Luht (Migration)

[2023] AATA 3227

Luht (Migration) [2023] AATA 3227 (3 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kaisa Luht

CASE NUMBER:  2217462

HOME AFFAIRS REFERENCE(S):          BCC2022/2732858

MEMBER:David McCulloch

DATE:3 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 03 July 2023 at 8:49am

CATCHWORDS  
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – Gains Benefit by Fraud – consideration of discretion – factual circumstances leading to the convictions – knowingly involved in the criminal and fraudulent enterprise – degree of hardship – decision under review affirmed 

LEGISLATION 
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43 

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 November 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Estonia born in 1994. The visa that was cancelled was granted on 12 March 2021, with a stay period to 21 June 2023.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 8 November 2022. The applicant provided a response to the NOICC on 13 November 2022.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 26 June 2023 at 11.30 am (AEST) to give evidence and present arguments. The Tribunal hearing was held by video using Microsoft Teams. This was because the applicant was located in Perth and the Tribunal Member is in Sydney. The applicant communicated in English.

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(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?

8. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

9. The delegate’s decision record and documents on the Department file indicate that the applicant was convicted of the criminal charges of ‘Gains Benefit by Fraud: Criminal Code (WA); 409(1)(c)B’ and ‘(Att) Gains Benefit by Fraud; Criminal Code (WA); 409 (1)(c)’ on 1 July 2022 at Perth Magistrates Court. The applicant was fined $15,000 in total for the offences.

10. In the hearing, the applicant acknowledged the convictions but indicated that the fine was in fact $7,500. The Tribunal is prepared to accept that this was the fine.

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 visa should be cancelled.

    Consideration of discretion

12. 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’. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

13. The following is a summary of the Statement of Material Facts from Western Australia Police, which outlines the allegations leading to the charges against the applicant. On 27 August 2021 a 2008 Toyota Kluger was purchased privately for $8,000 with an odometer reading of approximately 235,000 kilometres by the applicant. The applicant then privately sold the same vehicle for $11,000 with an odometer reading of 125,000 kilometres. The applicant profited $3,000 from that sale. The applicant had a search warrant issued against her and was arrested. When taken to Cannington Police Station, an interview was conducted, and the applicant did not make any comment on the matter. However, the applicant admitted she often receives vehicles for sale from unnamed associates that have been altered and is tasked to sell them. The applicant was released on bail for that matter. On 23 March 2022 the applicant purchased a 2016 Nissan Qashqai for $9,500 with an odometer reading of 254,000 kilometres. The applicant had attempted to list that vehicle for sale on Gumtree for $17,900 with an odometer reading of 134,000 kilometres. On 22 April 2022 the applicant attempted to sell the vehicle, however, she was unsuccessful. She returned to her home where she was arrested, and the vehicle was seized. In an interview at Cannington Police Station, the applicant stated a person dropped off the vehicle to her and she was required to sell it. The applicant also stated that she knew the vehicle had a tampered odometer.

14. In her response to the NOICC dated 13 November 2022, the applicant provided to the Department the following response (not corrected for spelling or grammar; introduction, headings and footings omitted):

    My name is Kaisa Luht and I’m in Australia with student visa subclass 500.

    I deeply regret the acts I have committed and I promise never violate the law again. I haven’t had any previous law infringements in Australia or in Europe. This situation has affected me hard in emotionally and physically. I regret my previous decisions what have caused to other parties financial and emotional damage. I made a mistake when I helped the person who I tought was my friend to sell a vehicle. He offered me some money to use my name as a vehicle owner, clean and sell his vehicle. I wasn´t sure about the vehicle condition or that the odometer was dampered. As it seemed like reasonable offer for me I decided to help him. I didn’t know where or when the vehicle was purchased or what was the price he paid for it. I didn’t think how serious will be the consequences then but I have taken now full responsibility to pay the fine and to be responsible for my actions.

    Past year and 8 months I’ve taken my studies very seriously. To finish advanced diploma of leadership and management next year would be my goal. It’ll be very useful to have diploma acquired in Australia for further job search in Europe.

    Visa cancellation would affect me and my partner lives drastically. I’m 4 months pregnant and we’ll welcome our first child into this world next year end of April. I have found myself best doctors around me and already place where to give birth. Australia medicine is highly valuated and I feel safe to trust doctors in this amazing country. My visa cancellation also means that my partner will not finish his diploma and all his effort will be wasted.

    I have also listed 3 references from my family members and friends to give you better understanding from the person I am.

15. In addition to her written submission, the applicant also provided the following to the Department and again to the Tribunal:

    ·     A character reference from the applicant’s younger sister who resides overseas, Maarja Luht, dated 28 June 2022.

    ·     A character reference from the applicant’s parents who reside in Estonia, Jane Luht and Leo Luht, undated.

16. The Tribunal put to the applicant in accordance with the procedural requirements of s 359AA of the Act information in the Western Australia Police Facts Sheet detailing the relevant allegations resulting in the charges. The Tribunal indicated to the applicant that the information was relevant because it indicates 4 instances of the applicant selling a vehicle where the odometer had been altered and the vehicles attempted to be sold at inflated prices. The Tribunal put to the applicant that the information was relevant because it indicated not insignificant criminal and fraudulent conduct. The Tribunal indicated that the information was relevant because the Facts Sheet indicates the applicant acknowledging to police her knowledge that the odometers had been tampered with. This is inconsistent with the applicant’s response to the NOICC that she was not aware that the odometers had been tampered with and she was helping a friend. The Tribunal indicated to the applicant that the consequence of the information could result in the Tribunal concluding that the applicant was knowingly engaged in criminal and fraudulent behaviour which has obviated her entitlement to stay in Australia with the privilege of holding a student visa.

17. The Tribunal indicated that it would take into account the applicant’s response to the NOICC and other information provided, including character references. The applicant was given the opportunity to make any comments in the hearing orally but was told that she had the option of responding later in writing if she chose. The applicant elected to respond orally.

18. In response, the applicant indicated that she knew that the readings on the odometers were low but she did not know that the odometers had been tampered with. The Tribunal was asked if she suspected they might have been tampered with. The applicant indicated that she did not suspect. The Tribunal noted that the claims not to know the odometers had been tampered with is inconsistent with the Facts Sheet which indicates her telling police on 2 occasions that she did know. The applicant maintained that she did not tell the police this. The Tribunal put to the applicant its doubts that police would state in the Facts Sheet that she did know when in fact she did not.

19. Later in the hearing, the Tribunal returned to questions regarding whether the applicant suspected alteration of the odometers. In response, the applicant changed her earlier evidence to state that she assumed the odometers had been tampered with. The Tribunal noted to the applicant that this was inconsistent with her initially telling the Tribunal that she did not suspect the odometers were tampered with. The applicant did not provide a meaningful explanation for this inconsistency.

20. The applicant indicated that she has never previously been in trouble with the law either in Estonia or Australia.

21. Considering all of the evidence, particularly the applicant’s admissions to police and her acknowledgement at the end of the Tribunal hearing that she assumed that the odometers had been tampered with, and that she was knowingly involved in the criminal and fraudulent enterprise of seeking to sell the vehicles at inflated prices due to the odometers being tampered with, the Tribunal is therefore not satisfied that there are extenuating circumstances beyond the applicant’s control in relation to the ground of cancellation being made out on the basis that the applicant did not know of the fraudulent conduct and activity in tampering with the odometers. The Tribunal considers that the applicant had at least assumed or suspected the odometers were tampered with.

22. The Tribunal determines that the factual allegations in the Facts Sheet leading to the convictions and penalty are significantly adverse to the applicant in considering its discretion as to whether or not the visa should be cancelled.

23. In terms of hardship if the visa is to be cancelled, the applicant referred to this in the hearing as resulting in her being unable to complete her Advanced Diploma of Leadership and Management. The applicant indicated that she has passed 5 units in this course and has 4 to complete. The Tribunal is prepared to accept this. The applicant then indicated she has a desire to undertake a Diploma of Project Management. The applicant indicates that in Australia she successfully completed a Diploma of Leadership and Management, which the Tribunal is prepared to accept.

24. The Tribunal accepts in the applicant’s favour in terms of discretionary factors that the applicant has completed a Diploma of Leadership and Management and made appropriate progress in an Advanced Diploma of Leadership and Management. The Tribunal accepts a degree of hardship to the applicant if she is not able to complete the Advanced Diploma and then progress to the further study that she wishes to complete in Australia.

25. The applicant indicated that the greatest hardship she would face if the visa remains cancelled is separation from her partner, who is an Estonian citizen who arrived in Australia in 2018 and is currently on a ‘COVID visa’, which she indicates gives him work rights. He works as a carpenter. The applicant indicated that they have a child together who was born in Australia approximately 5 weeks prior to the hearing.

26. The applicant indicated that her partner has a desire to apply for a temporary skilled visa to facilitate continuing work by him in Australia.

27. The Tribunal explored with the applicant what would happen if the Tribunal makes a decision to affirm the cancellation of the visa. The applicant indicated that she and her child will return to Estonia. However, she indicated that her partner will remain in Australia working as a carpenter and he is likely to return to Estonia in March 2024. The applicant indicated that he will remain in Australia because the work opportunities and pay are better in Australia than in Estonia.

28. The applicant referred to hurdles in terms of finding a place to live and gaining work in Estonia. The applicant indicated that she does not have parental support as her parents live in Finland. She indicated no other family support. The Tribunal acknowledged to the applicant difficulties she may face in securing employment in the context of her having to make arrangements for the care of her young child. In this context, the Tribunal put to the applicant that it might have plausibility concerns that her partner would remain in Australia working and not return with the applicant and the child to Estonia. In the alternative, the Tribunal put to the applicant that if work and pay were better for her partner in Australia than in Estonia, that her partner, if remaining in Australia, would provide financial support for the applicant and the child in Estonia before he returns in March 2024. The applicant maintained that her partner would remain working in Australia if she and the child have to return to Estonia.

29. The Tribunal accepts that it would not be a considerable hardship to the applicant if she and the child are separated from her partner while he remains in Australia working, albeit with an intention to return in March 2024. However, this is militated by the fact that the Tribunal considers that this would happen at the election of the applicant and her partner. If the hardship to the applicant was so great in terms of supporting herself and the child in Estonia, the Tribunal considers that her partner would make the decision to return to Estonia with the applicant and the child, where the Tribunal is not persuaded he would be unable to obtain work as a carpenter, albeit excepting that the remuneration may be less than what would be earned in Australia.

30. However, the Tribunal is willing to accept as a hardship, to be considered in the exercise of the discretion, the hardship that would be faced by her partner if he has to truncate his desire to remain in work in Australia.

31. In terms of other hardships, the applicant indicates that it will take time for the various requirements to be fulfilled to enable her child to obtain the passport that will be necessary for the child to enter Estonia. The Tribunal is not satisfied that this is a hardship that weighs significantly against the Tribunal exercising its discretion to cancel the visa because a delay in the child obtaining a passport would be taken into account in any timeframes regarding validity for a bridging visa. A bridging visa would ordinarily allow a remaining stay in Australia that takes into account the time needed for documents to be obtained as necessary to leave Australia.

32. The Tribunal accepts hardship to the applicant in terms of limitations on her ability to apply for other visas onshore if the visa is to remain cancelled. The Tribunal also accepts the theoretical hardship that the applicant could be an unlawful non-citizen if the visa remains cancelled. However, the Tribunal considers the applicant would be eligible to obtain a bridging visa while arrangements are made for her and her child to leave the country.

33. The applicant, as indicated, has referred to delays in the child being able to obtain a passport necessary to enter Estonia. The applicant has not otherwise referred to a hardship, as a result of the visa remaining cancelled, being that the child will need to return to Estonia. The Tribunal does not consider that claims are being made that a relevant hardship is the fact that the child will not be able to remain in Australia.

34. The applicant in the hearing indicated that she is not fearing harm such that she claims she would be persecuted or suffer significant harm for protection purposes on return to Estonia. The Tribunal is not satisfied that Australia’s non-refoulment obligations are relevant in this matter.

35. The Tribunal accepts the relatives have provided references for the applicant, and these are taken into account in her favour.

36. These are the relevant discretionary factors in the Tribunal’s view, which the Tribunal will weigh. Key considerations follow.

37. In the applicant’s favour is the fact that she has completed a registered course in Australia and made adequate progress in the additional course she was studying when the visa was cancelled.

38. Significantly adverse to the applicant are the factual circumstances leading to the convictions and the fact that the Tribunal considers the applicant had knowledge of or strongly suspected the fraudulent and criminal alteration of the odometers. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control explaining the convictions and circumstances leading to them.

1. The key hardship that the Tribunal considers the applicant would face if the visa remains cancelled is the truncating for the applicant’s partner in Australia of his desire to remain in work here. The Tribunal is prepared to accept there may be some hardship to the applicant and child if the partner decides to remain in Australia working. However, if there was considerable hardship to the child as a result of the partner staying, the Tribunal does not consider that the applicant and the partner would allow this to happen. If the hardship is great, the partner would make the decision to return to Estonia with the applicant.

2. The Tribunal takes into account in the applicant’s favour the hardship she will face if she is not able to complete her Advanced Diploma of Leadership and Management and then undertake a Diploma of Project Management and her desire to stay in Australia to complete and undertake these courses.

3. The Tribunal is not satisfied that these or other matters in the applicant’s favour, including the hardship that she will face, are outweighed by matters adverse to her, particularly the factual circumstances leading to the convictions and the belief by the Tribunal that the applicant had knowledge of the criminality.

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

   DECISION

5. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

   David McCulloch
   Member