Nguyen (Migration)

[2020] AATA 5962

Nguyen (Migration) [2020] AATA 5962 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

HOLDER:Mr Tien Tung Nguyen

CASE NUMBER:  2006046

HOME AFFAIRS REFERENCE(S):          BCC2019/6176301

MEMBER:John Cipolla

DATE:10 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the holder’s Subclass 020 (Bridging B) visa.

Statement made on 10 December 2020 at 3:59pm

CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – ground for cancellation – convicted of an offence – common assault (DV)-T2 – conditional release order – offence proven, but no conviction recorded – consideration of discretion – compelling need to remain in Australia – primary breadwinner for the family unit – repaying a mortgage in partner’s name – degree of hardship – best interest of the child – Australian citizen daughter – decision under review set aside

LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
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 23 March 2020 made by a delegate of the Minister for Home Affairs to cancel the holder’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling a visa applied to the visa holder (hereinafter referred to as the applicant) as set out in 2.43(1)(oa) of the Migration Regulations. This sub regulation specifies that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a 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. On 24 January 2020 the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOICC) outlining information forming the reason, or part of the reason for the prospective cancellation of the applicant’s visa. It was noted that NSW Police had informed the Department that the applicant had been convicted of ‘Common Assault (DV) – T2’, had been sentenced to a 12 month community correction order, an order to attend an ‘Anger Program’, and a 12 month supervision order supervised by the community corrections service on 26 November 2019. The holder was invited to comment on this information.

5. The Department received a response to the NOICC on 11 and 12 February 2020. The response outlined the criminal incident in question which the applicant stated occurred as the result of an escalating verbal conflict between the applicant and his wife, culminating in the applicant inadvertently kicking his wife during an entanglement, and the applicant pinning his wife to the floor after she had thrown objects at him. The applicant claimed that he pinned his wife to the ground in an attempt to restrain her.

6. The applicant raised concerns about the impact of the cancellation with respect to him being the primary breadwinner in his family and the possibility that he may have to return to Vietnam to await the outcome of a partner visa application thus having to leave his family for an extended period placing them under significant financial stress. The applicant also noted that he had no criminal antecedents, that this was a one off incident and was isolated in nature.  The applicant made reference to the quality of his character –confirmed in a number of statutory declarations provided by his wife and mother in law. The applicant also made reference to the role of his wife in the offending incident and the possibility of disruption to a long-planned family holiday. The submission also made reference to the severity of the outcome of his criminal proceedings, the fact that he did not have legal representation in the Local Court of NSW and pleaded guilty at the first available opportunity in the absence of legal advice. The applicant noted that him pleading guilty, for what was his first incident of offending, along with the fact that it was an assault that occurred in a domestic setting contributed to a range of strong punitive measures imposed by the court and leading to the subsequent actions taken by the Department and the imposition of a criminal record. The submissions further emphasised the reconciliation between the applicant and his wife, and the fact that his wife had indicated a willingness to be interviewed by the Department to validate the genuineness of her statements concerning their reconciliation and to attest to the applicant’s good character.

7. The delegate proceeded to a cancellation decision on 23 March 2020 and in doing so had regard to the various discretionary factors as to whether or not the visa should be cancelled. When assessing the purpose of the applicant’s travel to and stay in Australia, the delegate noted that the applicant held a Bridging B visa which had been granted to him whilst awaiting the outcome of a partner visa application that was at the time, the subject of ongoing judicial review. These proceedings related to a former relationship the applicant had been involved in. The delegate made reference to the applicant’s current relationship and did not accept the applicant’s claim that the current relationship had only commenced two years prior, and did not accept that the purpose of his stay aligned with the purpose of the Bridging visa, and gave significant weight to cancellation on this point. With regard to the possible hardship as a result of cancellation the delegate did not accept any financial concerns due to the absence of financial documentation to corroborate this, along with the fact that the family home loan had been issued in his wife’s name and thus on her demonstrated means, and due to the purported family holiday to Vietnam being financed independently by the holder’s parents in law.

8. The delegate accepted that some hardship may result on account of the separation between the applicant and his Australian citizen child, and some weight was given to this consideration against the cancellation. With regard to the circumstances in which the ground for cancellation arose, the delegate rejected an account of the conflict as outlined by the applicant in the NOICC response and highlighted the reluctance of the applicant to walk away from the conflict. The delegate also questioned the statutory declarations by the applicant’s wife and mother in law as being motivated by ulterior motives and not being objective and noted that the applicant had never disputed that he had committed the offence for which he was convicted. The delegate gave significant weight to this factor in favour of cancellation.

9. With regard to the applicant’s conduct toward the Department the delegate made reference to the ‘Form 1023 - Notification of Incorrect Answer’ which was provided to the Department on 24 January 2020 to rectify an incorrect answer given on a Bridging visa B application form lodged 17 January 2020, relating to the applicant’s criminal conviction two months prior. The delegate rejected the applicant’s assertion that this was provided in good faith and inferred that it was motivated by an email sent by the delegate one day prior, informing the holder of the forthcoming NOICC. When looking at the legal consequences of a decision to cancel, the delegate noted the liability for detention and removal under s189/s198, and an inability to meet PIC 4013 which would preclude the applicant from making applications for temporary visas, and a section 48 bar which would limit the types of visas for which the applicant could apply whilst in Australia. Some weight was given against cancellation on this ground. Regarding the best interests of the child, the delegate determined that the applicant is a Vietnamese citizen, that it is possible that both his wife and daughter are Vietnamese citizens, and that they may return there to live with him in the event that his visa is cancelled. The delegate noted that the Bridging visa that had been cancelled did not permit the applicant to stay in Australia permanently as per the applicant’s wishes, which would contradict its original purpose. Some weight was given against cancellation on this factor. The delegate then determined that on the balance of information before the Department, the greater weight lay in favour of cancelling the Bridging visa which was cancelled on 23 March 2020.

10. The holder appeared before the Tribunal on 26 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

11. The holder was represented in relation to the review by his registered migration agent who also attended the review hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the ground for cancellation exist?

    Relevant law

13. 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.

14. 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)(oa) is relevant. It provides the following

    (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))

    Does the ground for cancellation exist?

15. The applicant provided to the Tribunal a copy of the primary decision record dated 23 March 2020. The decision record states that information before the Department indicates that on 26 November 2019 at the Liverpool Local Court in NSW that the applicant was convicted of the offence of common assault (DV)-T2 and sentenced to a 12 month community correction order commencing 26 November 2019 to attend an anger program first appointment 30 November 2019 and to be the subject of a 12 month supervision order commencing 26 November 2019 under the supervision of the Community Corrections Service. 

16. The evidence further indicates that the applicant appealed the decision of the Local Court to the NSW District Court and on 22 July 2020 Judge Herbert in the District Court issued a conditional release order pursuant to s.9(1)(b) of the (Crimes Sentencing) Procedure Act 1999 in favour of the applicant. The effect of this is that instead of imposing a sentence of imprisonment or a fine or both on an offender, a court that finds a person guilty of an offence may make a conditional release order where the court proceeds to conviction or does not proceed to conviction.

17. The Tribunal finds on the basis of the evidence before it that the applicant has been found guilty of an offence in the state of New South Wales and at District Court no conviction was recorded pursuant to s.9(1)(b) of the (Crimes Sentencing) Procedure Act 1999, thus engaging s.116(1)(g) and the prescribed ground in in r.2.43(1)(oa).

18. In his response to the Notice of Intention to Consider Cancellation (NOICC) of his visa the applicant through his representative provided the Department with a statutory declaration from himself, his partner and his mother in law.  The applicant’s statutory declaration goes into considerable details about the circumstances in which the offending occurred. The applicant’s representative provided a further submission to the Department dated 12 February 2020. The submission makes reference to the nature of the offending and the circumstances in which the offending occurred. The submission also made reference to the range of impacts that the cancellation of the applicant’s visa would have on him, his partner and his Australian citizen child. The submission also noted that at the time that the applicant appeared in the Liverpool Local Court that he was not legally represented which placed him, as a non-English speaker, at a distinct disadvantage.   

19. The applicant provided the following evidence at the review hearing on 26 November 2020.

20. The applicant advised that he first came to Australia in 2011 as the holder of a Student visa. The applicant advised that he had completed high school in Vietnam followed by a Diploma of Information Technology. The applicant undertook English-language studies for six months when he arrived in Sydney in 2011. The applicant then enrolled in Information Technology studies at Charles Sturt University, a course of four years duration. The Tribunal asked the applicant whether he completed his studies and he advised that he did not, due to financial difficulties. The applicant stated that he entered a relationship with an Australian citizen, Ms Thi Chi Nguyen, whom he married in February 2013 and he then deferred his course of study. The applicant advised that he separated from his wife in March 2017 and was divorced from her in March 2018. The Tribunal asked the applicant whether he notified the Department of the cessation of the relationship. The applicant stated that he did not know that this was required. The applicant stated that at the time of separation that he hoped that the relationship would resume and that is why they pursued merits review and ultimately judicial review of the Departmental refusal of the applicant’s Partner visa application. The Tribunal asked the applicant why his relationship broke down and he advised that he found out that his wife was having an affair with another man. The applicant stated that he discovered this in March 2017, when a friend told him that his wife was travelling to Vietnam where she was having an affair with another man.

21. The Tribunal asked the applicant about his current relationship. He advised that he met his current partner at the end of 2017 on social media and that he had been in a continuous relationship with her since that time. He advised that he and his partner had a child, Tealia, a daughter, who was born at Liverpool Hospital in Sydney and is now 21 months old.

22. The Tribunal took evidence from the applicant about the nature of his offending that led to him being charged with an assault. The applicant stated that he had an argument with his partner, that he had been working long hours every day and that he told his partner that she needed to engage in housework. He advised that his partner was very tired because of parental responsibilities, an argument ensued, and that both he and his partner fell on the ground and as a result of the altercation his partner called the police. The Tribunal asked the applicant whether it was a significant incident where his partner would have been concerned for her safety and welfare. The applicant stated that his partner was very angry during the argument and they fell onto the ground. The applicant stated that there had been no previous incidences of domestic violence. The police attended the residence and spoke to the applicant’s partner and to the applicant and the applicant was taken to a police station and charged with assault. The Tribunal asked the applicant about the court case at the Liverpool Local Court. The applicant stated that he did not know much about  criminal law, that he did not engage a lawyer to represent him in the criminal proceedings, and that he pleaded guilty to have the matter finalised. The Tribunal asked the applicant whether he was currently working, and he advised that he worked as an air-conditioning assembler, a position he had held for the past six years.

23. The Tribunal took evidence from the applicant’s partner Hung Thanh Thy Nguyen the witness advised that she had been in a relationship with the applicant since December 2017 and that they had met on social media. She advised that she and the applicant had a 21 -month old daughter, and that she looked after the child and her husband worked in air-conditioning assembly, a position he had held for the past six years. The Tribunal asked the witness whether the applicant had been in a previous relationship in Australia. She advised that he had been previously married to a Vietnamese Australian, but the relationship had broken down due to the applicant’s ex-wife’s infidelity.

24. The Tribunal asked the applicant what hardship she and her daughter would experience if the applicant’s visa remained cancelled. She advised that the applicant provided financial support to the family and that the cancellation of his visa would create financial problems for the family unit. The Tribunal asked the witness about the incident of offending. The witness stated that she was very hot tempered. She advised that she and her husband had an argument and that she called the police. She advised that her intention in calling the police was to diffuse the situation and that she did not expect that her husband would be charged with a criminal offence. She advised that the applicant is a good father and good partner and that there had been no incidences of domestic violence in the past and no further incidences of domestic violence since.

25. The Tribunal deferred to the applicant’s representative who advised that he was reliant on the submissions that had been made in advance of the hearing. The applicant’s representative further noted that the applicant had appealed his sentence in the Liverpool Local Court to the District Court of New South Wales and that on 22 July 2020 Judge Herbert in the District Court issued a conditional release of the applicant pursuant to section 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999 in which the court finds the offence proven, but does not record a conviction.

    Consideration of discretion

26. 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

27. The applicant’s immigration history indicates that the applicant first came to Australia as the holder of a Student visa in 2011 and that he completed English language studies in Sydney and then enrolled in a Bachelor of Information Technology course at Charles Sturt University.  The applicant commenced the course but discontinued the course due to an inability to pay the ongoing course fee costs. The applicant then met and commenced a relationship with an Australian citizen whom he married in February 2013. The marriage broke down in March 2017 and the couple were divorced in March 2018. The evidence indicates that the relationship broke down due to the infidelity of his ex-wife.  The evidence indicates that the applicant had pursued a permanent residence application on the basis of this former relationship, which was refused at primary stage, a decision affirmed at merits review and then pursued to judicial review.  The evidence indicates that the judicial review application was withdrawn by the applicant. The applicant has a prospective spouse application on the basis of his current relationship, with the Department, which is yet to be finalised.

1. The Tribunal notes that the applicant appears to have complied with the conditions that applied to the visas and Bridging visas that he has held in the past.  The evidence before the Tribunal indicates that the applicant is now in a relationship with an Australian citizen, a relationship that has been in place since December 2017, and that he and his Australian citizen partner have an Australian citizen infant daughter. The evidence indicates that the applicant is the primary breadwinner for the family unit and provides financial support to his partner and daughter. As the primary earner he is repaying a mortgage in his partners name. Arguments have been provided to the Tribunal at review as to the effect that the cancellation of the applicant’s visa would have on his family in Australia and why there is a compelling need for the applicant to remain in Australia. The Tribunal gives significant weight to this consideration in favour of not cancelling the applicant’s visa.

   The extent of compliance with visa conditions

2. There were no conditions attached to the Bridging visa that is the subject of the cancellation and thus this consideration is not applicable to the applicant’s circumstances.

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

3. The evidence before the Tribunal indicates that the applicant has been in a long-term partner relationship with an Australian citizen. The evidence before the Tribunal indicates that the applicant and his Australian partner are engaged to be married which is suggestive of the committed nature of the relationship. The evidence before the Tribunal indicates that the applicant and his Australian citizen partner have an Australian citizen daughter, Tealia, who is 21 months old.

4. The evidence indicates that the applicant is the primary breadwinner for the family, working for the past 6 years assembling air-conditioning units. The applicant’s partner is primarily involved in caring for their infant daughter.  Evidence has been provided to the Tribunal which indicates that there would be an adverse financial impact on the applicant’s partner and child in the event that the applicant’s visa remains cancelled.

5. In addition to this the evidence indicates that the applicant’s partner and child would suffer emotional hardship if the applicant’s visa remained cancelled and the applicant had to remain offshore awaiting the outcome of his prospective spouse visa. The delegate concluded that the applicant’s partner and child would be able to reside with the applicant in Vietnam of the applicant’s visa was cancelled. Arguments have been raised about the risk and impracticalities of this given that the world is in the grip of a global pandemic.

6. The Tribunal gives this consideration significant weight in not cancelling the applicant’s visa.

   Circumstances in which ground of cancellation arose

7. The applicant advised the Tribunal that he had no criminal antecedents in Vietnam. The Tribunal discussed the offence in issue with the applicant at hearing. The evidence indicates that the applicant and his partner were arguing, the applicant’s partner threw a number of items at the applicant, the applicant pined his partner to the ground to restrain her and that things escalated between them with his partner calling the police who attended the premises. The evidence indicates that the applicant was coveted to Fairfield Police Station and that he was then made the subject of an interim family violence order, fitted with an electronic bracelet and advised that he could not approach his partner until the matter had been dealt with in the courts. The evidence indicates that the applicant was then charged and later convicted of assault within a domestic setting.  The applicant’s partner advised the Tribunal in her evidence that there had been no incidences of violence prior to this incident and none since the offending occurred.  The applicant’s partner advised that she expected that the applicant would be given a warning by the police and that she did not expect it would be elevated to a criminal charge being laid.  

8. The evidence before the Tribunal indicates that the applicant pleaded guilty to the offence before a Magistrate on 26 November 2019 at the Liverpool Local Court and that he was not legally represented in the matter, nor had he obtained legal advice in relation to the matter.  The applicant’s migration agent suggests that the outcome may have been different for the applicant if he had of been legally represented and defended the charge. The evidence indicates that as a consequence of the applicant being convicted of the offence in the Local Court, after entering a plea of guilty that he had to engage in a 12 month community correction program which he has completed, he had to attend an anger program which he did, and he had to be overseen for 12 months by community corrections which he complied with. The evidence indicates the applicant has not engaged in any further offending. The evidence also indicates that the applicant appealed the decision of the Local Court Magistrate to the District Court citing the unfairness associated with him not being legally represented and that the District Court on 22 July 2020 found the offence proven but issued a directive that no conviction be recorded.

   Past and present behaviour of the visa holder towards the department

9. The applicant through his representative notified the Department of the criminal conviction the day before he was issued with the NOICC. The delegate concluded that it was the e-mail notification by the Department advising of an impending NOICC that prompted this notice from the applicant. The applicant also notified the Department in a form 1023 that he had provided an incorrect answer in his Bridging B visa application, namely a failure to list the conviction. The delegate concluded that this was also prompted by the e-mail advising of the intention to send the applicant a NOICC. The Tribunal notes that there was a lapse in time in which the offence occurred and the date on which the applicant provided the Department with notification of the offending. The Tribunal notes that the applicant is from a non-English speaking background and that upon engaging with a migration agent he was given advice, to notify the Department about the offending, with which he duly complied.

   Whether there would be consequential cancellations under s.140

10. There are no persons whose visas would be affected by consequential cancellations. 

    Whether there are mandatory legal consequences

11. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The Tribunal notes that the applicant is in a long-term relationship with an Australian citizen and is engaged to be married to her. In addition to this the applicant has a 21 month old Australian citizen daughter and he is the primary breadwinner for his partner and daughter.

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

12. There is an Australian citizen child affected by the cancellation. Australia is a signatory to the international Convention on the Rights of the Child. Evidence has been provided which indicates that the applicant is the primary breadwinner for his Australian citizen wife and Australian citizen daughter. Given the current pandemic it is in the best interests of the applicant’s daughter that she remains in Australia being given the emotional and physical and financial support of both her parents. The Tribunal finds that Australia’s international obligations would be breached as a result of the cancellation. The Tribunal has given consideration to the best interests of the Australian citizen child of the applicant and gives this consideration significant weight in not cancelling the applicant’s visa.

    Any other relevant matters

13. The applicant’s partner and mother in law provided statutory declarations attesting to the applicant’s good character and noting that the offending in issue was an aberration. The Tribunal accepts that evidence. The Tribunal accepts that those who gave this evidence believe the applicant to be a good partner and father.

14. The Tribunal has considered the totality of the applicant’s circumstances.

15. The Tribunal has also had regard to discretionary considerations. The Tribunal acknowledges that there would be significant hardship caused by the cancellation. The applicant has a prospective spouse visa which has not yet been determined.  If this application is approved it will enable the applicant to remain in Australia on a permanent basis with his Australian citizen wife and child.

16. There are no consequential cancellations as a result of the cancellation of the applicant’s visa. Australia as noted is a signatory to the Convention on the Rights of the Child and there is a 21-month old Australian citizen child of the applicant who depends on the emotional, physical and financial support of the applicant.

17. The Tribunal accepts the applicant’s evidence about the circumstances in which he was charged with a criminal offence of assault within a domestic setting and the circumstances pertaining to this offence have been corroborated in the statutory declarations provided to the Department and Tribunal by the applicant’s partner and mother in law.  The Tribunal accepts the applicant’s evidence pertaining to the circumstances in which this charge was dealt with by the Local Court of NSW, with the applicant pleading guilty to the offence at the first available opportunity to do so and without the benefit of legal representation or legal advice.  The Tribunal acknowledges the applicant’s evidence that he is remorseful about the incident in which the police attended his and his partner’s premises in November 2019.  The Tribunal has had regard to the fact that on appeal to the District Court that no conviction was recorded in relation to the applicant.

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

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the holder’s Subclass 020 (Bridging B) visa.

    John Cipolla
    Senior Member