Ken (Migration)

[2019] AATA 3537

Ken (Migration) [2019] AATA 3537 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sovanthan Ken

CASE NUMBER:  1816595

DIBP REFERENCE(S):  BCC2017/4980316

MEMBER:Kira Raif

DATE:10 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 10 July 2019 at 7:38am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – ground for cancellation – incorrect information on Incoming Passenger Card – failure to declare prior criminal convictions – consideration of discretion – immigration clearance based on incorrect information – deliberately withheld information – other instances of non-compliance – best interest of child – risk of drug relapse – considerable degree of hardship – length of time in Australia – strong family ties – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 100, 102, 107, 109, 111, 166
Migration Regulations 1994 (Cth), r 3.02

CASES
MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of Cambodia, born in January 1990. He was granted the Return (Residence) Class BB visa (RRV) on 12 July 2012. On 10 April 2018, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that the applicant did not comply with s.102 of the Act. The applicant provided his response to the NOICC and on 30 May 2018, the applicant’s visa was cancelled under s.109 of the Act. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer (Kampuchean/Cambodian) and English languages. 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 set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the notice comply with the requirements in s.107? 

6. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

7. In the Tribunal’s view, the NOICC contains sufficient particulars to enable the applicant to identify and address the issues and the applicant’s response to the NOICC indicates that he understood the issues that arose. The Tribunal is also satisfied that the delegate had reached the necessary state of mind to engage s.107. The Tribunal finds that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

8. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.102 of the Act.

9. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information:

   a.The applicant sponsored his partner for a Partner visa and provided his National Police Certificate dated 24 June 2017 in relation to that application. The Certificate contains the following information

Court Date	Offence	Court Result
31/08/16	Drive Motor vehicle during disqualification period Possess Prohibited drug (2 charges)	Fined $1,000, license disqualified for 2 years Convicted on each charge. 12-month good behaviour bond
26/04/16	Possess prohibited drug	Convicted. 12-month good behaviour bond. Fined $500
26/04/16	Drive motor vehicle during disqualification period	Fined $1,000. License disqualified for 12 months
16/02/16	Drive motor vehicle during disqualification period	Fined $1,000. License disqualified for 12 months
17/12/15	Possess prohibited drug (2 charges)	Convicted. 18-month good behaviour bond
21/09/15	Possess prohibited drug	Fined $750
17/08/15	Drive motor vehicle while license suspended	Fined $700. License disqualified for 12 months
02/12/14	Possess prohibited drug	Fined $750
07/10/14	Possess prohibited drug	Fined $300
15/05/12	Aggravated break and enter and commit serious indictable offence in company	Imprisonment for 9 months. Sentence suspended
11/05/12	Possess housebreaking implement, break and enter etc. Steal (4 charges)	Convicted on each charge. Good behaviour bond for 12 months
27/09/11	Aggravated break and enter and commit serious indictable offence in company	Imprisonment for 15 months, sentence suspended
15/03/11	Break and enter house, steal (4 charges)	On each charge imprisonment for 12 months, sentence suspended
15/03/11	Possess housebreaking implements	Imprisonment for 8 months, sentence suspended
15/03/11	Make / furnish a statement which is false / misleading (12 charges)	Convicted on each charge. No further penalty imposed.

b.Since the first  conviction in 2011, the applicant has entered Australia on four occasions, on 26 July 2012, 17 January 2013, 17 April 2014 and 25 March 2017. On each entry, the applicant completed an Incoming Passenger Card (IPC). On each card, the applicant answered ‘no’ in response to the question ‘do you have any criminal convictions?’.

1. In his written response to the NOICC and his evidence to the Tribunal, the applicant explained that he could not understand some of the questions clearly so he answered ‘no’. The applicant acknowledges that he answered the questions incorrectly. In oral evidence, the applicant also referred to his lack of English and stated that he believed the word ‘conviction’ to mean ‘charge’. The Tribunal is mindful that in accordance with s.100 of the Act, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. Further, s.111 provides that s.109 applies whether the non-compliance was deliberate or inadvertent.

2. Having regard to the information in the primary decision record and the applicant’s evidence to the delegate and the Tribunal, the Tribunal finds that the applicant has multiple criminal convictions. The Tribunal finds that by stating ‘no’ in response to the questions about his criminal convictions on the four separate IPCs, the applicant gave answers that were incorrect. The Tribunal finds that there was non-compliance with s.102(b) by the applicant. The Tribunal finds that there was non-compliance with s.102 by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

3. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

4. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994 (the Regulations). Briefly, they are:

   The correct information

5. The correct information is that the applicant has several convictions in Australia.

   The content of the genuine document (if any)

6. This is not relevant in the present case.

   Whether the decision to grant a visa or immigration clear for the visa holder was based, wholly or partly, on incorrect information or a bogus document

7. Section 166(1)(b) of the Act requires a non-citizen to provide information required by the Act or the Regulations and r.3.02(1)(b) of the Regulations provides that a passenger card for a person entering Australia must include a question about criminal convictions.

8. According to the primary decision record, the applicant had been convicted of multiple offences. The Tribunal finds that the decision to immigration clear the applicant was based, partly, on the information provided on the IPCs about the applicant’s convictions. It is not necessary for the Tribunal to decide whether the applicant would have been immigration cleared, had the correct information been disclosed.

   The circumstances in which the non-compliance occurred

9. The applicant stated in his response to the NOICC and his evidence to the Tribunal that he did not fully understand the question on the IPC. In his submission to the Tribunal of 4 July 2019, the applicant also states that he had limited English reading and writing skills and no formal education in Australia. He states that he filled in the IPC together with his wife and had limited understanding of English and misunderstood the word ‘convictions’ as outstanding charges. In his declaration to the Tribunal, the applicant also states that he believed the word ‘conviction’ meant ‘charges’.

10. The Tribunal does not accept that evidence. Firstly, the applicant has been living in Australia since 2007 and refers to his employment in Australia and his settlement in the Australian community. Despite the lack of any formal education, the Tribunal does not accept that in such circumstances, the applicant would not be aware of the meaning of the term ‘conviction’. The applicant’s evidence to the Tribunal is that in most of his criminal proceedings he was not assisted by an interpreter, which also suggests that the courts assessed him as being reasonably proficient in English. Secondly, the question on the form is very unambiguous and without any complexity: ‘do you have any criminal convictions?’. It is difficult to see how that question could be misunderstood. There is certainly nothing in that question to support an interpretation that the term ‘convictions; relates to outstanding offences (which would not be referred to as convictions). The Tribunal is of the view that having had several convictions, the applicant would have been reasonably familiar with the criminal justice system and its terminology and well aware that he had criminal convictions. Thirdly, the primary decision record indicates that the applicant did answer questions about foods and other items he was bringing to Australia. The Tribunal does not accept that the applicant was capable of understanding that question but not the simple question about his convictions. In the Tribunal’s view, the applicant had deliberately withheld information about his convictions in order to ensure his entry to Australia.

    The present circumstances of the visa holder

11. In his response to the NOICC, the applicant refers to his present employment at Peppercorn Food company, where his wife also works. He told the Tribunal that he has recently commenced another job. The applicant states that he has been married since 2013 and has a five-year-old child.  The applicant refers to having a support network in Australia, which would not be available to them overseas because his parents and siblings live in Australia.

12. The applicant provided to the Tribunal a number of declarations concerning the family’s present circumstances. The declaration from his partner outlines her relationship with the applicant and she outlines the reasons why she wants to remain in Australia with the child.

13. During the hearing, the applicant provided to the Tribunal a statement from Dr Bateman dated March 2017. It indicates that the applicant had an opiate addiction and has been prescribed medication. The applicant told the Tribunal that he continues to take the medication and has not been using drugs since 2017. He continues to see Dr Bateman every month. The applicant confirmed that he has not had any convictions since 2016.

14. The applicant states that he is committed to being a good father, a good role model to his child and a good citizen. He is saving money and they plan to purchase their own property. The applicant states that if he is permitted to remain in Australia, he plans to undertake a TAFE course to improve his English.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

15. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the Act other than the multiple breaches of s.102 in relation to the IPCs.

    Any other instances of non-compliance by the visa holder known to the Minister

16. The primary decision record indicates that the applicant applied for an RRV in July 2012. Question 16 of the form relates to an applicant being sentenced to a term of imprisonment of 12 months or more. The applicant stated ‘no’ in response to that question. Two of his convictions, dated 27 September 2011 and 15 March 2011, resulted in imprisonment for 12 months or more. The applicant explained to the Tribunal that he only spent a few weeks in prison so he did not believe it applied to him. The applicant said that he did not have an agent helping him with the form. The Tribunal finds that the applicant completed the form in relation to the RRV in a way that incorrect answers were given, contrary to s. 101 of the Act.

    The time that has elapsed since the non-compliance

17. The first incorrect answer on the IPC was provided in July 2012 and the last in March 2017. Seven years has passed since the first instance of non-compliance and a little more than two years since the last instance of non-compliance.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

18. There are no other known breaches of the law.

    Any contribution made by the holder to the community

19. The applicant refers to his employment and payment of taxes and making contributions to his son’s school.

20. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

21. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may be an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention, although he may be subject to an exclusion period in relation to some visa applications. There is no suggestion that the applicant will be indefinitely detained. If the applicant is not a permanent resident, he may not be able to remain as a sponsor for his wife’s and child’s visa.

    Whether there would be consequential cancellations under s.140

22. The applicant claims that if his visa is cancelled, the visas held by his wife and child would also be cancelled.

    Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child   

23. The applicant’s immediate family live in Australia. He told the Tribunal that his parents are in Sydney and his three siblings reside in Australia. His two siblings live nearby and his parents have a close involvement with the upbringing of his son. The family unity principles would be met by the applicant’s continuous residence in Australia.

24. The applicant has a minor child living in Australia. The applicant states that the child is used to living in Australia and has started school and if his visa is cancelled, the child would be affected as the child would be required to leave Australia, despite starting school and forming friendships in Australia and being accustomed to life in Australia. The applicant states that his child does not speak Khmer well and would find it difficult to adapt.

25. In his evidence to the Tribunal, the applicant states that he is fearful that he would succumb to the drug addiction if returned to Cambodia and may end up dead. The applicant refers to the support network he has in Australia, including family, friends and community support programs and the financial support he receives from his parents. The applicant states that if he and his family were sent back to Cambodia, the family unit would break down and the child may be exposed to significant harm in the event of his relapse and there would be no support. 

26. The applicant refers to the Convention on the Rights of the Child and submits that it is in the best interests of the child that the family be allowed to remain in Australia where they have access to the support network of family, community support programs and friends. The applicant states that his family has built a life in Australia and the child has established roots in Australia and there is a risk of genuine harm if the family was sent to Cambodia.

27. The Tribunal accepts that the child is attending school and is prepared to accept that the child has friends in Australia and is used to life in Australia. However, given the child’s young age, the Tribunal is of the view that the child would easily be accustomed to life in another country and he could form new friendships. In the Tribunal’s view, the best interests of a child of such a young age is to be with his parents and to receive the care and support of the parents, no matter which country he lives in. The Tribunal does not consider that the best interests of the child requires his presence in Australia.

28. The applicant told the Tribunal that he has no work skills and it would be difficult for him to find employment in his home country. The applicant suggested that he may relapse to drug use. The Tribunal is not satisfied that these matters give rise to Australia’s protection obligations. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

    Any other relevant matters, including the degree of hardship that may be caused to the visa holder and any family members

1. The nature of the hardship that the applicant claims he and his family would experience if returned to Cambodia is outlined above. Essentially, the applicant submits that he and his family would be removed from the support they have in Australia, that he may again succumb to drugs and that the return to Cambodia may prove fatal. The applicant and his partner also submit that it would difficult for them to find employment in Cambodia and support the family.

2. The applicant’s partner provided a declaration to the Tribunal. She states that the family would prefer to live together as a complete family and support each other. She refers to her son’s schooling and school activities and the hardship that the family would experience if returned to Cambodia, including lack of employment, property, family and relatives and the child will lose good opportunities in Australia. She states that the child was very young when he arrived in Australia and could not speak Khmer and it would be difficult for him to start schooling again.

3. The applicant claims that there is no medication available in Cambodia and he may return to drug use without the medication. The applicant states that even though he is drug free, he has been taking medication.

4. The applicant states that his wife and child have not done anything wrong and should not be punished.

5. The Tribunal accepts that considerable hardship is likely to be caused to the applicant and his family if the visa is cancelled and if the family were required to leave Australia as a result.

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant did not comply with s. 102 of the Act and that there are grounds for cancelling his visa. The Tribunal considers the breach to be significant because the decision to immigration clear the applicant would have been based, at least in part, on incorrect answers. The Tribunal does not accept the applicant’s evidence that he misunderstood the question and has formed the view that the breach is more likely to have been deliberate. The Tribunal is also mindful of the other breach resulting from the applicant’s failure to disclose his convictions in the application for the Resident Return visa, as well as the general breaches of the law reflected in the multiple convictions. The Tribunal finds that there are strong reasons why the visa should be cancelled.

7. However, the Tribunal has also formed the view that the cancellation would result in considerable hardship to the family. The Tribunal notes that the applicant has been living in Australia for a lengthy period and that his immediate family reside in Australia. Evidence before the Tribunal indicates that the applicant has a close relationship with his parents and siblings and that his parents play a meaningful role in raising the applicant’s child. Such support would not be available to the applicant and his son if the visa is cancelled. The cancellation of the visa is also likely to result in either the cancellation of the visas held by his partner and child, or the refusal of their ongoing Partner visa applications. The Tribunal accepts that the applicant’s son has spent the majority of his life in Australia and that the support from the extended family that he has in Australia may not be available to him if the visa remains cancelled.

8. The Tribunal acknowledges the applicant’s evidence that he may relapse into drug use and that appropriate medication may not be available to him in Cambodia but the Tribunal notes that there is little probative evidence to support these claims and they appear to be speculative. The applicant also presented little evidence to support his claim that he would be unable to find employment in Cambodia but the Tribunal accepts that the applicant has limited education and this may impede his ability to support the family in the future.

9. The Tribunal has formed the view that in the particular circumstances of this case, the degree of hardship that may be caused to the applicant and his family by the cancellation of the visa outweighs other considerations.

10. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Kira Raif
    Senior Member