Nguyen (Migration)

[2020] AATA 2553

Nguyen (Migration) [2020] AATA 2553 (18 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phuong Tuan Nguyen

CASE NUMBER:  2000016

HOME AFFAIRS REFERENCE(S):          BCC2019/4617240

MEMBER:Brendan Darcy

DATE:18 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 18 May 2020 at 3:46pm

CATCHWORDS
MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – criminal convictions and imprisonment – visa, study, work and relationship history – breakdown of first relationship and withdrawal of sponsorship – bridging visa granted in association with partner visa application with second partner – partner a business owner experiencing downturn because of coronavirus – applicant primary carer of young Australian citizen child with possible developmental delays – decision under review set aside

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 30 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) 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 the applicant has been convicted of an offence against a law of the Commonwealth, State or Territory, whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 14 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s putative spouse, Ms My Hang Ta. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and Vietnamese and English languages.

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

5. 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

6. 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?

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

7. 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 Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(ao) is relevant, which states:

   (ao) 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 – 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))

8. The applicant, a citizen of Vietnam, was born on 11 June 1989. He first arrived in Australia on 21 May 2013 while holding a Class TU Subclass 573 visa to complete a Master’s degree in business management or studies. On 24 July 2014, the was applied for a partner visa on the basis of being in a married spousal relationship.

9. A Class UK Subclass 820 temporary partner visa was granted to the applicant on 5 September 2014, but the relationship broke down and the applicant informed the Department to have his visa withdrawn on 18 October 2018. The applicant was granted a Bridging A (Class WA Subclass 010) visa on 2 October 2018.

10. On 2 October 2018, the applicant submitted a combined Partner (Subclass 820/Subclass 801) visa application, sponsor by My Hang Ta. The applicant was granted an associated Bridging A (Class WA Subclass 010) visa on 2 October 2018 in association to this application. The applicant’s Bridging A visa ceased on 20 December 2019. The applicant was granted a Bridging E visa (Class WE Subclass 050) with work rights attached on 3 February 2020).  The partner visa application is pending a primary decision to be granted by the Department.

11. On 29 November 2019, the Department issued the applicant a Notice of Intention to Consider Cancellation (NOICC) to the applicant and sought written responses from the applicant.

12. The NOICC outlined three offences for which the applicant had been convicted and sentenced or penalised:

    A Commonwealth offence for attempting to traffick controlled drugs. On 2 August 2019, a County Court in Melbourne convicted and sentenced the applicant to nine months imprisonment to commence on 1 September 2019; and to be released after serving three months on entering recognizance self $1000 to be of good behaviour for six months.

    A Commonwealth offence for presenting false identity information in relation to air passenger tickets for constitutional flights. On 2 August 2019, a County Court in Melbourne convicted and sentenced the applicant to nine months in imprisonment to commence on 1 September 2019. To be released after serving three months on entering. Recognizance self $1000 to be of good behaviour for six months. 11 days pre-sentence detention reckoned as already served.

    A Victorian State offence for driving whilst authorisation suspended. On 8 May 2015, Victorian Magistrates Court convicted the applicant and a community correction order for two months to perform 20 hours of unpaid community work was issued.

13. The NOICC stated the applicant was liable to have his Bridging A visa cancelled under section 116(1)(g) of the Migration Act relying on the prescribed ground at regulation 2.43(1(ao).

14. The Tribunal received a written response to the NOICC on 14 December 2019. The response appears to concede that the applicant has committed one offence in the past and that he was sentenced to a term of imprisonment for his serious offending and expressed remorse for his unlawful behaviour it did not involve actual harm to the community. In support of his response, the applicant submitted the sentencing remarks of Judge O’Connell dated 2 August 2019. The remarks note the applicant pleaded guilty to a charge of attempting to traffick a controlled drug, namely cannabis, in a traffickable quantity and to a related offence which involved using a false identity to travel on a commercial flight. The remarks conclude by detailing the applicant was convicted of these changes and sentenced to a total effective sentence of ten months’ imprisonment.

15. On 30 December 2019, a delegate on behalf of the Minister proceeded to cancel the applicant’s visa as the delegate was satisfied there are grounds for cancellation under s.116(1)(g) of the Act. In particular, the applicant cited the abovementioned sentencing remarks from 2 August 2019, including a reference to a conviction for an offence under Victorian law for driving with a suspended licence on 8 May 2018.

16. The applicant applied to have the delegate’s cancellation decision to the Tribunal on 2 January 2019 with the delegate’s record of written reasons for the cancellation attached.

17. On 11 May 2020, the applicant’s representative provided a written submission to the Tribunal prior to the scheduled hearing. That submission did not outline any reasons that the grounds for cancellation did not exist.

18. During the scheduled hearing, there was no dispute by the applicant that the grounds for cancellation did not exist in the first place because the applicant had been convicted for offence breaching Commonwealth relating to trafficking drugs and a Victorian law relating to road safety.

19. Based on the evidence before it and with none to the contrary, the Tribunal is satisfied that the applicant was convicted and sentenced for three offences which are detailed above.

20. 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

21. 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

22. In 2013, the applicant was a visa holder of student visa for the purposes of completing a Master’s degree in business management or studies. Prior to coming to Australia, the applicant had completed a Bachelor’s degree in maritime safety in Vietnam. At the hearing, he claimed he found his English language proficiency insufficient when he began the Master’s coursework and decided not to complete a Bachelor’s or Master’s degree in favour of a Certificate III in hairdressing. As the decision record, indicates, the applicant did complete a English language coursework and a Certificate III in hairdressing.

23. The applicant further explained that he married Ms Le Hang Vi whom sponsored him for an onshore partner visa.  A temporary partner visa on 2 October 2018. The applicant did not continue with his studies because, it was claimed, his married spouse insisted he work full time to meet a level of material attainment that she demanded. The Tribunal enquired into the reasons the applicant did not continue his studies, given he would be better paid if he has a diploma or even a Master’s degree in Australia.

24. When this married relationship broke down and informed the Department to withdraw his partner visa, the applicant did not reapply for a student visa, but for another partner visa with Ms Ta as the sponsor. At the time of application, Ms Ta and the applicant were expecting a child. Ms Ta gave birth to the applicant’s biological daughter, Evie Nguyen, in December 2018. 

25. The original purpose of the applicant’s travel was full time study in a Bachelor’s or Master’s degree at an Australian education institution. The claim that he was unable to persevere with a Master’s degree was not convincing, given the applicant completed an English language coursework. Although he completed a Certificate III, completing vocational coursework was not the original purpose of travelling to Australia. The applicant applied for a partner visa in July 2014 – about fourteen months after arriving. The relatively short period of time between arrival and lodgement of a partner visa does invite the Tribunal to consider the applicant travelled to Australia for the purpose of migrating here permanently and not for full time study. The Tribunal reluctantly accepts there is a lack of evidence to make such an adverse finding.

26. Nonetheless, given the applicant completed some vocational coursework, it does appear the applicant did attempt to full studies although not strictly commensurate with the original purpose of studies. At the time of the second partner visa application, it was open to the applicant to apply offshore. The Tribunal further accepts the applicant has remained in Australia primarily while his current parent visa is pending and that he has an Australian citizen child living here. It is entirely natural that he does not wish to be separated from his new partner and their biological child.

27. Overall, the Tribunal places a notable amount of weight in favour of the visa being cancelled given his original purpose of travel was full time study in a degree and not in vocational studies and not to pursue permanent residency through partner visa applications. 

    the extent of compliance with visa conditions

28. There is no evidence before the Tribunal that he has breached any conditions imposed on any of the visas he has held in the past. The Tribunal places some weight on this record of compliance in favour of the visa not remaining cancelled.

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

29. There is a likelihood that the applicant would cease having the permission to work, study or reside in Australia if this visa is cancelled. The Tribunal accordingly has considered the financial, emotional and psychological impact on the applicant and his family.

30. The applicant and his spouse (as a witness) provided written and oral evidence that they will be emotionally and psychologically impacted if this visa remains cancelled. The applicant claimed that the separation of him from his family will cause much distress but he does not have any mental or physical health problems. The applicant’s spouse specially claimed to be impacted by a history of depression but is not currently being treated.  No documentary evidence from a medical professional of past counselling or treatment was produced. They also both expressed their shared fear that if the applicant does not have work rights, their financial stress will be exacerbated.

31. Given the applicant’s spouse owns and operates a licenced café and, at the time of this decision, there is an economic downturn caused by the coronavirus pandemic, the Tribunal accepts the oral evidence that they both live under considerable financial stress in a time of the current public health emergency.

32. Of primary concern to the Tribunal has been the hardship considerations towards the applicant’s child. The applicant claims to be the primary carer of the child while his wife works. The applicant is not able to work at his wife’s licenced café on site due to his criminal record. At the time of making this decision, the applicant and the witness stated that they fear their child is underdeveloped – physically and intellectually – for the child’s age.  They claimed their daughter was underweight, not walking and that her verbal skills were limited. They further said the doctor provided some instructions, but they are waiting for an appointment with a specialist paediatrician to gain a more thorough diagnosis. Although the Tribunal does not have any documentary evidence before it, it accepts the oral and written claims about the care and fears of development for the applicant’s child. In this regard, the Tribunal does not find there is a degree of exacerbating hardship of the whole family unit arising from these circumstances.

33. When cumulatively considering the above, the Tribunal finds there is a strong degree of financial, emotional and psychological hardship to be faced by the applicant and his family should this visa remain cancelled. While it is not convinced the degree of hardship cumulatively amounts to a significant amount, the Tribunal is particularly mindful that the applicant’s wife owns and operates a business and that their child may be developmentally and emotionally disadvantaged if this visa remains cancelled. The Tribunal accordingly places considerable weight on a relatively high degree of hardship that may be faced by the applicant, this putative spouse and their shared biological child.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

34. This bridging visa was cancelled because there are three convictions against the applicant for breaching two serious criminal laws of the Commonwealth in relation to trafficking and because he drove without a suspended licence in 2015. After pleading guilty, the applicant was penalised for each of the offences. A copy of the August 2019 sentencing decision by Judge O’Connell was submitted by the applicant’s representative to the Tribunal

35. The applicant has claimed to the sentencing judge, to the Department and the Tribunal that at the time of the offending involving drug trafficking the applicant was experiencing severe financial hardship in the period of his arrest in 20 November 2018. He also claimed that he was preyed upon by people who targeted vulnerable international students and temporary residents and that he saw the offending as an opportunity to obtain a quick and large sum of money.

36. In the NOICC, the applicant claimed the offending was harmless and for this to be taken into account. However, in the scheduled hearing with the Tribunal, the applicant stated that he understands that his offending was a serious matter that does harm to the community.  Although he argued he was young, gullible and naive while under financial duress at the time, the applicant had work rights.  He also admitted to the Tribunal that his offending has been motivated by greed and that many other temporary migrants in similar position did not opportunistically breach Australia’s criminal laws against drug trafficking.

37. With regard to the breached road safety laws, the applicant claimed that he did not understand at the time of his offending how the road laws worked in Australia and he thought he would be travelling a short distance and not be detected for driving with a suspended licence. Driving with a suspended licence indicates that the laws had been clearly explained to the applicant. Furthermore, stating that one believed he would not be detected in his offending indicates the applicant knew it was unlawful to drive with a suspended licence, even for a short distance at the time of the offending. As reasonably well-education person, the Tribunal does not accept these weak excuses.

38. The applicant’s unacceptable offending against Commonwealth and Victorian laws were not motivated by naivety, gullibility, youth, ignorance or significant financial distress as variously claimed by the applicant.  Nor were the circumstances leading to the grounds for this visa’s cancellation beyond the applicant’s control. While the applicant was expecting his first child with Ms Ta, the applicant did not have any significant or severe or even notable extenuating circumstances at the time in which the grounds for cancellation arose. While the applicant has expressed remorse after these offending led to convictions, the applicant’s offending were motivated by greed, opportunism and a degree of disregard for Australia’s laws designed to protect those susceptible from harmful drug use and to protect drivers, riders, passengers and pedestrians who have the reasonably expectation that they will be safe from those breach road laws.

39. The Tribunal accordingly places considerable weight on the lack of extenuating circumstances, leading to the grounds for cancellation in favour of this visa remaining cancelled.

    past and present behaviour of the visa holder towards the department

40. There is no evidence before the Tribunal that the applicant has been uncooperative with the Department or departmental staff. The Tribunal places a little weight on this factor in favour of the visa not remaining cancelled.

    whether there would be consequential cancellations under s.140

41. No dependants as subsequent visa holders have ever been attached to the applicant’s cancelled Bridging A visa. The Tribunal places no weight on this factor either in favour or against this visa remaining cancelled.

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

1. During the hearing, the legal consequences of this visa remaining cancelled were discussed. If this visa remains cancelled the applicant is likely to remain on a Bridging E visa. Given there are ‘no work’ conditions of his current visa, the applicant will be likely to be permitted to work until his parent visa application’s primary decision is finalised by the primary decision maker. There is a risk that the partner visa is not granted which will narrow the applicant’s visa options, although he has appeal rights to the Tribunal and the Federal courts. There is also a very remote risk the applicant will be detained in immigration detention while these appeals take place but he will be allowed to apply for a Bridging E visa in such circumstances.

2. Overall, the Tribunal does not anticipate a real chance of the applicant being significantly and adversely affected by the legal consequences of this visa remaining cancelled. Accordingly, it only places a small amount of weight in favour of the visa not being cancelled.

   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

3. During the scheduled the applicant was asked if there he had any concerns about his safety in retuning to Vietnam, to which he replied that he was not. It was also noted that the applicant has not applied for an onshore partner visa and would not be subject to section 48 of the Act limiting his options to apply for this humanitarian category of visa. There are no suggestions that the cancellation of this visa would breach Australia’s nonréfoulement obligations under any international treaty or protocol in this regard.

4. The Tribunal has also considered the Convention of the Rights of the Child (CROC) which states the best interests of the child must be a primary concern in making decisions that affect them. It also states that children should not be separated from their parents against their will. In this regard, the Tribunal is mindful that the applicant’s infant child and that the applicant is the primary carer of his child. If this visa were to be cancelled the applicant is not necessarily precluded from remaining in Australia. However, there is a likelihood that he will lose his work rights to generate income for his family while in Australia. In this way, the applicant will not be separated from his child and the child can continue to receive care and support from both parents and through social security benefits, albeit under greater financial distress than exists at the time of making this decision.

5. There are some foreseeable negative or adverse impacts on the applicant’s child and its development arising from this visa remaining cancelled. However, the degree of hardship is not so severe that it triggers Australia’s international obligations towards the child in question. This is because the applicant has a limited number of visa options to remain in Australia which will not lead to the child in question from being separated from one or both of his parents. While this child is of primary consideration for the Tribunal, it does not accept the consequences of cancelling this visa would result in a breach of Australia’s international obligations.

6. Having considered Australia’s international obligations as a whole, it only places a little weight on this factor in favour of the visa not remaining cancelled.

   if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

7. Not applicable.

   any other relevant matters

8. It is noted that the applicant had claimed in his NOICC response that the offence for which he was convicted did not involve actual harm to the community. The delegate’s cancellation noted the offence, if successful, posed a risk to the harm and safety of the community However, the applicant stated in the scheduled hearing that he now understands that the drug he attempted to traffick, marijuana, does cause damage to the community. According to the Australian government website, healthdirect.gov.au, marijuana has harmful physical effects and it can trigger psychotic disorders like schizophrenia in people who are already at risk developing the disorder. It also states that people who use it over long periods can become dependent, lose their sex drive, have problems with their memories, develop learning difficulties and ruminate about suicide. 

9. The Tribunal has been concerned that the applicant’s earlier attestation in the NOICC that his offending as being harmless or victimless to the community is a late revision put forward to the Tribunal, not because he has changed his views or opinions, but solely to garner a favourable outcome from this review. On the occasion, the Tribunal is satisfied that the applicant, who is a reasonably educated person, is as informed as he claimed in the hearing. He expressed remorse and admitted that greed had played a role in his terribly judgement at the time of this serious offending. Like the delegate, the Tribunal accepts this remorse to be genuine.

10. The applicant’s offending attracted a light sentence for acting as a courier for approximately nine kilograms of cannabis with a potential street value of 180,000 Australian dollars and the related offence of providing a false identity for interstate air travel within Australia (in an age where fears of terrorism are heightened). This serious offending was amazingly opportunistic and imprudent, entailing potential harm to vulnerable members of the community.

11. Nonetheless, the applicant pleaded guilty to the charges against him, served a sentence in prison and did not breach sentencing requirements while during a good behaviour period. There is no evidence of him being a non-compliant during imprisonment. Nor is there any evidence the applicant has reoffended. The applicant also appears to have been compliant with conditions imposed on previous visas he had held. The impact of the applicant’s offending has caused personal shame, distress to his family and limited his capacity to find a broader range of remunerative activities in Australia.

12. In visa cancellation matters, this decision maker is mindful it is not the role of the Tribunal to further punish the applicant for offending where sentences have been served. Given his sound record of compliance towards Australian laws since his sentencing, the Tribunal has placed some notable weight arising from his remorse and lack of further offending in favour of this visa not remaining cancelled.

    Summary

13. The grounds for cancellation of this visa were made out. The offending outlined above had been serious.

14. However, taking all these factors into consideration, the impact of this visa remaining cancelled on his partner and his infant daughter has been the Tribunal’s primary consideration. It is accepted the applicant’s daughter has some developmental delays and that his wife is living with a notable degree of financial and psychologically distress as both as a mother and as a business operator during the current and ongoing public health emergency related to the coronavirus pandemic. The hardship, cumulative considered, to be faced by the applicant and his family if this visa remains cancelled is not severe but it is sufficient to be characterised as considerable. The Tribunal has accordingly placed considerable weight in favour of the interests of the applicant’s family, especially his Australian citizen child, being better served by restoring this subclass of bridging visa under review to the applicant.

15. The Tribunal accordingly places more weight on those factors in favour of this visa being restored than those in favour of the visa remaining cancelled.

16. The applicant should be aware that it only reached this decision marginally in his favour.

    Conclusion

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

    DECISION

18. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Brendan Darcy
    Member