Le (Migration)

[2018] AATA 75

Le (Migration) [2018] AATA 75 (18 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huy Hoang Le

CASE NUMBER:  1715995

DIBP REFERENCE(S):  CLF2012/253327

MEMBER:Denis Dragovic

DATE:18 January 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 18 January 2018 at 9:51am

CATCHWORDS
Migration – Cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – Criminal history – Continued drug use – Went underground – Breached reporting obligations

LEGISLATION
Migration Act 1958, s 116
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 17 July 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) and regulation 2.43(1)(p)(i) on the basis that the applicant was convicted of:

   ·Possess amphetamine

   ·Possess property suspected proceed of crime

   ·Possess ecstasy

   ·Possess Methylamphetamine

   ·Possess cartridge ammunition without license/permit

   ·Possess controlled weapon without excuse

   ·Deal property suspected proceed of crime

   ·Driving whilst authorisation suspected

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 5 and 7 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Linh My Phan Huynh, the applicant’s wife, and Ms Mai Le Phan, the wife’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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)(p)(i) is relevant.

9. The notice of intention to consider cancellation under s.116 listed the applicant’s convictions as those listed above. At the time of hearing the applicant was incarcerated in Lodden Prison on separate convictions discussed further below.

10. At the hearing I put to the applicant that the cancellation of his visa was made under a section of the Migration Act which identifies persons convicted of an offence. I asked him whether there is any reason for me to believe that the grounds for cancellation have not been made. The applicant admitted that he had been convicted.

11. For these 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 power to cancel the visa should be exercised.

    Consideration of discretion

12. In considering whether to cancel a Bridging E visa on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

13. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

14. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

15. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.

16. The applicant’s representative provided a well prepared and comprehensive pre-hearing submission dated 28 November 2017 with information relevant to the case. In addition I presented to the applicant information under s.359AA that the Department had furnished the Tribunal, specifically the Victoria Police Criminal History Report and the Department’s decision on the applicant’s substantive partner visa application. The evidence and the applicant’s responses are detailed below.

17. In summary the applicant was charged and convicted of the offences listed at [2] in August 2014. He was given a Community Correction Order for 24 months and was required to attend 300 hours of unpaid community work. The applicant was subsequently charged again on 24 December 2014 for dangerous driving while pursued by police, driving at a dangerous speed, driving whilst authorisation suspended, failing to stop on police request, exceeding speed limit by 45kmph, reckless conduct endangering serious injury, reckless conduct endangering life, dealing property suspected to be proceeds of a crime, driving in a manner dangerous and going equipped to steal/cheat. The applicant, fearing the consequences of being convicted and incarcerated because of his prior record, went underground. He did not report to court for his driving charges. He stopped reporting for his CCO. He ceased reporting to the Department of Immigration in breach of condition 8401 which required him to report on a weekly basis. He remained living with his wife and her mother but claims to have kept a low profile. In June 2017 he was caught driving without a license and the police having found him to have evaded authorities, detained him and he was subsequently incarcerated with a six month prison term. The Tribunal hearing was conducted near the end of his term.

18. The applicant has a two year old son. His son was born in Vietnam in December 2015. The applicant’s wife chose to have her child in Vietnam because she would receive more support from his family there than from him in Australia as she thought that he didn’t seem to care because of his drug addiction. She returned to Australia with their son in June 2016 and at the end of the year returned to work. The applicant’s wife hoped that upon her return he would have changed. She said that he had ‘60%’ meaning that while he was contributing he would wake when he wanted to wake and just focus on himself and not provide the support she needed some of the time. At no stage did she think that his drug addiction affected her and her child directly. He didn’t take drugs at home. The applicant played the carer’s role after she returned to work and before he was incarcerated for a period amounting to about six months.

19. Also relevant is the applicants drug addiction. He claims that he had been addicted for seven years. At the time all his friends were drug addicts. He had no one to give him advice on what he should or shouldn’t do. He claims that such a long period of ice usage has affected his memory. The applicant claims that he is now six months clean having stopped using drugs since being in prison. He doesn’t participate in drug rehabilitation programs because he can’t speak English and for the reason that he works as a cook which doesn’t leave him with the time.

20. I find that both the applicant and witness are credible witnesses and as such I have accepted their account of the factual circumstances of their case.

    Best interest of any children under the age of 18 in Australia who would be affected by the cancellation

21. In the representative’s submission arguments were made that the child would be adversely affected by a decision to cancel the applicant’s Bridging visa. It was argued that the child had already been separated from his father for six months due to the length of the prison term and that immigration detention would extend this separation until an appeal on the substantive visa, a partner visa, could be considered by the Tribunal. As the child is two years old the submission argued that it is imperative that the father be present during the formative years.

22. The applicant played an independent parental role after his wife returned back to work in December 2016 until he was imprisoned in June 2017. He would feed, bath and play with their son. Despite his parental responsibilities he continued to use drugs. He told the Tribunal that he had bad friends and no good motivation to quit drugs. I put to him that his evidence suggests that he continued to use drugs while his wife was pregnant and while he was caring for his child. The applicant argued at various stages through the hearing that he didn’t use the drugs at home and that his addiction only continued because of his bad friends. 

23. I accept that the applicant’s son would benefit from having a fatherly figure present. But I also note that the applicant is far from a model father, one who continued to take drugs through his wife’s pregnancy and during his son’s early years. While it is preferable that a child has a father in their life it is not without risks in some circumstances. In this case I give limited weight against the cancellation of the visa for the reason that the applicant’s presence in the child’s life brings with it a real and present risk.

    The impact of a decision to cancel the visa on the family unit

24. The applicant’s wife put to the Tribunal that she would face hardship were her husband to be detained. She explained that she cannot return to work and is dependent upon Centrelink. If he was released then the applicant’s wife believes that he could look after the child while she returns to work. 

25. The applicant’s wife said that she found it hard not to have her husband around to help raise their son. I put to them that many families deal with a parent that is away for substantial periods of time including military personnel or parents that work abroad and asked how their circumstances differed. They responded that their son is at an impressionable age and not having his father around is difficult.

26. I accept that the applicant’s wife will experience financial hardship by not being able to work and that it is difficult to raise a child on her own I also note that the hardship described is not uncommon among others who have a parent in prison or under other circumstances such that they are incapable of providing parental or material support yet have overcome these challenges. While I accept that there will be an additional burden to the mother I only give this element limited weight against cancelling his visa.

    The degree of hardship that may be experienced by the visa holder if his visa is cancelled;

27. I provided to the applicant information from a review of the contract to provide health services in immigration detention facilities which states, the provider is required ‘to provide health services to detainees at the standard available in the general Australian community.’  I acknowledge that in this 2012 Australian National Audit Office Report, it states that there has been ‘persistent and serious concerns’ about the adequacy of the services. There is no newer information publicly available on the quality of services.

28. The report discusses the extent of the health services provided to detainees as including:

    Primary health care, including nurse and general practitioner consultations, is provided at clinics located within the detention facilities. Most detainees receive prescribed medication at set medication distribution times. Mental health, dental and optical consultations are also to be provided within detention facilities. Access to external specialists, hospitals and other allied health services, is facilitated by [name omitted at hearing] referral arrangements. [1]

    [1] Australian National Audit Office, Delivery of Health Services in Onshore Immigration Detention - Summary and recommendations available at accessed on 16 January 2017

29. I asked the applicant whether having access to such services would help him break his drug addiction. The applicant responded that the best thing to break his drug dependency has been his desire to be reunited with his family and that continuing to be free of drugs is more about mental strength than any drug rehabilitation programs. In reviewing the report I find that the visa holder will be able to access mental health support to the level that he has accessed while in the community and as he may require in the future.

30. The representative identified within the report information that indicates the services provided are more responsive to issues that arise rather than being proactive in responding to the broader health challenges detainees face. I accept that this may be the case but nevertheless find that the report indicates a clear structure of service provision albeit not as extensive as contractually required.

31. The applicant responded that his main concern was his family and the consequences upon them of his separation from them. This concern creates mental anguish for him.

32. Arising from the facts despite not being aired by the applicant is that detention of any form can add a degree of hardship to detainees. In considering how this will impact the applicant I note that he is a young and healthy man who is fighting against a former drug addiction. I have not identified any particular circumstances that would suggest particular hardship was he to be detained for an extended period of time.

33. I accept that the applicant will carry a mental burden which causes him anguish as he reflects upon the circumstances that he finds himself in. But I also find that the services provided within detention include adequate support mechanisms for him to strengthening his resolve to break his drug dependency. Not having identified any circumstances that would extenuate the impact of his detention overall I give no weight either in favour or against cancelling his visa in this regard.

    The circumstances in which the ground for cancellation arose

34. The applicant has an extensive criminal history among which one act, being charged on various counts of reckless driving on December 24 2014, led to his incarceration. The applicant, fearing being caught, went to ground and avoided his court date and breached his obligations to report to the Department of Immigration. This in turn led to two and a half years of living under the radar until he was caught.

35. The applicant explained at the hearing that the incidents which led to his incarceration occurred 3-4 years ago. At that time he was hanging out with people who he described as being not very good and as a result used drugs. He claimed that about two years ago when his wife became pregnant that it changed him, though, he continued to consume drugs.

36. In reflecting upon the circumstances of the applicant, while I acknowledge that Crystal methamphetamine ('ice') is highly addictive and can cause havoc with both the mind and the body, the applicant had an extensive support network. He had his wife, her parents and his own parents in Vietnam, who have engaged with him and given him many chances to pursue help. Nevertheless, the applicant chose not to. Instead, he continued his drug usage with the explanation being that he held bad company.

37. He then snubbed the law for two and a half years eventually being caught and incarcerated. I find that the circumstances surrounding his cancellation are serious, that his actions extend beyond a bad choice of friends and as such I give very strong weight in favour of cancelling his visa.

    The possible consequences of cancellation, including but not limited to, whether cancellation could result in indefinite detention, or removal in breach of Australia’s non-refoulement obligations, noting that a decision to cancel a Bridging E visa does not necessarily represent a final resolution of a person’s immigration status;

38. There are no possible consequences of cancellation as outlined in Direction 63 relevant to this case.

    Other considerations

39. The applicant’s wife’s mother provided evidence which aligned with that of the applicant and his wife. She added that she had never seen her son-in-law affected by drugs although she had heard about it. I give no additional weight to earlier findings as this aligns with evidence provided by others.

40. The applicant has found work as a cook in the prison three days a week. I accept that this shows a concerted effort in rehabilitating and for this reason I give limited weight against cancelling his visa.

41. The applicant provided a post-hearing submission of a document from Lodden Prison obtained through FOI which noted that the applicant has had no recorded incidents since his time in Lodden. I give minimal weigh against cancelling his visa for the reason of his good behaviour in prison.

42. The applicant not only has a criminal history but he breached his reporting requirements to the Department of Immigration. For this reason I give additional limited weight in favour of cancelling his visa.

43. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

44. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Denis Dragovic
    Senior Member