptable risk of harm to the Australian community as he 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:

    • Community service work instructions
    • National Police Certificate dated 1 December 2017
    • Character reference letter from Paul Stansfield dated 12 January 2018
    • Character reference letter from Chaplain of the Catholic Indonesian Community dated 21 November 2017
    • Applicant’s Curriculum Vitae
    • Psychologist report dated 4 September 2017
    • Response to NOICC dated 11 January 2017
    • Intensive Correction Order from the District Court of NSW

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 his 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 positive attributes, the high esteem he is held in by his colleagues, his membership of the Catholic Indonesian Community and his voluntary work for St Vincent de Paul Society. It was stated that the applicant had trusted his wife’s cousin and did not imagine that he would be ‘tricked’.

16. It was submitted that the criminal conviction that negatively affected the applicant’s visa status will cause detriment to his family and career plans. He was mentally harmed as a result of the conviction. The applicant has been granted a Bridging visa E, which allows him to remain in Australia lawfully. However, the visa prohibits him from travelling outside Australia to visit his family and this would have a detrimental effect on him. Therefore, his bridging visa A should be reinstated so that he can travel whilst waiting for his wife’s 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 his bridging visa A.

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

    • Character reference from the director of Gowa foods dated 7 September 2017
    • Baptism Certificate dated 27 March 2016
    • Character reference letter from the store manager of St Vincent de Paul Society NSW, dated 12 January 2018
    • Character reference letter from Katherine March of St Vincent de Paul Society NSW, dated 27 January 2018
    • Indonesian Police record
    • Certificate III in Hospitality

18. The applicant appeared before the Tribunal on 4 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Engelina. 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 of an offence against a law of the Commonwealth. In his response to the NOICC, the applicant acknowledged that he has been convicted of the offence referred to above. He submitted to the Department an Australian Federal Police 'National Police Certificate' in his name, dated 1 December 2017, certifying his conviction for the offence. At the hearing, the applicant also confirmed that he has been convicted of an offence against a law of the Commonwealth.

23. The Tribunal, therefore, 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 he is employed as a driver in Australia. The applicant told the Tribunal at the hearing that he would like to continue to reside in Australia and to build a business and a life together with his wife here.

26. The purpose of the bridging visa A is to enable the applicant to remain in Australia while his wife’s Graduate Work Stream (subclass 485) visa, in which he is included as a dependent, is being processed. As suggested by the applicant’s own evidence, the substantive visa application remains undecided and he may still be able to fulfil the character requirements for the grant of the subclass 485 visa. Therefore, the substantive visa application will not be affected by the cancellation of the bridging visa A. More importantly, according to his own evidence, the applicant has been granted a bridging visa E. He continues to work and reside lawfully with his wife in the community.  

    The extent of compliance with visa conditions

27. There is no evidence before the Tribunal to suggest that the applicant has not complied with his 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 him hardship. The cancellation of the visa would be considered ‘double jeopardy’ as he has already been convicted of the offence. The applicant has obligations to his employer, as well as St Vincent de Paul, where he carries out voluntary community service.  He needs to remain in Australia to fulfil the requirements of his sentence and his wife will face financial, psychological and emotional hardship if his visa was cancelled.

29. As already noted, the applicant has been granted a bridging visa E whilst awaiting the determination of the subclass 485 visa. He is able to remain in Australia lawfully, to continue to work and to fulfil his obligations to his employer and St Vincent de Paul. He also has the opportunity to fulfil the requirements of his sentence. As both the applicant and Ms Engelina continue to be employed, it is difficult to see how the latter would face financial hardship. As the Tribunal was informed at the hearing, Ms Engelina’s visa has also been cancelled under similar circumstances and the Tribunal is not clear as to how exactly the cancellation of the applicant’s bridging visa A would cause Ms Engelina psychological and emotional hardship.

30. At the hearing, the applicant stated that he has converted from Islam to Christianity and his wife is of Chinese ethnicity. Consequently, it would be hard for him, as well as her, to return to Indonesia. He comes from a traditional family and it would be difficult for him to be accepted. He said his family are currently unaware of his marriage to his wife and his conversion to Christianity. The applicant also stated that the cancellation of his bridging visa A means that he would be unable to travel to Indonesia to visit his family.

31. As it was put to the applicant at the hearing, the cancellation of the bridging visa A will not result in him being required to leave Australia while his other visa application is being processed. Like his wife, he is on a bridging visa E, which means that they are not required to return to Indonesia to manage their relationships with others due to his conversion to Christianity and Ms Engelina’s Chinese ethnicity.

32. The Tribunal found it odd that, on the one hand, the applicant is claiming hardship on the basis that he may have to return to Indonesia as a result of the cancellation of his bridging A visa and, on the other, he is claiming hardship because he is unable to travel to Indonesia due to the cancellation of his bridging A visa. In any event, the Tribunal accepts that the applicant’s father had a stroke two or three years ago and that, at that time, the applicant was no longer able to travel overseas. The Tribunal acknowledges that the cancellation of the applicant’s bridging A visa may cause him a degree of hardship by restricting his ability to visit his family in Indonesia if he wished to do so. The applicant, however, did not travel back to Indonesia following his arrival in 2014 and before he was charged with the offence he was convicted of. He told the Tribunal that whilst he does not have the urge to go back to Indonesia, sometimes he feels the need to do so.

33. Finally, whilst the applicant’s conviction has also carried consequences with respect to his immigration status in Australia, namely the cancellation of his bridging visa A, the Tribunal does not consider that the cancellation of the applicant’s visa amounts to ‘double jeopardy’ as contended by his representative. The applicant is not being tried again on the same charges and his 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 his bridging visa A. The Tribunal has also considered the Psychological Report, authored by Dr Mark Milic, Clinical and Forensic Psychologist, dated 4 September 2017. The report, which appears to have been prepared in connection with the applicant’s sentencing, does not indicate that he has any ongoing psychological or mental health issues and addresses his rehabilitation prospects in the aftermath of the offence.

    Circumstances in which ground of cancellation arose

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

35. In his submissions and oral evidence to the Tribunal, the applicant stated that he had trusted his wife’s cousin, who is an Indonesian national, when she had asked his wife 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 his wife’s cousin had been granted a visitor visa in June 2016 and intended to visit Australia. He also submitted copy of a letter from ML Law Hub addressed to his wife’s cousin, dated 8 February 2016, advising that the settlement of the property the cousin intended to purchase was anticipated to occur in June 2016. It was submitted that the applicant does not fit the profile of a criminal’, he is ‘meek’ and his offending is ‘in the lower end of the scale’, as indicated by his sentence.

    Past and present behaviour of the visa holder towards the department

36. 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

37. 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

38. If the applicant’s visa remains cancelled, he continues to be a holder of a bridging visa E and would be able to remain lawfully in Australia while awaiting the determination of his 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. 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

39. There are no children affected in the current case. As noted earlier, the applicant stated at the hearing that he has converted from Islam to Christianity and his wife is of Chinese ethnicity. He said these circumstances would make it difficult for him to be accepted. Once again, the applicant has been granted a bridging visa E, enabling him to continue to reside in Australia pending the outcome of his substantive visa application. Therefore, the cancellation would not lead to removal in breach of Australia's non-refoulement obligations. 

    Any other relevant matters

40. 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 his visa. The Tribunal accepts that the cancellation of the visa may cause some hardship to the applicant as a result of restrictions placed on his overseas travels. However, on the basis of the evidence before it, the Tribunal is not satisfied that this 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 his bridging visa A will not affect the substantive visa application, which is yet to be determined.

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

   DECISION

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

   Shahyar Roushan
   Senior Member