Ho (Migration)

Ho (Migration) [2019] AATA 4203 (3 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Viet Phat Ho
CASE NUMBER:  1817846
HOME AFFAIRS REFERENCE(S):           BCC2018/1371876
MEMBER:Rachel Westaway
DATE:3 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 03 May 2019 at 4:37pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – convicted of an offence – cultivating a narcotic plant (cannabis) – consideration of discretion – intention to resume studies – severity of the conviction – significant term of imprisonment – serious drug issue within the Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 June 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).
The delegate cancelled the visa under s.116 (1)(g) on the basis that the prescribed ground for cancelling a visa applied to the holder. 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 12 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Ngoc Anh Ho, the applicant’s sister who is an Australian permanent resident.
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?
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(1)(oa) is relevant. This regulation outlines that in the case of the holder of a temporary visa (other than a subclass 050, 051 or 444) the Minister is satisfied that the holder has been convicted of an offence against the 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).
In applying for review of the decision to cancel the visa, the applicant provided the Tribunal with a copy of the delegate’s decision.
Based on the information before the Tribunal, the applicant was convicted on 31 January 2018 with one count of cultivating a narcotic plant (cannabis) and received a 10 month concurrent term of imprisonment at Fullham Correctional Centre in Victoria.
On 8 June 2018 the applicant’s Bridging Visa A was cancelled.
On 31 October 2018 a submission was provide to the Tribunal (Tribunal file, ff:96-107). Of relevance is the following information duplicated from the submission:
iii. Criminal Conviction
In September 2015, Phat and his sister and her family relocated to a shared house at [Address 1], with two other Vietnamese nationals. We are instructed that the house had three bedrooms; Phat’s sister, her husband and their son shared one room, Ahn Nguyen and Thi Nguyen shared another room, and Phat had the last room to himself.
During this period of time, Phat had gotten to know some people, who he met within the Vietnamese community in Melbourne, who were involved with cannabis cultivation as a means of making money. These friends persuaded Phat to help them out with cultivating the cannabis as they told him that good friends helped each other out, and that they would help him out if he ever needed anything in the future. Phat instructs that he was financially supported by his parents and did not need to earn extra cash. Accordingly, his sole reason for being involved was to be a good friend. He instructs that his involvement was limited to attending [Address 2] a number of times to help water the plants and take out the rubbish. He was given a set of keys to access the house. He never harvested or sold the cannabis and never received any money in return for his involvement.
On 21 August 2017, Phat attended [Address 2], to take the bins out from the front yard to the kerb of the street for council collection as he sometimes did. He did not enter the house on that occasion but he did have his keys with him. The police intercepted his car as he was driving away and found the keys to the house. They executed a search warrant of the house and found a number of cannabis plants. They charged him, as well his friends, with:
·     one charge of trafficking a drug of dependence, namely, cannabis;
·     one charge of cultivating a narcotic plant;
·     one charge of possessing a drug of dependence, namely cannabis;
·     possessing lamps, globes and other items relating to the preparation of cultivation or tracking of a drug of dependence or equipment for the purpose of trafficking in a drug of dependence;
·     one county of stealing electricity belonging to United Energy;
·     cultivating a narcotic plant, namely cannabis in a quantity that is not less than a commercial quantity applicable to that plant; and
·     trafficking a drug of dependence namely cannabis or more drugs of dependence namely cannabis in a quantity that is not less than a commercial quantity applicable to that drug or drugs.
On 31 January 2018, Phat pleaded guilty and was convicted by the Magistrates’ Court of Victoria of one charge of cultivating a narcotic plant and sentenced to a term of imprisonment of 10 months minus 163 days of time already served in custody. He was released from custody on 20 June 2018 and was transferred to Maribyrnong Immigration Detention Centre where he stayed for about three and a half months before being transferred to Melbourne Immigration Transit Accommodation, a lower security detention centre, where he now resides.
The applicant attended a hearing at the Administrative Appeals Tribunal on 12 November 2018. The Tribunal acknowledge the detailed submissions made by the applicant and sought to confirm in person with the applicant confirmation pertaining to the convictions.
The applicant confirmed that the convictions are correct and that he had served his term of incarceration and was now in detention pending the outcome of this review.
Given the applicant has confirmed the convictions 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’.
In applying for review of the decision, the Tribunal with a copy of the delegate’s decision Tribunal file, ff 1-4. This is summarised below and the full details are also on the Department file CLFBCC2018/1371876 ff 28-43.
His initial response to the Department pertaining to reasons why he felt the visa should not be cancelled included:
·     He had depression
·      A cancellation ends his chance of completing his studies
·     He has been studying for four years in Australia and it is his main purpose to be here and he wants to use it to apply for a job on return to Vietnam
·     Big hotels have offered him a job on return if he has Australian qualifications
·     He is only half way through his studies and his parents have worked hard and spent a lot of money to facilitate his life and his education
·     He is keen to complete the course as quickly as possible so he can commence his career
·     His parents are sad and disappointed and their health – mental and physical has deteriorated over the silly things he has done
·     He is extremely sorry for the impact on his parents and sister
·     He has had a chance to reflect and learned his lesson and will improve his ethics and achieve good results and make his parents proud.
·     He has undertaken various courses whilst being incarcerated so as to re-engage with university studies,
·     If he returns to Vietnam without a degree it will be like killing his parents and people will laugh at them.
·     He ended his studies in Vietnam and his parents have an expectation he will return with an Australia qualification
·     He is remorseful and regretful and his life will never be the same unless he is given a chance to rectify the mistake
·     The conviction was the biggest mistake of his life and was a result of hanging out with the wrong crowd when his sister departed Australia for a period
·     He foolishly thought he played no part in the business and no one would get hurt
·     He had no intention of disregarding the welfare of the Australian community
·     He was not in his right mind at the time and did not consider the adverse impact on his family’s reputation or the welfare of the Australian community
·     With his sister’s support he has undergone a profound change in mind and attitude since the conviction
·     He has never been involved in prison incidents and always shows respect and encourages good behaviour and volunteers his services as a Vietnamese interpreter for other inmates
·     His studies were able to be deferred and this has given him hope he can complete them on his release
·     He is deeply regretful for servicing time for the offence
·     The prospect of cancelling his visa will shatter his hopes and dreams for the future
·     He will be a good person and study hard if given a second chance.
·     A reference from his case worker David McDonald was also supplied to the Department confirming that the applicant is quiet, co-operative and follows instructions and does what is required of him. It also outlined that the applicant has not been involved in any adverse incidents and he has undertaken many courses – some of which were not required but he undertook them anyway. It also confirmed his urine tests were all negative and results were provided.
·     A Certificate of Attendance at a Prison Legal Education and Assistance project was attached.
·     His COE for a Bachelor degree at Academies Australasia Polytechnic was supplied and results for November 2016 and March 2017 were attached and indicated pass, credit and distinction levels.
·     The applicant also provided documents which the tribunal has also considered and these include kangan Institute results of which all but one withdrawal indicate the applicant achieved a level of competency in his subjects.
The applicant provided a submission to the Tribunal dated 9 August 2018. The submission outlined that the applicant arrived in Australia on 4 August 2013 on a subclass 573 visa. On 18 August 2017 he lodged another visa application for a subclass 500 visa to continue his studies in Australia and was granted a bridging visa A whilst the application was being reviewed. The submission provided confirmation of the applicant’s conviction and sentence and his immigration history including his student visa refusal and also provided reasons as to why the Tribunal’s discretion should be used in favour of not cancelling the applicant’s bridging visa.
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
Mr Ho confirmed in his submission and at hearing his background. He outlined his educational journey and provided a reason as to why he had changed his courses. He explained that he wanted the opportunity to complete his studies in Australia because of the quality of education and his employment opportunities in Vietnam offered by his Uncle.
He outlined that he needed to remain in Australia and the cancellation of his bridging visa would prevent him applying for the next student visa which would enable him to keep studying.
Mr Ho stated he has partially completed a Bachelor degree in Agricultural Economics at the Agriculture University in Vietnam however in his third year out of four he ceased his studies to pursue as a career path. He detailed in his submission and at hearing the courses he has attempted in Australia and those he has completed attributing the non-completion of some to stress and the demands of his studies and being young and away from home and having limited English. He explained his changes from business to accounting as recognition of employment opportunities and then the move to hospitality as further employment opportunities but with his Uncle.
He claims that his uncle in Vietnam has offered him a management position in his hotel upon completion of his tourism studies. He said that his uncle encouraged him to pursue a career in tourism as it is a lucrative industry that offers a high salary and the family needed more people to work as his aunt had been diagnosed with cancer which put the future of the family business in a precarious position. He wanted someone he could trust to manage the family business. His Aunt has passed away and his uncle struggles to manage the business alone and his Uncle has no one with the right qualifications and closeness in the family to keep the business going.
In a letter of support for Mr Ho, his Uncle, Mr Phuc provided a statement dated 11 July 2018. He confirmed the need he has fort Mr Ho to complete his studies in a well-known international school, rather than a local school, and to return to Vietnam to assist him with the family business. He confirmed initial thoughts that he would work in accounting and auditing area but stated that he now needs to work in the area of general management and he desperately needs this help now and when he old and that his role is crucial.
Mr Ho also stated that he needs to stay in Australia to finish his degree as he and his family will be laughed at and it will kill his parents.
He had completed and passed two semesters of the Bachelor degree and on 18 August 2017 lodged an application for a Student (subclass 500) visa to allow him to complete his studies. If all went well with his studies he was due to complete them in November 2019. He was granted a bridging A visa in association with this application.
Mr Ho’s most recent substantive visa was a student visa and the bridging visa under review was applied for in order for him to continue his studies. The evidence before the Tribunal is that the purpose of his travel to and stay in Australia was for the purpose of studying and therefore he has a legitimate reason for travelling to Australia. Furthermore he has provided and the Tribunal accepts that his family want him to complete his studies in Australia to assist with his Uncle’s hotel. However not withstanding all of these reasons put forward by the applicant, the Tribunal notes that the applicant has been in Australia for a significant period of time and has not completed the substantive course he came to study. Whilst the Tribunal accepts the applicant’s explanation as to why he has changed courses or not completed them, he has been in Australia since 2013 with student visas issued for the purposes of completing a bachelor degree and he has yet to complete one. Furthermore, he has had the benefit of this many years in an English speaking environment and whilst an international degree may indeed be preferred, it is not mandatory for the management of a hotel. The applicant has explained his current wishes to complete his Hospitality degree and the reasons why and the impact it will have on him and his family if he is not allowed to stay. The Tribunal accepts these issues raised by the applicant but places only minimal weight on them in consideration against the cancellation of the applicant’s bridging visa because of the seriousness of the crime that Mr Ho was convicted of.
the extent of compliance with visa conditions
Mr Ho provided the Tribunal with a copy of the delegate’s decision. The Tribunal discussed the details contained within the decision regarding the applicant’s periods of non-study and the length of time he has taken to complete a course which is detailed above.
Mr Ho stated that he has not had long periods of non-enrolment which the Tribunal accepts. The Tribunal also accepts that with each change of course he has informed the Department. He accepted that he has not passed units but he claims that he was never issued with any documentation which indicated his course providers were unhappy with his progress. None the less Mr Ho’s lack of academic progress is evident. He was involved in serious unlawful activity which resulted in a prison term. By his own account, he has been in Australia for a long period of time and has not attained a bachelor degree which is the level of academic studies his visa was issued to him for. In consideration of the details above, the Tribunal gives minimal weight in favour of not cancelling the visa given the serious conviction and limited progress he has made since 2013.
degree of hardship that may be caused (financial, psychological, emotional or other hardship)
Mr Ho provided evidence to the Tribunal that the cancellation of his bridging visa will cause him and his family considerable hardship. As outlined prior, the Tribunal accepts that Mr Ho would like to complete his bachelor degree and obtain international qualifications in order to take up a position within his Uncle’s hotel.
He told the Tribunal it is his dream to get a qualification from Australia and his parents dream that he obtain an international qualification and his Uncle has offered him a position in his hotel in Vietnam after graduation and there are no other family members who can undertake this role.
He explained that his parents have spent considerable amounts of money in supporting him to come to and stay in Australia to study. He explained that shame and embarrassment would be brought upon his family.
The Tribunal notes that Mr Ho claims to be seen as his parent’s financial investment for the future and that the cancellation of his bridging visa limits his ability to obtain a further visa to study in the near future and build a career for himself and one which would support not only his parents but assist his Uncle as well.
The Tribunal accepts that Mr Ho’s family would have been extremely upset and that his mother has been unwell and this had added additional pressure to her and that the applicant’s father has then needed to take time off work to look after her and the family. The Tribunal has also taken into consideration Mr Ho’s claims that his uncle will not be able to leave his lucrative business in the hands of an unqualified person and the employees in his hotel will not look upon him with respect. Further that his uncle will continue to experience ongoing stress and pressure from not having a trusted member of the family to assist him with managing and operating the business, particularly as his wife has now passed away.

The Tribunal accepts that family members will suffer some emotional and psychological hardship and feelings of failure given the disappointing situation a cancellation of a visa would bring. The Tribunal accepts Mr Ho’s evidence that both he and his family including his Uncle may suffer some financial and emotional hardship. It is disappointing for the applicant and his family given the period in time in which he has been in Australia that he will not have obtained a bachelor degree. However the Tribunal finds that the applicant’s criminal conviction is particularly serious with a significant period of incarceration attached to it indicating its seriousness. There is no reason why the applicant would need to disclose his situation and visa history to people in Vietnam or any reason why Mr Ho’s family would need to. This does not diminish the disappointment, financial hardship and psychological implications of the cancellation and the Tribunal gives this some consideration.
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
Mr Ho outlined in his submission that he came to know people in the Vietnamese community in Melbourne, who were involved with cannabis cultivation as a means of making money. They asked him to assist and his job was to help water the plants and take out the rubbish at the property where the plants were grown. They encouraged him to do this by telling him that “good friends helped each other out, and that they would help him out if he ever needed anything in the future”. He claims he assisted them not for cash but to be a good friend. He confirmed he had keys to the house but did not harvest or sell the cannabis and never received any money in return for his involvement. He was arrested after the police intercepted his car following a visit to the house. Mr Ho and his friends were charged and he pleaded guilty and he was convicted a received a prison term of ten months. This was the applicant’s first offence.
The Tribunal places considerable weight on the conviction and prison term. It accepts that the applicant may not have been motivated by money but by friendship, youth and possibly loneliness or a need to feel included however the Tribunal gives no weight to this.
The applicant has acknowledged the conviction and has shown genuine remorse. It accepts that this is the first conviction the applicant has he is young and claims to have been influenced by a desire to be accepted by friends.
The Tribunal has considered the sentence and the applicant’s submission that this is at the lower end of the sentencing range which Mr Ho claims the Tribunal should consider indicates the Courts view that his likelihood to engage in criminal behaviour in the future is low and that the cultivation was not for a purpose related to trafficking.
The applicant engaged in an illegal activity of his own will which consequently led to a conviction and significant term of imprisonment. The circumstances were not outsides of the applicant’s control. Whilst the Tribunal accepts that there are varying ranges in sentencing and varying degrees of seriousness of convictions, the applicant was on a visa and participated in the unlawful cultivation of cannabis. The general community has a low tolerance for drugs which are seen to be a significant cause for concern for many Australians. As such, the Tribunal places minimal weight on the circumstances in which the ground for cancellation arose in favour of the applicant.
past and present behaviour of the visa holder towards the department
The applicant has been engaged and responsive to the Department and the Tribunal in his dealings. However in consideration of the nature of the breach and the significance and seriousness of the conviction, the Tribunal gives this minimal weight towards not cancelling the applicant’s bridging visa.
whether there would be consequential cancellations under s.140
There is no evidence to suggest that the applicant’s visa is connected to anyone else. The Tribunal gives this consideration no weight.
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
The Tribunal acknowledges that the legal consequences of affirming the decision to cancel Mr Ho’s bridging visa would be that a s48 bar will prevent him from making a valid application for any visa except for those prescribed under r.2.12(1). The Tribunal notes that Mr Ho is currently in detention and if he does not pursue any appeal or other application, he will be required to leave Australia.
The exclusion period arises by reason of Public Interest Criterion 4013 under schedule 4 of the Regulations. Mr Ho falls within the scope of subclause 4013(2) because his visa was cancelled under s 116 of the [Act]. Public Interest Criterion 4013 is an eligibility requirement applicable to all relevant temporary visas that the applicant may seek to apply for to return to Australia, such as a further Student or Visitor (Class FA)(Subclass 600) visa. This means that any temporary visa application lodged by him within three years of the cancellation will be refused unless the conditions for waiver under the criterion are found to be satisfied and the criterion is waived.
The Tribunal accepts that the affirming of the cancellation will not only prevent Mr Ho from having his student visa application assessed but may prevent him from attempting to resume his studies in the future. It will also act to prevent Mr Ho from visiting his close relatives in Australia, namely his sister and her family.
Mr Ho was on a bridging visa as he had applied for a Student (subclass 500) visa which was was subsequently refused because he did not satisfy Public Interest Criterion 4013 and the Department was not satisfied that compassionate and compelling circumstances existed to justify a waiver of PIC 4013. The applicant told the Tribunal that this matter was before the AAT and that if the Tribunal sets the cancellation decision aside then the decision to refuse his Student (subclass 500) will not be set aside by the AAT (differently constituted) as it will no longer continue to be affected by PIC 4013. The applicant in his submission argues that he has been sufficiently penalised by the criminal law system and his sentence and time in detention and the uncertainty he faces and that an unfavourable decision will result in him being detained under s 189 of the Act while he awaits a decision pertaining to his Student visa refusal. He will be required to depart Australia or be removed under section 198 of the Act and face a three year ban as discussed above.
The Tribunal accepts that Mr Ho is seeking to have a bridging visa reinstated in order to apply for another student visa and the legal consequences of a cancellation prevent this. However, even if the Tribunal were to remit the decision to refuse Mr Ho a student visa, he may well need to be accessed against other criteria so the outcome is speculative. The Tribunal does accept that the applicant has been penalised for his criminal activities, this is the consequences of unlawful activity and the cancellation of the bridging visa and the refusal of the student visa is a consequence of that too. The Tribunal acknowledges that this seems like a greater punishment than an Australian citizen would receive however the consequences emanate from two different jurisdictions. The Tribunal places some weight on this in favour of the applicant.
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
Mr Ho confirmed he does not have any children and he does not claim that Australia’s non-refoulement or any other international obligation would be breached by the ongoing cancellation of his bridging visa.
The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of Mr Ho’s bridging visa.
any other relevant matters
Mr Ho has presented evidence to indicate he is of good character and that the conviction he has was out of character and that he has acted with genuineness and maturity. His submissions outline that he has helped to translate and interpret for non-English speaking Vietnamese detainees and volunteered as a barista to make coffee for other detainees. He also made coffee to sell to the facility staff members and the money earned from selling the coffee was donated by the detention centre to a children’s hospital.
He has previously attended a Buddhist temple about twice a month and donated money to the temple on each occasion. Whilst in detention, he has remained in contact with Buddhist monks and listens to their teaching to provide a positive influence. He has volunteered his time and received a letter of reference from Venerable Thich Thien Tam of Hoa Nghiem Buddhist Temple dated 16 August 2018
He has received references to indicate he is respectful to others and cooperative with facility staff and has not been involved in any incidents and has enrolled in self development programmes when he was incarcerated and tried to use his time productively.
He has indicated has a strong network of Australian citizen and permanent resident family and friends who care deeply about him and who are happy to provide him with whatever support he required for the remainder of his time in Australia and he has supplied letters of support attesting to his character and offering support.
Mr Ho’s sister, her husband and child live in Australia. A letter of support was provided by his sister and she also attended the hearing as a witness. She confirmed that she is able to provide him with whatever support he needs.
He has asked the Tribunal to consider that he has never been in trouble before and when in criminal and immigration detention and has maintained an excellent record of behaviour and participated in programs and short courses such as Anger Management Program, Problem Gambling Program, Prison Legal Education and Assistance Project Court Readiness Program, Certificates I and II in Cleaning Operations, Certificates I and II in Spoken and Written English, Certificate I in Information, Digital Media and Technology, Certificate III in Micro Business Operations, Course in Initial General Education for Adults, Food Safety and Certificate I in Access to Vocational Pathways. He has also volunteered as a unit cleaner and was given access to restricted areas that other inmates were not able to access. He was given a reference from Mr David Macdonald, a Correctional Officer at Fulham Correctional Centre, dated 13 June 2018, and stating that Mr Ho is quiet, co-operative and respectful, follows instructions and always does what is required for him and that he was subjected to urinalysis tests which have all proved to be negative. He provided a reference from Ms Robyn Stanton-Long, from Kangan Institute, which was a glowing reference and his academic results indicate that he has been able to achieve marks at a distinction level at times.
The Tribunal asked Mr Ho why he could not study his course in Vietnam and he stated that the quality of education is far better in Australia. When asked why when working for his Uncle, does he need a degree and he and his sister said that jobs are hard to find in Vietnam and his Uncle requires it. There are many multinationals investing in Vietnam and he will have a better chance with a degree from Australia to ensure his career is solid. The Tribunal does not accept that Mr Ho is limited to only obtaining suitable hospitality qualification in Australia but accepts that a western education may well be considered better and particularly in an English speaking environment and that this may give him an additional advantage. However, the Tribunal does not accept that his future depends on his bachelor degree.
The applicant has stated that he does not know what he would do if he had to return to Vietnam. The applicant has undertaken many courses and whilst he has not completed these, as he has stated he felt in some instances that he has sufficient knowledge and moved to another course. Furthermore the applicant’s uncle and his father have businesses which the Tribunal is not convinced he could not obtain employment from however it may not be at a general manager level.
The Tribunal has considered the other matters raised by the applicant at hearing and his submissions. The Tribunal accepts that the applicant is remorseful and that he has a strong network of support that are prepared to care for him. The Tribunal accepts the references provided and that applicant’s voluntary work and his initiative for undertaking courses. However, these other factors do not outweigh what the Tribunal considers a significant conviction and as such the Tribunal only gives these factors some weight towards not cancelling he visa.
Conclusion
The Tribunal has weighed up the many factors set out in policy and addressed by the applicant, his representative and sister. The Tribunal acknowledges that the applicant appears to want to genuinely continue his studies and his behaviour and actions to date are positive. It also accepts there are serious consequences that would flow from the cancellation of his bridging visa. However, the Tribunal has weighed this up against the severity of the conviction and the serious drug issue within the Australian community. The involvement in the cultivation of drugs impacts ultimately on many people within the community and is a blatant disregard for Australia’s laws. The Tribunal concludes that the consideration that weighs in favour of the ongoing cancellation of Mr Ho’s bridging visa, being the circumstances in which the cancellation of his visa arose, outweighs the considerations that weigh against the cancellation of Mr Ho’s visa, including the purpose of his travel to and stay in Australia, his compliance with his visa conditions, the degree of hardship that cancellation may cause him and his family and the mandatory legal consequences of cancellation for him.
Considering the circumstances as a whole, 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.
Rachel Westaway
Senior Member

[2019] AATA 4203

3 May 2019

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

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