Nguyen (Migration)

[2021] AATA 2694

Nguyen (Migration) [2021] AATA 2694 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Manh Tuan Nguyen

CASE NUMBER:  2102619

HOME AFFAIRS REFERENCE(S):          BCC2020/2514092

MEMBER:Rachel Westaway

DATE:30 June 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 820 (Spouse) visa.

Statement made on 30 June 2021 at 11:20pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal convictions and imprisonment – discretion to cancel visa – period as unlawful non-citizen – low risk of reoffending – return to work after release – financial and emotional hardship if cancellation affirmed – wife’s mental health – best interests of Australian citizen children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
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 25 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the applicant’s 820 visa under s.116(1)(g) because the delegate determined the prescribed ground for cancellation under r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations) applied to the applicant as he held a temporary visa (other than a Subclass 050, 051 or 444 visa) and was convicted of an offense against law of the Commonwealth, State or Territory.

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 in-person before the Tribunal on 19 May 2021 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the applicant’s spouse (Ms Thi Hien Nguyen).

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

7. The applicant was represented in relation to the review by his registered migration agent, Mr Hunter De of Dao Nguyen Migration.

8. 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

9. 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.

10. The Tribunal explained to the applicant the prescribed grounds for the cancellation. The applicant was asked about his conviction. He confirmed his convictions as listed below.

    Does the ground for cancellation exist?

    s.116(1)(g) - prescribed ground

11. 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 Regulations.

12. In the present case, the ground in r.2.43(1)(oa) is relevant which states:

    Reg 2.43        Grounds for cancellation of visa (Act, s116)

    (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))…

    Migration History

13. The applicant is a 29 year old male from Vietnam who first arrived in Australia on 14 October 2008 on a student (TU 573) visa.

14. The applicant was then granted his 820 temporary partner visa on 11 February 2016 on the basis of his relationship with his sponsor, Ms Hien Thi Nguyen, which was valid until subsequently notified the permanent 801 visa was decided or application withdrawn. The couple have two underage children (a daughter who is currently 6 years old and a son who is currently 3 years old) who are Australia citizens.

15. On 29 March 2017 the applicant provided various material to the Department of Home Affairs (the Department) to support the permanent stage of his partner visa application process. This 801-visa application remains undetermined thus pending at the Departmental level. 

16. Various evidence before the Tribunal indicates that on 10 June 2020 the applicant was sentenced in the County Court of Victoria and convicted on the following two criminal charges:

Court	Court Date	Offence	Court Result
Melbourne County Court (Victoria)	10 June 2020	Cultivate Narcotic Plants of Commercial Quality	11 months imprisonment
Melbourne County Court (Victoria)	10 June 2020	Deal with Suspected Proceeds of Crime	7 days concurrent. Total 11 months

1. On 12 November 2020 the Department sent the applicant a Notice of Intention to Consider Cancellation (NOICC) as they had received information from Victoria Police indicating the applicant had been convicted of the above two criminal offences on 10 June 2020 thus a ground may exist to cancel his 820 partner visa.

2. On 23 November 2020 and 7 December 2020, the applicant submitted the following documentation to the Department in response to the NOICC:

   Legal submissions and statements

   ·legal submissions by DLT Immigration and Translation Services dated 23 November 2020

   Reports

   ·Parentage Testing report Procedure Report dated 3 February 2016 and associated emails regarding DNA test of applicant and his daughter 

   ·Forensic Psychologist’s Report by Pamela Matthews dated 8 May 2020 assessing the applicant’s spouse suffered from Major Depressive Disorder as a result of the applicant’s incarceration and struggled managing her young family with limited support mechanisms

   ·Psychological Assessment Report by Mr Mathew Staios dated 15 May 2020

   ·Forensic Psychologist’s Report by Pamela Matthews dated 2 December 2020 assessing the applicant as being of low risk of reoffending 

   Court docs

   ·applicant’s Vietnamese criminal record dated 17 June 2009

   ·applicant’s National Police Certificates dated 28 April 2017 and 4 November 2020

   ·various Court documentation pertaining to the applicant’s two criminal charges

   Identity docs

   ·copy of applicant’s Vietnamese passport valid until 2028

   ·copies of Australian passports for applicant’s spouse and daughter

   Other

   ·various photographs of the applicant’s family

   ·820 partner visa grant notice dated 11 February 2016

   ·various Form 888 Statutory Declarations dated 2017 and 2020 submitted as character references

   ·medical letters dated 21 March 2017 about applicant’s spouse’s abortion

   ·Applicant’s payslip dated 19 November 2020 as evidence of his Stonemason occupation

   ·Document entitled ‘Estimating drug harms: a risky business’ by Centre for Crime and Justice Studies dated October 2009

   ·Document entitled ‘The Psychosocial Impact of Detention and Deportation on US Migrant Children and Families by American Journal of Orthopsychiatry dated 2014

   ·Web Report entitled ‘Alcohol, tobacco & other drugs in Australia’ by Australian Institute of Health and Welfare dated 31 July 2020

3. The delegate determined the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

4. Accordingly, on 25 February 2021 the delegate decided to cancel the applicant’s 820 visa.

5. On 3 March 2021 the applicant lodged an application for review in respect of the decision to cancel his 820 partner visa resulting in this AAT case number 2102619.

   Submissions

6. The applicant provided the following material to the Tribunal in support of his merits review application:

   ·copy of primary notification letter and decision record dated 25 February 2021

   Legal submissions and statements

   ·legal submissions by Dao Nguyen Migration dated 13 May 2021

   ·applicant’s statement dated 18 May 2021 explaining the financial and emotional hardships he would experience if his visa was cancelled

   ·statement of applicant’s spouse dated 18 May 2021 explaining the hardships her family experienced when applicant was imprisoned   

   Reports

   ·Forensic Psychologist’s Report by Pamela Matthews dated 8 May 2020 assessing the applicant’s spouse suffered from Major Depressive Disorder as a result of the applicant’s incarceration and struggled managing her young family with limited support mechanisms

   ·Forensic Psychologist’s Report by Pamela Matthews dated 2 December 2020 assessing the applicant as being of low risk of reoffending 

   Court docs

   ·Victorian County Court’s Sentencing Reasons dated 10 June 2020 in respect to the two criminal charges

   ·applicant’s National Police Certificate dated 4 November 2020 disclosing an 11 month imprisonment sentence on 10 June 2020 for cultivating narcotic plant commercial quantity and dealing with suspected proceeds of crime

   Identity docs

   ·copy of applicant’s Vietnamese passport valid until 2028

   ·copies of Australian passports for applicant’s spouse, son and daughter

   ·Victorian Birth Certificates for applicant’s son and daughter

   ·Couple’s Victorian Marriage Certificate stating marriage was solemnised on 7 September 2014

   Other

   ·Various Statutory Declarations dated in 2020 from applicant’s marriage celebrant and friend being character references for the applicant  

7. The legal submissions dated 13 May 2021 states the applicant acknowledges he was convicted of the two criminal offences and that the prescribed ground for cancellation in r.2.43(1)(oa) exists.

8. The Tribunal finds the applicant was a holder of an 820 partner visa, which is a temporary visa other than a Bridging and Special Category visa, and has been convicted of offences against the law of the State of Victoria thus there are grounds for cancelling the applicant’s 820 visa under s.116(1)(g) and r.2.43(1)(oa).

9. 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

10. 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’.

    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

11. The applicant initially arrived in Australia in 2008 on a student visa to study. The applicant subsequently met his wife onshore and was granted his 820 visa on 11 February 2016. The couple’s two children were born in Australia and are Australian citizens. The applicant’s compelling need to remain in Australia is to live and take care of his wife and two children, all of whom are Australian citizens.

12. The applicant was 17 years old when he came to Australia to study. He completed his English course. He then undertook a Diploma in Cookery but explained to the Tribunal that he did not have the time to complete the course. He worked in a vegetable farm cutting vegetables. He stated his visa expired and he became unlawful. He discovered it had expired around 2012 or 2013 and he stated that he consulted a lawyer. He stated that he could not study because he did not have money. His family were bankrupt. His parents supply food for animals.

13. The applicant confirmed he has travelled to Vietnam twice when his children were around one. The applicant’s wife came to Australia when she was 4 years of age. She is from Vietnam.

14. His parents and a younger brother are in Vietnam.  He is the only person in Australia with his family. The applicant’s family have not visited. The applicant stated his family do not know he was convicted, and he doesn’t speak to them. He stated his mother is not well.

15. He does not want her to know about his conviction. No one in his family have ever been convicted of an offence. He said if they were aware that would affect their mind and health status. He is afraid they might disown the applicant. He is afraid of the rumours.

16. The applicant met his wife through mutual friends in 2008.

17. The applicant was on a temporary partner visa based on the ongoing relationship with his wife of which he has two children. The Tribunal gives this factor significant weight in favour of the applicant. He has established a family in Australia and his children are young and there is a desire on behalf of his children and wife for him to remain in Australia.

    The extent of compliance with visa conditions

18. Departmental records indicate the applicant’s 820 partner visa had no attached visa conditions.

19. The applicant is currently on a Bridging Visa E which was recently granted on 5 May 2021 with attached visa conditions: 8101 (no work), 8506 (notify new address), 8207 (no study)  and 8564 (must not engage in criminal conduct).

20. There is nothing before the Tribunal to indicate that he has not complied with conditions on his bridging visas. The Tribunal does note that the applicant stated he has previously been unlawful.

21. The applicant’s wife stated that her husband is not working. She has been working and her in laws have provided some financial assistance.  

22. The Tribunal notes that the applicant’s breach, namely a significant conviction and previous unlawful status is serious and gives these factors no weight in favour of the applicant and not cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. The applicant stated that if his visa is cancelled, he would need to return to Vietnam and it would cause enormous hardship to his family and himself. He explained that his family could not return with him as his wife has not lived in Vietnam since she was four years of age. The longest period of time she has spent in Vietnam was 4-5 weeks. His children have never lived there. He said there would be language, cultural and family differences. He said whilst her family know, his family do not and she would have limited support in Vietnam. As such they would all be separated. He stated that he has not told his family in Vietnam.

24. He explained that he served his prison sentence in Sale and his wife visited him every two weeks prior to covid and his children would also visit him. He said that his mother in law has passed away but his father-in-law has always been very supportive.

25. When he was released from prison, he stated he should stop and take care of your family and be good. His father helped him to pay the debt off the car. He now works as a Stone Mason. He did this for 18 months prior to his time in prison. There are around 12 people who work in the business. The boss of the business treated the applicant as a son and had sympathy for him and provided help.

26. The applicant’s wife has an Aunt in Vietnam and an uncle and cousin. They live in a different state to her husband’s family. In her oral evidence to the Tribunal she explained that if the visa was cancelled, she would struggle to live in Vietnam as it would disrupt her children’s education. She doesn’t want to disturb her daughter. She stated it would be hard to live there as she grew up in Australia. She was 4 or 5 when she came to Australia and has no memory of Vietnam. She said that her father lives with her and it would be hard for him as well if her husband’s visa was cancelled. The entire family would suffer.

27. The Tribunal acknowledges and places some weight on the emotional hardship a cancellation would place on the family of the visa applicant and the visa applicant and gives this some weight in not cancelling the visa.

    Circumstances in which ground for cancellation arose

28. The ground for cancellation arises because the applicant held a temporary 820 partner visa and had been convicted of criminal offences in Victoria, Australia.

29. These are the first convictions. He has had no issues with the law or charges.

30. There do not appear to be any prior convictions or issues regarding the law which the applicant has stated or the Tribunal is aware of.

31. Notwithstanding that these are the first convictions the applicant has had; they are considered by the Tribunal to be serious and have attracted a serious and lengthy prison sentence. They also involve the cultivation of drugs which have significant long term affects on those that take them. The grounds for cancellation were not beyond the applicant’s control and as such the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

32. There is no adverse information about the applicant and he has responded to the Department and the Tribunal in a timely and polite manner. Notwithstanding this, this is the behaviour which the Tribunal would expect and as such gives this factor minimal weight in favour of the applicant.

    Whether there would be consequential cancellations under s.140

33. The applicant’s spouse and two children are all Australian citizens. There is no evidence before the Tribunal that there are any other persons who would be subject to consequential cancellation under s.140 of the Act.

34. The Tribunal gives this factor no weight in regard to not cancelling the visa.

    Whether there are mandatory legal consequences , such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

35. The applicant’s representative submits that if the applicant’s 820 partner visa is cancelled, then the applicant would become an unlawful non-citizen and subject to mandatory detention. 

36. The Tribunal has considered if the applicant’s 820 partner visa is cancelled, and unless he is granted another visa, the applicant would become an unlawful non-citizen and may be detained and / or removed from Australia. There is no evidence to suggest he would be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the visa cancellation. The applicant may also be subject to an exclusion period if he is required to lodge a visa application offshore given there are limited types of visas he may be able to apply onshore. The applicant’s eligibility for the permanent 801 visa would also be affected if he is not the holder a the temporary 820 partner visa. 

37. The Tribunal considers these issues as considered consequences of a cancellation and as such gives them no weight in favour of the applicant.

    Whether any international obligations, including non-refoulment, family unit and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

38. The applicant reiterated that his children are his primary concern. They have never lived in Vietnam. They are Australian citizens. They are infants and are in primary school and they live in a home with their grandfather and this would uproot them.

1. He stated that his wife has lived in Australia since she was 4 years of age. Her father lives with them since his wife has died. He stated that the family unit would be destroyed.

2. He explained the medical and education facilities are far from adequate in Vietnam compared to Australia. He stated that if his parents found out then he would not recognise his children or wife. He stated that rumours would spread about him and it would ruin his future. He would struggle to find a job.

3. The applicant’s children understand Vietnamese however his son understands but does not speak it. If he was to live in Vietnam, the transition would be difficult.

4. The Tribunal gives significant weight to the submissions put forward by the applicant in support of his children and family and the unlikelihood of him reoffending. The Tribunal gives these factors significant weight in favour of the applicant and not cancelling the visa.

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

5. The applicant’s temporary 820 visa was cancelled. This is not a permanent visa but is a pathway towards a permanent visa. The applicant’s spouse and two children are Australian citizens. His children are 6 1/2 and 3 ½ at the time of hearing. The Tribunal gives some weight to these factors in not cancelling the visa.

   Any other relevant matters

6. The Tribunal has considered the psychological report stating that the applicant has a minimal risk of reoffending.  

7. The Tribunal gives this factor some weight in factor of the applicant and not cancelling the visa.

   Conclusion

8. Considering the circumstances individually and cumulatively, the Tribunal concludes that the visa should not be cancelled

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

   Rachel Westaway
   Senior Member