Nguyen (Migration)

[2021] AATA 3057

Nguyen (Migration) [2021] AATA 3057 (28 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manh Tuan Nguyen

CASE NUMBER:  2104098

HOME AFFAIRS REFERENCE(S):          BCC2021/626418

MEMBER:Michael Ison

DATE:28 July 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 28 July 2021 at 4:36pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – granted in conjunction with combined partner visa application – temporary visa granted and application for permanent visa in progress – criminal convictions and imprisonment – temporary visa cancelled, then bridging visa cancelled – cancellation of partner visa set aside on review – discretion to cancel visa – no utility or interests of justice in cancelling bridging visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), (3), 360(2)(a)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 March 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116 of the Migration Act 1958 (the Act).

   Background

2. The applicant in this review is Mr Manh Tuan Nguyen who is a 29-year-old Vietnamese national. Mr Nguyen is referred to in these reasons for decision as the applicant.

3. The applicant was granted his first Student visa on 17 September 2008 and arrived in Australia on 14 October 2008 but stopped studying after approximately two years due to his family experiencing significant financial problems in Vietnam.

4. When the applicant stopped studying in approximately late 2010 he worked as a handyman and was sending money back to his parents in Vietnam.

5. In 2012 the applicant met his partner, Ms Hien Thi Nguyen, who is an Australian citizen having arrived in Australia in 1995 from Vietnam when she was four years old.

6. On 30 August 2013 the applicant’s Student visa ceased to be valid.

7. The applicant and Ms Nguyen married in Australia on 7 September 2014. Their daughter was born in October 2014 and their son was born in September 2017. At the time of this decision Ms Nguyen is pregnant with their third child and is due to give birth in October 2021. A DNA Parentage Testing Procedure report prepared in accordance with the requirements of the Family Law Act 1975 and dated 3 February 2016 confirmed the applicant as 99.99% likely to be the biological father of their daughter. The Tribunal accepts the applicant is the father of his daughter with his wife, Ms Nguyen.

8. On 9 January 2015 the applicant applied for a Subclass 820 Partner visa, sponsored by his wife, Ms Nguyen. The applicant was granted a Bridging C (Subclass 030) visa at this time pending the determination of his application for the permanent Subclass 801 visa, which is an application made at the same time as the application for the provisional Subclass 820 visa. The Bridging C visa does not have an expiry date and is expressed to be valid until the applicant’s application for the Subclass 801 visa is “finally determined” or the application for that visa is withdrawn.

9. The applicant was granted a Subclass 820 visa on 11 February 2016.

10. On 29 March 2017 the applicant provided a range of material to the Department to support his application for the permanent Subclass 801 Partner visa. That application has not been determined at the time of this decision. There is no information before the Tribunal to indicate that the application has been withdrawn.

11. On 12 August 2019 the applicant was arrested and charged with single charges of cultivating a commercial quantity of narcotic plants (marijuana) and dealing with the suspected proceeds of crime. The maximum penalty for the first charge is 25 years imprisonment. The applicant was remanded in custody at this time.

12. The applicant pleaded guilty to both criminal charges and on 10 June 2020 was convicted in the County Court of Victoria of those offences and sentenced to 11 months imprisonment.

13. The applicant was released from prison on 10 July 2020, having served his full sentence of imprisonment.

14. On 12 November 2020 the Department sent the applicant a Notice of Intention to Consider Cancellation of a visa (NOICC), being the applicant’s Subclass 820 visa. The applicant responded in writing to the NOICC on 23 November 2020 and 7 December 2020.

15. A delegate of the Minister cancelled the applicant’s Subclass 820 visa on 25 February 2021. The applicant appealed that cancellation decision to the Tribunal by application lodged on 3 March 2021.

16. On 8 March 2021 the Department sent the applicant a NOICC in relation to his Bridging C visa. The applicant responded in writing to the NOICC on 22 March 2021.

17. On 24 March 2021 a delegate of the Minister cancelled the applicant’s Bridging C visa and it is that decision that is the subject of the Tribunal’s review with the applicant lodging an application for review on 31 March 2021.

18. On 5 May 2021 the applicant was granted a Bridging E (Subclass 050) visa.

19. On 30 June 2021 the Tribunal, differently constituted, set aside the cancellation of the applicant’s Subclass 820 visa and the applicant’s Bridging E visa ceased at this time.

    The primary decision

20. The applicant provided the Tribunal with a copy of the primary decision.

21. The delegate cancelled the applicant’s visa under s.116(1)(g) of the Act and r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations) on the basis that the applicant was, at the time of the delegate’s decision, the holder of a temporary visa, being a Bridging C visa, and had been convicted of committing a criminal offence in Victoria on 10 June 2020. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the applicant’s Bridging C visa should be cancelled.

    No Tribunal hearing

22. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

23. The Tribunal had the benefit of reading the decision of the Tribunal, differently constituted, in Tribunal case 2102619 which was the review of the cancellation of the applicant’s Subclass 820 visa. The Tribunal also had the benefit of reading the submissions from the applicant and the Tribunal’s copy of the Department’s file in relation to that review.

24. The applicant was represented in relation to this review by his registered migration agent Mr Hunter Te of Dao Nguyen Migration. Mr Te is referred to as the applicant’s representative or the representative in these reasons for decision.

25. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. A visa may be cancelled under s.116(1)(g) of the Act 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 Regulations. In the present case, the ground in r.2.43(1)(oa) is relevant.

27. Regulation 2.43(1)(oa) provides:

    (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

28. 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?

29. The applicant concedes that having been convicted of two criminal offences in Victoria on 10 June 2020 a ground for the cancellation of his Bridging C visa under s.116(1)(g) of the Act and r.2.43(1)(oa) exists.

30. As that ground does not require mandatory cancellation of a visa under s.116(3), the Tribunal must proceed to consider whether the applicant’s visa should be cancelled.

    Consideration of discretion

31. 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 Procedural Instruction, formerly part of the Department’s Procedures Advice Manual, titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

32. The cancellation of the applicant’s Subclass 820 visa has been set aside and the applicant’s application for a Subclass 801 visa remains to be determined. The Tribunal finds that the applicant’s purpose in seeking to remain in Australia is to reside in Australia permanently with his wife and their children. The Tribunal finds that the applicant has a compelling need to remain in Australia.

33. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.

    The extent of the applicant’s compliance with their visa conditions

34. At the time of this decision the applicant holds a Subclass 820 visa. No conditions attach to this visa.

35. There is no information before the Tribunal of the applicant breaching the conditions of his Bridging C visa or the conditions of the Bridging E visa he held.

36. There is also no direct evidence of the applicant breaching any condition of his Student visa although there is information before the Tribunal that the applicant ceased studying while holding that visa. If that is the case that would mean the applicant breached condition 8202(2)(a) attached to his Student visa, which required him to maintain enrolment in a registered course of study while holding that visa. As the Department has not made an adverse finding against the applicant in relation to the conditions attached to his Student visa, the Tribunal does not make any finding against the applicant in this regard.

37. Information before the Tribunal indicates that the applicant remained in Australia without holding any visa after the cessation of his Student visa on 30 August 2013 up until he applied for the Subclass 820 visa on 9 January 2015, when he was granted a Bridging C visa. This is a period of over 16 months of the applicant being in Australia unlawfully and is considered by the Tribunal to be a significant and sustained breach by the applicant of his obligation under his Student visa to depart Australia before the cessation of that visa.

38. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

39. As the applicant holds a Subclass 820 visa at the time of this decision the cancellation of his Bridging C visa will not cause him any hardship that is obvious to the Tribunal, given his Subclass 820 visa entitles the applicant to remain in Australia until his application for the permanent Subclass 801 visa is finally determined.

40. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

41. The applicant was arrested on 12 August 2019 at a residential premises where 202 cannabis plants weighing just over 30 kilograms were found in various stages of development, being grown using a hydroponic system in a manner that indicated the crop house was set up to produce continuous, rather than a single, harvest. The applicant’s role was described in his criminal prosecution as a “crop sitter”.

42. As noted in paragraph 11 of these reasons the applicant was charged at the time of his arrest with single charges of cultivating a commercial quantity of narcotic plants (marijuana) and dealing with the suspected proceeds of crime.

43. At the time of his arrest at the crop house the applicant was found in possession of two mobile telephones and AUD1,990.45.

44. The applicant was remanded in custody at the time of his arrest.

45. At the committal mention in relation to these criminal charges on 2 December 2019 the applicant entered a plea of guilty.

46. On 10 June 2020 the applicant was convicted of both charges and sentenced in the County Court of Victoria to 11 months imprisonment on the cultivation charge and seven days imprisonment on the proceeds of crime charge, to be served concurrently.

47. The applicant was released from prison on 10 July 2020 having served his sentence.

48. In written submissions to the Tribunal as constituted in Tribunal case 2102619 the applicant’s representative submitted:

    16. The applicant submits that he committed the offences because he was struggling to meet his financial needs. The applicant accepts that “offences involving the cultivation of narcotic plants is serious”; even though the applicant’s role was found to be minor compared to his accomplices.

    17. It is noted that the applicant’s former representative did not provide the sentencing remarks in support of the applicant’s response to the Notice of Intention to Consider Cancellation. A copy of the sentencing remarks of the Country Court of Victoria is attached to this submission to assist the Tribunal to make a finding which takes into account all relevant factors.

    18. As discussed by Her Honour Justice Dalziel in her sentencing remarks dated 10 June 2020, there are some significant matters worth taking into account.

    a) Firstly, the applicant’s criminal conduct may be characterised as a lowlevel example of a serious offence, being “menial and ancillary”. This is reflected in the length of sentence imposed being 11 months’ imprisonment which represents 3.66% of the maximum of 25 years for the charges. Her Honour recognised the limited and peripheral role of the applicant in the criminal enterprise, and the mitigating circumstances – primarily his desperation for financial gain – which led to his involvement in the criminal conduct.

    b) Secondly, Her Honour accepted that the applicant was remorseful for his conduct, as evidenced by his admissions to police and his early guilty plea. “The guilty plea was entered at the earliest opportunity and therefore warranted a discount for facilitating the administration of justice, his acceptance of responsibility, and its utilitarian value”.

    c) Thirdly, Her Honour accepted that the applicant has no prior convictions, and good prospects of rehabilitation, provided his financial situation improves.

    d) According to Her Honour’s sentencing remarks, although the applicant’s involvement in the offending was not beyond his control, his involvement was nevertheless “menial and ancillary”. In addition, the applicant has no prior criminal record. After assessment by Ms Pamela Matthew, a forensic psychologist, she found that “the risk of Mr Nguyen re-offending is minimal or unlikely.” Also, the applicant is remorseful for his conduct and has since rehabilitated, as evidenced by the lack of further offending. (sic) [footnotes removed]

49. There is no evidence before the Tribunal that the circumstances in which the ground for cancellation arose were beyond the control of the applicant and the applicant does not make that claim. This is not to say that there were no extenuating circumstances. The Tribunal notes that the offending occurred at a time when the applicant was experiencing acute financial hardship. However, the applicant made a decision to participate in an ongoing enterprise that he knew or quickly realised was illegal and then, under claimed threat of physical harm, continued in that enterprise for some time until he was arrested.

50. The Tribunal accepts the submissions of the applicant’s representative that the County Court of Victoria, when sentencing the applicant, found he had a limited and ancillary role in a larger criminal enterprise. However, the applicant’s role in that enterprise was sufficient to attract an 11-month term of imprisonment and was described by her Honour Judge Dalziel in her sentencing remarks as follows:

    Whilst your role might properly be described as menial and ancillary, and you had no expectation of earning more from this crop than the weekly payment for your work, you contributed to an enterprise in a practical and vital way, and did so for commercial benefit.

51. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and gives this consideration great weight.   

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

52. The delegate recorded in the primary decision that there was no information before the delegate of any adverse past or present behaviour by the applicant toward the Department.

53. The applicant’s representative submitted that this consideration weighs in the applicant’s favour.

54. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

55. The information before the Tribunal is that there is no-one dependent upon the applicant’s visa.

56. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

57. The usual mandatory legal consequences that would flow from the cancellation of the applicant’s Bridging C visa do not apply in the applicant’s circumstances, because the applicant holds a Subclass 820 visa at the time of this decision. The applicant’s Subclass 820 visa grants him the right to remain in Australia until his application for the permanent Subclass 801 visa is determined.

58. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

59. As the applicant holds a Subclass 820 visa at the time of this decision the cancellation of his Bridging C visa would not see the applicant separated from his Australian citizen children or exposed to being detained or removed from Australia or during the ongoing COVID-19 global pandemic being exposed to potential extended, let alone indefinite, detention.

1. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia

2. The applicant’s visa is a temporary visa.

3. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.

   Any other relevant matter

4. Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) sets out the objective of the Tribunal. This section requires the Tribunal to provide a mechanism of review that, amongst other matters, is “fair, just, economical, informal and quick” and “promotes public trust and confidence in the decision-making of the Tribunal”.

5. The utility of the cancellation of the applicant’s Bridging C visa is not apparent to the Tribunal given the cancellation of his Subclass 820 visa has been set aside. To cancel the applicant’s Bridging C visa in the absence of convincing reasons to do so, such as the weight of the discretionary considerations clearly supporting such cancellation, would not promote public trust and confidence in the decision making of the Tribunal.

6. It is also not apparent to the Tribunal what interests of justice would be served by cancelling the applicant’s Bridging C visa in his present circumstances.

7. The Tribunal finds that these additional relevant matters weigh against the cancellation of the applicant’s visa and the Tribunal gives these considerations great weight.

   Conclusion

8. The Tribunal finds that those considerations that weigh against the cancellation of the applicant’s visa, namely his compelling reasons to remain in Australia, the applicant’s co-operative behaviour toward the Department and the lack of utility and justice in cancelling the applicant’s visa after the cancellation of his Subclass 820 visa has been set aside, outweigh those considerations which weigh in support of the cancellation of the applicant’s visa.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 030 (Bridging C) visa.

    Michael Ison
    Senior Member