Nguyen (Migration)

Nguyen (Migration) [2019] AATA 6083 (9 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Cuong Nguyen
CASE NUMBER:  1822428
HOME AFFAIRS REFERENCE(S):          BCC2018/3822544
MEMBER:Michael Cooke
DATE:9 October 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
Statement made on 09 October 2019 at 1:10pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – risk to good order of Australian community – applied for partner visa while studying – student visa cancelled for poor study record – associated bridging visa ceased – unlawful non-citizen for one day – second bridging visa had ‘no work’ condition – work doing small tasks at a significant commercial cannabis cultivation operation – tribunal’s discretion to defer decision until after criminal trial completed – conviction without imprisonment – intensive corrections order – judge’s finding of prior good character, low-level role and low risk of re-offending – cooperation with police and assistance with inquiries – implausibility of some claims – likely consequences of cancellation and return to Vietnam – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 166(1)(e), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8101, 8202
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 30 July 2018 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).
The delegate cancelled the visa under s.116(1)(e) on the basis that the delegate was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community . The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 4 October 2018 and 12 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and a good friend of the applicant. The Tribunal hearings were conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent (Ms Cheryl Kurana) who attended the hearings.
The applicant has issued a submissions and additional information to the Tribunal pursuant to the case and the Tribunal appeal as follows: (T1, ff.108-134, 54-66, 14-17)
·Court sentencing Summary;
·Judicial Sentencing statement;
·Charge Certificate;
·A statement of the agreed facts;
·A Court Report;
·A Psychologists’ Report on the applicant;
- A Psychologists’ Report on the sponsor;
·An Affidavit support from Dinh Liem Nguyen;
·Submissions concerning the case;
·A Statutory declaration supporting the applicant;
·A support letter from Tina Nguyen
·A copy of a Marriage Certificate for the parties;
·Bank Statements
On 19 February 2019 the Tribunal issued an Invitation pursuant to s.359A of the Act as follows:
The particulars of the information are:
Information sourced from the Departmental data base indicates the following:
·Your Student visa was cancelled on 29 November 2016 for breach of condition 8202.
·You made an application for a Partner visa (Subclass 820/801) on 30 March2016 and were granted a BVA concurrently with expiry date being 29November 2016. You applied late for renewal of your BVA on 30 November 2016 and became unlawful - for a day. Due to your one day of unlawfulness you were granted a BVE subsequently with the following attached Bridging visa conditions: 8101(no work), 8207(no study), 8401 (report as directed), 8506 (notify change of address), 8510 (present valid passport). You breached the ‘no work’ condition 8101 attached to your BVE (issued on 30 November 2016) when you were observed by Police working at a cannabis cultivation house at various times in December/January 2018. You were subsequently charged by New South Wales Police on 16 May 2018 for an offense involving cannabis cultivation.
This information is relevant to you because it indicates that you have a history of noncompliance with visa conditions attached to visas issued to you by the Department.
This information is further relevant as it may be the reason or form part of the reason for affirming the decision to cancel your Subclass 820/801 Partner visa.
You are invited to give comments on or respond to the above information in writing.
The applicant responded to the Invitation (through his representative) on 19 March 2019 as follows:
We refer to the above matter and write in response to your invitation to comment or respond to information dated 19 February 2019. We note that as per your correspondence on 25 February 2019 we were granted an extension to respond by 19 March 2019.
Our client has been made aware of the information from the Departmental data base which indicates that in December/January 2018 when Mr Nguyen attended the cannabis cultivation premises for work, other than committing an offence against the NSW State law, he was in breach of the 'no work' condition (8101) attached to his Bridging .E visa. We have explained to our client your concern that if this information is accurate it would indicate a history of non-compliance with visa conditions.
We are instructed to respond on behalf of our client by conceding that at the time that he agreed to perform small tasks (such as moving bins) at the cultivation premises in return for some money, it would be considered that he was working. By 'working' at the cultivation premises (no matter how small the task) he breached his 'no work' condition.
We are instructed to respond on behalf of Mr Nguyen as follows:
I am extremely sorry for my actions in the past. As I told the Member during my hearing, I understand there is no excuse for my past mistakes, but I want to tell you again about why I made such mistakes.
After coming to Australia I studied at College as intended. At first I studied English at Western Sydney University but I did not get the required scores to get into my further course. The next semester I enrolled in Kingsway Institute for the 'General English' Course. I always intended to study and get qualifications so I could return to Vietnam and make my parents proud. Education from Australia has a lot of value in the Vietnamese workforce, and so I knew if I completed my studies here I could get a good job when I returned.
While I was studying, I met my wife Tammy. I found her to be an amazing, kind, gentle and genuine person. I met her family, and after dating for some time, we decided to get married. Both of our families were very happy for us. At the time, Tammy and I believed that together and with each other's support we could get through everything.
After our marriage reality kicked in, and I felt overwhelmed by the financial burden of running a household, and the responsibilities that came with being married. Tammy was studying full-time as a nurse. After we got married, I felt a strong sense of responsibility that I needed to support Tammy while she studied. Tammy was very passionate about being a nurse and was doing well at her studies. I didn't want our marriage to get in the way of her achieving her goals. I was not doing well at my studies no matter how much I tried, and I started to feel hopeless. I was also finding it difficult to keep up with the school fees, as well as the household expenses, so I quit studying. I could see that Tammy was stressed with her studying and working, and I was only allowed to work limited hours per week. We were finding it difficult to meet the expenses and rental payments. I was worried that Tammy would regret marrying me and our marriage would fail.
When I look back I now appreciate that Tammy and I got married at a very young age, and that maybe we weren't prepared and didn't understand the nature of the commitment. I should have waited until I completed my studies, and had the required qualifications to secure stable employment before marriage. I believe that I was young and immature in asking Tammy to marry me at such a young age. We were and are desperately in love and at the time, all that mattered to us was committing to one another. After we were married however, the practical problems kicked in. I was so focused on being a 'good husband' who supported my wife, that I made some mistakes which will affect the rest of my life.
As a result of my involvement with the cultivation, I spend time in custody. This was an unforgettable and traumatic experience for me. I have learnt my lesson; however, it was of course a very difficult lesson to learn. Tammy and I are looking forward to this case ending so that we can start our lives afresh with the lessons we have learnt.
I am hoping to find work as an apprentice. I have now understood that academic studies are not for everyone, and I believe that I will be better at a more hands-on career. Tammy has almost completed her nursing degree and is hoping to get a job in her field. Once we both have stable employment we want to save up and one day buy our own home.
I know I have made some terrible mistakes in the past. I was immature and did not think through my actions. Since the beginning of this case, I have instructed a lawyer to act for me in my criminal and visa cases. I understand the importance of understanding and complying with my visa conditions- something I did not understand When I. Was younger. I feel that I was more 'laid back' and didn't think about the consequences of my actions, or did not ask for help when needed it. I now have the support of Tammy's family, and my good friend Dinh Liem Nguyen. I feel that I am more mature after this experience.
I assure you that if I am granted my Partner visa again, I will be very careful not to breach the conditions, and I will definitely be more careful about the people I become involved with."
Please find enclosed supporting material as referred to above.
We hope that you can take into account the changes in Mr Nguyen as a person since the time he became involved with this offence, and now. Mr and Mrs Nguyen are seeking forgiveness from the Australia community so that they can move past these mistakes, and restart their lives together.
Please be advised that Mr Nguyen's criminal matter is listed for sentence on 17 April 2019. Mr and Mrs Nguyen are hopeful that the Court will grant Mr Nguyen a second. chance, and not impose a sentence of imprisonment.. If this happens, and the cancellation of Mr Nguyen's visa is also revoked, this young couple will be able to prove that they have learnt from this experience.
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
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)(e). 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.
The delegate’s decision is found on the Tribunal file.
The First Hearing
The Tribunal (possessed of information that could be the reason or part of a reason for affirming the cancellation) utilized s.359AA of the Act during the hearing. The Tribunal addressed the Police Facts Sheets which gave an elaborate history of the applicant's (alleged at that time) involvement in the cannabis cultivation scheme. The applicant (when invited) chose to comment immediately. His representative took up the offer to issue a later comprehensive submission addressing the s.359AA information post-hearing.
The Tribunal asked the applicant whether he had been bailed for the offence. He said he had been - on 17 August 2018 and was released on 19 September 2018. His bail was $100,000 and included a $10,000 bond in cash from his wife. The Tribunal asked her how she paid that amount. She informed it was derived from "savings and work". A mortgage over a house was also used as a security.
The Tribunal asked the applicant how he had become connected with the perpetrators of the cannabis house project. He informed the Tribunal that he "went to have coffee and someone approached him". In December of 2018 he was informed of nature of the chores. He had to take care of a small house, take the garbage out, collect letters and mow the lawn.
The Tribunal observed that the (cannabis cultivation) property was not small and asked him how it did not occur to him that major criminal activity was taking place within the premises. Was he oblivious to the cannabis growing enterprise? He responded that he was told 'just to do his duties' in the smaller house (the property comprised two buildings conjoined). He said he was in a difficult situation. He had got married in December 2015.
The Tribunal asked him about his Student visa history and cancellation. He said he went to work but could not 'combine work and study' after he got married. He left his studies but did not tell the Department. He just got married. He was working when he applied for the Partner visa.
The Tribunal asked him whether he noticed any cultivation tools at the cannabis house or materials for hydroponic cannabis installation. He said he did smell cannabis and was worried and scared.
The Tribunal asked him who owned the Aurion car which he drove and which had been surveilled by the Police. He said he did. The Tribunal asked him (in view of his claim to be impecunious) how he paid for the vehicle. He said it came from accumulated savings and his wife's money.
The Tribunal asked him whether his wife had questioned him about his activities. He said she would be sleeping and he would wake her up and inform her he was going out with friends. She was unaware of his night time activity. She was shocked when she found out what he had actually been doing.
The Tribunal asked him who owned the blue car which he was driving when the Police arrested him. He said it was a friend who had gone overseas. He had no idea why there was a separate set of number plates in the back seat.
He commented on the s.359AA information as follows. His Student visa mistakes were a product of ignorance. He was young and immature. When he was offered the job in the cannabis house he did not know anything about cannabis and only after he went a few times did he know. He just collected the bins but it was stressful. He did come to Australia but the study got too hard.
The applicant's sponsor wife informed she was lost for words such was her shock about his activities. She always found him to be a genuine person. There was a Court mention coming in October - she informed. They were trying to resolve the matter and were speaking to Police.
The witness said she had known the applicant for 4-5 years and he was a very good person. She was not aware of any illegal activities in which he was embroiled. She said there had been some talk of cannabis cultivation around the Vietnamese community but she would never associate with him if she did not think he was a good person and certainly would not put up her house as bail security. If he were removed from Australia it would severely affect his married life. He was the same age as her son. The couple need to be together and for him to help his wife. The other witness advised that he had offered him a job in his construction company. If he thought he was a bad person and committed wrong things - he would not have done so.
The applicant said he did not think carefully when he made the mistake. His involvement was beyond his control and it was never his intention to be involved in cannabis cultivation. He had been under financial stress. He apologized for his behaviour and said he was aware of how dangerous cannabis cultivation was to Australia. He was sorry for his wife that she had gone through all the stress and pressure he had caused her. He had not for instance been able to ring her from jail when he initially incarcerated and she did not know where he was. Two weeks later she found out visa friends. He was attending a psychologist now and would seek help.
The Second Hearing
The Tribunal had been made aware by the representative (Ms Kurana) that the applicant had been found guilty of crimes and now had a criminal conviction. The Judge relented on the sentence and did not incarcerate the applicant.
The Tribunal asked the applicant whether he had ever been to jail. He responded that he had been in jail when on remand. He advised he had been sentenced to six months and given an intensive correction order. The judge did not impose any further requirements or conditions pursuant to his release.
The tribunal asked him what had happened to other parties involved in the crime. He said there was no co-accused. The Tribunal indicated it meant other people working there. He said he did not know anything about them.
The tribunal asked him what he was doing with himself presently. He said he spent most of the time learning English studying online and practising with his wife and the children of friends. He said he had a very clear understanding of the situation he was in.
The Tribunal observed that throughout the matter he had portrayed himself as an innocent who just fell into the cannabis cultivation clean-up job. He said he was sad about his situation and it was not true that he had wasted his time and he could have delivered.
The Tribunal asked him why he was so negligent in his studies and maintaining his academic status. He said he had studied but English was difficult. He said he decided to change direction. He said he continued to make an effort but faced continual disappointment. He tried to continue. The Tribunal put it to him that his aim was to get permanent residency and that with an imminent cancellation he had to have a ‘fall back’ position in a Partner visa. Helpful and serendipitously his friend introduced him to his now wife. He was asked in view of his academic problems he simply did not return to Vietnam. His Student visa had been cancelled. He said he got married before his Student visa cancellation fell due.
The Tribunal then commented that the applicant had firstly breached his Student visa. He then breached his Bridging visa A by showing up late to apply and ended up with a Bridging visa E (BVE) – a visa of last resort.
(The Tribunal finds on reflection that in fact It appears that since the applicant’s Subclass 573 visa was cancelled for lack of enrolment on 29/11/2016, the Bridging Visa B held by the applicant (because he had made a Partner visa application on 30/3/2016) simultaneously ceased (vide cl.010.511(b)(vi) of the Regulations and s.82(7) of the Act). Consequently, the applicant became unlawful and applied for a Bridging Visa E to remain lawful while his Partner visa application was processed).
He then effectively breached that Bridging E visa by working in the cannabis cultivation business as a cleaner. What did he say about that sequence of events? He said the reason was that he did not understand the law fully and his intention was to help his wife in her daily life.
The Tribunal the referred to the applicant’s meeting and employment with the cannabis cultivators and terms of employment and that he thought he could just coast along until the grant of his Partner visa. Yet he claimed he did not understand what he was doing and was lucky to avoid a jail sentence. The cultivation was over 500 plants. The smell alone would have alerted him. He then failed to tell his wife what he was doing at strange hours and days and he drew the attention of the Police.

The Tribunal commented that it had offered the applicant the maximum opportunity to get procedural fairness and to explain why the cancellation should not be upheld. His representative had asked for him to be able to sit his trial for the Judge’s summary to be submitted and the Tribunal had acquiesced in all this. The Tribunal said after months of extensive revision of the case it could not understand the mindset of the applicant. Was he in a ‘parallel universe’ as if in a different universe to everyone else. His wife had clearly explained her predicament if he returned to Vietnam. He would arrive in Vietnam with his hands dangling and no story to tell his parents.
The Tribunal asked him what the reaction of his parents was to his criminal conviction. Had he told them the complete facts and not a candy coated story? He said he had done so.
The sponsor interrupted to confirm that she had been the one who had to contact his parents and tell them the whole story. He said his mother was so shocked she had to be hospitalized and his father cried in front of him - which he had never seen happen in his life.
He informed he had two sisters living in Vietnam.
The Tribunal then outlined its need to make a series of considerations of his personal history regarding cancellation and his representative had given the Tribunal everything it had asked for. Her representation was very professional and she had done everything to assist the Tribunal in understanding the case.
The Tribunal observed the representative’s submission and read out salient parts. There was an Intensive Corrections Order in place of imprisonment for a possible 15 years. He did not even go to jail for the 6 months sentence. He could have been required to do onerous activities as part of the sentencing and did not. He had received an excellent outcome all things and this would be considered by the Tribunal which would give significant weight to the Judge’s statement. The Tribunal read out the applicant’s plea for lenience in view of the Judge’s findings in particular his ‘low level role’ ‘prior good character’ and the fact ‘his Honour decided to let him learn from the experience and start afresh’. These considerations the Tribunal indicated would go directly to assessing whether he was a risk etc to the Australian community etc.
The Judge concluded “it was highly unlikely he would commit offences in the future”. “he was at low risk of re-offending” …“the Order would protect the community”…”This young fellow was someone who lapsed in ignorance” and “who was not deeply embedded in criminal behaviour”. The Tribunal said that this would be a major consideration of the Tribunal in its deliberation.
The Tribunal asked the applicant what hardship he would suffer if his visa cancellation were affirmed. He said in response that it would be really difficult and he would suffer. He had been away from Vietnam for 6 years and a lot had changed. He had no skills and no degree. It would be a difficult life if he had to start from zero. It would be hard to find a job and having a wife with him would be even more difficult and there was the different Vietnamese accent issue to contend with.
The Tribunal asked him why he had not renewed his Bridging visa on time and why did he not request ‘permission to work’ in view of his family situation. In response he said he did not think it was possible and put it down to lack of knowledge.
The Tribunal asked him what he was doing between the time he was granted the BVE and his involvement in the cannabis matter. He said he was staying at home and they got Centrelink rent assistance due to his wife’s studies. He got involved in the cannabis matter because he didn’t have permission to work and wanted to get paid regularly.
The applicant’s best friend (Mr Dinh Liem Nguyen) also gave oral evidence. He said since he met his friend was a ‘good personality person’. At the same time he was very young when he committed the offence. If he returned to Vietnam he would have the love of his parents which was not as strong as the love of his wife. Husband and wife was a problem which was not bearable. He was compassionate of his friend’s problem because he knew what it was like to be separated from your wife as he had the same problem at age 21 and had been reunited. The tribunal thanked him for raising the issue of hardship amongst other issues. The Tribunal noted his point about interfamilial hardship.
The Tribunal invited the sponsor to make a final statement. She said she would follow him anyway but it would very difficult but to be separated from her husband based on his childish antics. She and he were from different areas and she would have to settle in the South. They would have to pay rent and would not have family support from her parents. This would be difficult. In her statement the sponsor said that the applicant’s parents were not well off in Vietnam. She was graduating soon and she had the chance of a job. IIn Vietnam there would be uncertainty and her family and friends were all in Australia. She would be starting from scratch.
The applicant said he had in the past “committed wrong things” but please understand he was very young and did not share things with his wife at the time. The past could not be changed but he committed to change in the future and plead for the Tribunal’s understanding.
The Tribunal in summary referred to various aspects of the activities of the applicant and its impact on the cancellation decision. All the oral evidence would form part of the decision along with the information submitted by Ms Kurana in the past and recently. The Tribunal was satisfied it had explored the entire applicant’s history and would make a brand new decision.
Does the ground for cancellation exist?
s.116(1)(e) - risk to Australian community or individual
A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].
The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
The information before the Tribunal is that the applicant has allegedly been involved in activities relating to cultivating cannabis in commercial quantities. The Tribunal notes that as a result of this alleged involvement he was charged by the New South Wales Police on 16 May 2018 for the following offence:
·Enhanced indoor cultivation plant for commercial purpose Si
The Police report advises the following information:
On 28 October 2017 police received information that a number of males were observed unloading cannabis plants from a large white truck and carrying them into a property in Strathfield. The neighbouring premises shares common areas to the property and is leased under the same agreement.
Police surveillance undertaken throughout December 2017-January 2018 observed the visa holder's (applicant’s) vehicle parked near the residence on multiple occasions. He was also observed entering the premises and moving garbage bins on site. On 16 January 2018 the visa holder (applicant) was followed by Police leaving the premises in his vehicle. He was stopped by Police in Chullora, and he produced a valid Vietnamese driver licence and a current NSW Photo Card confirming his identity.
On 30 January 2018 police executed search warrants on the residence in Strathfield. 530 cannabis plants were found within the premises. The plants were seized by Police who estimate the value of the plants to be $1,501,000.
On 16 May 2018 police observed the visa holder (applicant) at a restaurant in Bankstown and placed him under arrest. The visa holder was fingerprinted and photographed. A forensic procedure was conducted and a sample of his DNA was obtained. He is now charged with the matter before the court.
According to the Australian Criminal Intelligence Commission, cannabis is a depressant drug, which slows both cognitive and physical responses. Cannabis may also produce hallucinogenic effects when large quantities are used. Effects of cannabis use may include a sense of mild euphoria and relaxation, changes in sensory perception, loss of inhibitions and talkativeness. Short-term effects of use may include blurred vision, increased heart rate and bloodshot eyes. Long-term effects of cannabis use may include memory loss, mood swings, paranoia, impaired cognitive function and basic motor coordination.
Cannabis use may also cause a condition called drug-induced psychosis, exacerbate existing psychotic symptoms and may decrease the chance of recovery from a psychotic episode. Cannabis users with a psychotic illness may experience increased hallucinations, delusions and other symptoms and have a higher rate of hospitalisation for psychosis.
In his response to the Notification of Intention to Consider Cancellation (NOICC) issued on 3 July 2018 the applicant’s nominated representative provided the following information:
·There is no evidence to suggest that the visa holder (applicant) was involved in "large scale drug distribution activities." The offence with which the visa holder (applicant) has been charged is that of "cultivate a prohibited plant" for a commercial purpose.
·The Australian system of law is founded on a presumption of innocence. The visa holder intends to pursue a defence and has not been convicted nor made any admission of guilt.
·It is not the role of the Department to determine whether or not the visa holder (applicant) is guilty, but rather to simply consider the fact that he has been charged with an offence and whether such indicates that he is a risk to the safety and best interests of the Australian community.
·The charge cannot be substantiated by the evidence in the police facts and so there is insufficient evidence before the Department to find that the visa holder's (applicant’s) involvement in any suspicious activities warrants him as being a community risk.
·The police information does not specifically indicate the visa holder's (applicant’s) involvement. His car was observed at the premises however he was not sighted at the location which contained cannabis. Therefore, he may have lent his car to someone who was on the premises. The adjoining premises where the visa holder was sighted moving bins, did not contain any plants, but rather general household items. Collectively these items may seem suspicious, however, they were dispersed around the property. Furthermore, the visa holder is neither the owner nor lessee of the premises.
·Police confirmed the visa holder's (applicant’s) identity after he produced his driver's licence when requested to do so police. The visa holder (applicant) was co-operative and voluntarily produced his identification.
·Police located 530 cannabis plants in the premises, with an estimated street value of $1,501,000. This would have required a complicated hydroponic set up that the visa holder wouldn't have had the financial capacity to fund. The visa holder (applicant) was 23 years old at the time of the offence and performed casual work. Therefore, the cultivation was arranged and operated by other people. The visa holder (applicant) intends to provide as much assistance as possible to police in identifying the persons responsible.
In response to the NOICC, the applicant has also provided the following supporting documentation:
·NSW Police Force Property Seizure/ Exhibit Form dated 30 January 2018
·A Bail Chronology and Submissions document as follows:
The Crown submits that in this matter there are the following bail concerns:
Section 17(2)(a) Risk of Non-appearance
Section 17(2)(c) Risk of danger to the Victim, Individuals, the Community
On 30 January 2018 Police raided some buildings in Chalmers Road, Strathfield that had previously been a nursing home. Inside they found a hydroponic cannabis plantation with-the usual items of equipment and bridged electricity meters. A total of 530 plants were found growing there.
Police had had the properties under observation since a tip-off on 28 October 2017 that some Asian men had been seen unloading plants from a truck and taking them inside the premises. The Applicant's car was sighted in the courtyard on 23 December 2017 and was seen again at or near them on 2 January 2018, 9 January 2018 and 16 January 2018. On the last three occasions the Applicant himself was seen there pushing wheelie bins and exiting the front door of the building at 11 Chalmers Road. On the final occasion the Applicant was stopped by police ostensibly for a breath test and Identified but was not charged.
The case against the Applicant appears to be reasonably strong and there was no apparent legitimate reason for him to be present at the abandoned nursing home on multiple occasions.
The Applicant was arrested and charged on 16 May 2018 and has been in custody bail refused since then. He was refused bail in the Local Court due largely to the risk of non-appearance. The Applicant has no criminal record but is a Vietnamese national in Australia on a spousal visa. Police say that he was unemployed and not in receipt of any government benefits and provided no details as to his financial position. The Crown submits there is a relatively limited risk of the commission of further like offences but the main concern is what would appear to be his limited community ties that add to the risk of flight given his connection with his country of origin. On 16 January 2018 he was driving on a licence from Vietnam but was carrying a NSW ID Photo Card.
The offence is a serious one that carries a maximum penalty of 20 years imprisonment under s33(1)(a) and s33(3)(b) of the DMTA as the large commercial quantity for enhanced cannabis cultivation is 200 plants and 530 were located in the search.
The applicant’s representative has made the following points in her submission:
On 16 August 2018 Mr Nguyen was granted Supreme Court bail as it was found by Justice Hulme of the Supreme Court of New South Wales that Mr Nguyen was not a flight risk given his ties to the community. The Court also acknowledged and stated at the time of making this decision that it is very likely that the matter will be resolved relatively quickly once Mr Nguyen's actual role in the offence is determined. We submit that despite noting the likelihood of a plea of guilty and that Mr Nguyen would probably be convicted and be subject to a possible maximum penalty applicable to such offences, the Supreme Court granted Mr Nguyen bail as an indication that he would not receive a full-time custodial sentence. It is a general principle in criminal law that a Court will not grant bail in relation to criminal offences where there is a strong Crown case arid the offender is likely to receive a term of imprisonment - so as to avoid the offender coming in and out of custody rather than serving a continuous period on remand to be considered as time served in custody on sentence. We also enclose for your reference a copy of the Bail Submissions prepared by the Crown which confirm in the last paragraph that:
"The Crown submits there is a relatively limited risk of the commission of further like offences".
We submit that the Crown's view in this regard should be considered if the Tribunal is assessing whether Mr Nguyen will/can be a risk to the Australia community in the future.
On 18 September 2018 Mr Nguyen entered bail and was released from custody. This was at a time when the surety gained access to the money required to enter bail.
We ask you to consider that in cancelling Mr Nguyen's visa the case officer has exercised a discretionary power which will have life changing effects on Mr Nguyen and his wife. We submit that this decision has been made prematurely by drawing conclusions in the absence of the complete story. This matter is yet to be resolved and considered by the criminal Courts. The case officer has made a decision to cancel Mr Nguyen's visa and send him back to Vietnam (essentially a penalty in itself) solely based on the prima facie evidence provided by the Police. The choices faced by his Australian citizen wife are to either uphold the vows she made to her husband or be separated from her home and family in Australia. We also ask you to please consider that this situation relating to his visa has arisen at a time when the family are already stressed and anxious about the criminal Court proceedings.
We note that case officer's comments in their decision that they are not required to find that a conviction has been recorded; they are only required to find that Mr Nguyen will/may be a risk to the Australian community. Mr Nguyen's role and involvement has not yet been determined by the Courts. Findings in the criminal matter should have significant weight when determining whether Mr Nguyen will be an ongoing risk to the community. Factors that should be considered once the Court proceedings have finalised include the significance of his involvement, the extent of his role, and the level of his association with the principals. These are all matters yet to be determined by the criminal court, the proceedings for which remain outstanding. As such, we submit that the cancellation of Mr Nguyen's visa at this time is premature and made in the absence of sufficient evidence.
We understand that the Tribunal's role is not to determine the innocence or guilt of the appellant in relation to the outstanding charges; however in assessing whether or not Mr Nguyen is a risk to the Australian community the Tribunal would require further information to justify the evidence presented by the police. As such, we confirm that Mr Nguyen wishes to appear in person at the hearing and voluntarily provide his version of events to the Tribunal so as to satisfy you that his involvement in this offence was the result of unfortunate financial circumstances and a naive mistake. He is extremely remorseful for having any involvement and is dedicated to never becoming involved with the wrong people in the future.
Mr Nguyen wishes to confirm that he did not know the people who hired him prior to the offence, and has had no contact with them since January 2018. It may not be appropriate for us to offer Mr Nguyen's version in these submissions, as such this will be left to Mr Nguyen to offer as a witness at the hearing on 4 October 2018. We confirm that Mr Nguyen has not as yet had the opportunity to provide this evidence to the criminal Court, however he has seen the impact this visa cancellation has had on his wife and his relationship with her, and so he is voluntarily offering the complete story to the Tribunal in the hope that he can satisfy you that his involvement in this offence was completely out of character and a lapse in judgement at a desperate time.
Mr Nguyen has told us that he fully appreciates the effects of drug use on the community, and he has experienced this first-hand during his time in custody. He was surrounded by people facing the symptoms of withdrawal and could see the significant impact drug addiction has on members of the community. This was the first time that Mr Nguyen has been incarcerated and he tells us that he found this time very confronting.

While the Tribunal acknowledges that the applicant at first denied the charges he was facing, but was subsequently convicted and given a six months suspended sentence. it is the responsibility of the Tribunal to consider whether the applicant may pose a risk to the health of the Australian community.
The Tribunal recognises that having discovered the cannabis enterprise the authorities have closed it down. The applicant for his part has indicated his remorse for having any involvement and he claims it was all an innocent mistake. He has blamed (in his first submission) the financial pressure of wanting to be a good provider husband for his student nurse wife was a contributing factor to his breach of visa conditions. He insisted he is dedicated to never becoming involved with the wrong people in the future. His representative has suggested:
The Crown's bail submission states that 'there is a relatively limited risk of the commission of further like offences'. We submit that the Crown's view in this regard should be considered if the Tribunal is assessing whether Mr Nguyen will/can be a risk to the Australia community in the future.
Mr Nguyen's role and involvement has not yet been determined by the Courts. Findings in the criminal matter should have significant weight when determining whether Mr Nguyen will be an ongoing risk to the community. Factors that should be considered once the Court proceedings have finalised include the significance of his involvement, the extent of his role, and the level of his association with the principals. These are all matters yet to be determined by the criminal court, the proceedings for which remain outstanding. As such, we submit that the cancellation of Mr Nguyen's visa at this time is premature and made in the absence of sufficient evidence.
However in assessing whether or not Mr Nguyen is a risk to the Australian community the Tribunal would require further information to justify the evidence presented by the police.
His involvement in this offence was completely out of character and a lapse in judgement at a desperate time.
He fully appreciates the effects of drug use on the community, and he has experienced this first-hand during his time in custody. He was surrounded by people facing the symptoms of withdrawal and could see the significant impact drug addiction has on members of the community.
The Tribunal extended its discretion to allow the criminal trial to be completed before making its decision. This was due in no small part to the significant charges faced by the applicant and in particular the possibility of a heavy sentence.
The applicant’s representative (in her submission post trial) has noted that the Judge made some remarks regarding the applicant in his summing up as follows:
In relation to Mr Nguyen's role: "I can draw no consequences adverse to the offender beyond a reasonable doubt in what has been described in the agreed facts." (Last sentence Page 4). "At paragraph 34 through his attendance at the properties, removal of rubbish, taking the bins in and out, he aided others to cultivate a commercial quantity of cannabis through enhanced indoor means. This was by maintaining the appearance of the property." (Line 6, Paragraph 2, Page 5).
"The actual behaviour he was involved in was in no way, shape or form the kind of hands-on involvement which one occasionally sees, there is no watering, there is no carting of fertiliser, there is no turning on or off of lights, there is no pruning, there is no preparation. All of those things are not part of this activity which would normally aggravate the objective seriousness to a significant degree." (Line 9, Paragraph 2, Page 7).
In relation to the extent of his knowledge:
"He was aware that the premises were being used for the cultivation of cannabis. The Crown cannot prove beyond a reasonable doubt, and so they concede that he was not aware of the specifics or indeed of the actual number of plants and so he is to be sentenced on the basis that he was aware that there would have been at least 50 plants, which is over the amount required." (Line 1, Paragraph 2, Page 5).
The Judge's overall finding of his role: "He was doing it as someone required to do what the key principal offenders wanted, and that was to make it look like they were not cultivating by enhanced indoor means therein, and that they were maintaining the property in a manner consistent with usual residence. I note the Crown fairly conceding that whilst it was for financial reward, it is inherent to the offence and is not a specific aggravating factor." (Paragraph 2, Page 6).
In relation to how the Mr Nguyen (the applicant) came to be involved:
"A fellow, he tells me, has a job for him, he gave the offender the address of the house at Strathfield, asked him to go there and take out the rubbish, mow the lawns, pick up the mail, keep an eye on the houses. He was told he was not to do or worry about anything inside the big house. He told him the key to the small house was hidden at the front. He was told to vary the times he attended the property, sometimes during the day, sometimes at night. He said that he agreed to do that because he wanted to contribute financially to try and reduce the financial burden on his wife. Whilst it is a self-serving statement in the psychological report and the offender has not given evidence I am inclined to accept that that is the explanation here." (Last Paragraph, Page 5).
"I note that he is unable to work in Australia due to his bridging visa. Fie was financially dependent on his wife and that no doubt was a significant aspect." (Line 7, Paragraph 2, Page 7).
"So all up this man has been, through his own endeavours and his own criminal activity, plucked from the streets straight into custody, a not insignificant amount of custody, and thereafter been in a position which is not quite the kind of oppressive quasi custody which would have a profound bearing on any sentence I impose; nonetheless, it is a matter that I am obliged to take into account." (Line 2, Paragraph 1, Page 7).
"It seems that he just walked straight into this opportunity without really thinking it through and I have already noted that it was a straight line to identify him because he was using a car which was registered to himself." (Line 4, Paragraph 2, Page 7).
In relation to Mr Nguyen's close and supportive relationship with his wife, by way of a subjective consideration:
"He participated in a record of interview, indicated that he was lawfully in Australia on a spousal visa, and nominated his then fiancé, now wife, who is present in Court and has provided a quite moving testimonial in this matter." (Emphasis added) (Line 1, Paragraph 1, Page 5).
"He has a supportive wife who is employed, stable and of good character, as this man previously was." (Last Sentence, Paragraph 3, Page 8).
In relation to the Judge's findings about Mr Nguyen's subjective features:
‘this young man is a man of good character." (Line 2, Paragraph 3, Page 6).
"I do not think he is going to be re-arrested and I think his prospects of rehabilitation are excellent, I think he is unlikely to commit further offences having learnt his lesson, luckily, and at a time relatively early in his life." (Emphasis added) (Line 3, Paragraph 2, Page 8).
"So many of the things that youth offers in terms of prospects are confirmed in this man's case by some underlying aspects." (Line 2, Paragraph 3, Page 8).
"He has previously commenced university studies. He has now got a stable domestic situation. He had previously had employment but due to a change in his visa he was made ineligible. He has difficulty with English but he is working to ensure he can address that" (Line 3, Paragraph 3, Page 8).
"He has expressed remorse and contrition. I accept that. He takes responsibility for his offending behaviour. I accept that." (Line 1, Paragraph 4, Page 8).
Regarding his time in custody and on bail:
"I note that he has got no prior convictions and I accept that, and I am quite aware that he would be very frightened and worried when he was arrested and when he was held in MRRC. He did endeavour to make the most of it; he attempted to do a course there. He found the term of imprisonment difficult because he was not in a position to speak English with fluency and one would understand as a general proposition for a young man of good character and no prior convictions and no prior contact with criminal …(not transcribable)… it would have been a very, very difficult time indeed." (Line 2, Paragraph 3, Page 6).
"He was released to bail on 18 September 2018 having served, on remand, a period of four months and two days. Those bail conditions were not insignificant..." (Line 10, Paragraph 3, Page 6).
"I am not surprised that whilst he was in custody he reflected on his offending behaviour. He looked at cannabis and developed an understanding about why it may be that the parliament has deemed it to be an illegal drug. He is willing to undertake intervention, he is willing and able to undertake community service work, he has not been subjected previously to supervision, he is at low risk of reoffending so therefore any order that is made for supervision is going to be immediately suspended pursuant to the Crimes (Administration of Sentences) Regulations 2014 so I make no order." (Last Paragraph, Page 7).
Regarding the Judge's basis for the decision:
"He served a not insignificant amount of time in custody as a first offender with good character and that four months and two days is a matter I take into account. And I take into account the conditions which he has been subject to whilst on bail from 18 September to today, being April, so that is another seven months. And I say that so it is well understood that the term l am about to impose which might seem significantly short, is seen in its proper context because when one looks at those other considerations that would, if one adds it all together and was imposed today, would lead to a significantly longer sentence." (Emphasis added) (From last sentence Page 8) "I do so because I accept that this man may well be someone who ought to be diverted from the criminal justice system and not embedded in it, and this is a chance that is afforded to so many of his age, and there is every reason to ensure the protection of the community will be achieved by this particular order..." (Line 4, Paragraph 2, Page 9).
"But the way I am looking at this young fellow, he was someone who lapsed, in ignorance, and he was asked to do the kind of things which did not make it incredibly or absolutely evident, that he was involved, or deeply embedded, in criminal behaviour. I am concerned to ensure that he is deflected from an involvement in the criminal justice system." (Emphasis added) (Line 2, Page 10).
"And given that it is a short sentence which reflects the fact he has already done full time custody, and been subject to almost a quasi-custody situation, and he has got other issues to address in terms of his rehabilitation, get a visa, get stable, get a job, get on with life. I am disinclined to see that there are any additional conditions, aside from the supervision which is going to be suspended, which would in any way, shape or form assist in the protection of the community." (Emphasis added) (Line 9, Page 10).
"I find that, in light of the manner in which this man came to be involved, his low level role, the objective seriousness antis offending behaviour which is at the lowest end, the fact that he has already served time in full-time custody and been subject to significant restrictions on his liberty during bail, and the fact that he needs to be diverted from the criminal justice system in order to ensure, to the extent that it is possible, that the community be protected front his further criminal activity which I End is highly unlikely I decline to impose any further conditions." (Emphasis added) (East Paragraph, Page 10).
In addressing Mr Nguyen directly:
"Sir, I've taken a very kind view of you and your circumstances, even though you've committed a criminal offence. I respect the fact that you have stayed out of trouble both before and after this, what I accept is a misjudgement. So whatever associates, associations you had which led to this offer I expect you will renounce. You've got family and friends sitting in the back of the court and I understand you must feel great shame that you have brought them into this room because of what you've done. And you've learned the hard way what gaol is like. You won't do this again will you?" Response: "I never do it again." His Honour continues: "You're a young man with a lot ahead of you, make the most of it, all right? All right? All right, take the chance." (Conversation mid-way through Page 11).
We ask you to please consider the Remarks made by His Honour in imposing a lenient sentence, and more significantly His Honour's findings in relation to Mr Nguyen’s "low-level role", "prior good character" and the fact that His Honour decided to offer Mr Nguyen the opportunity to learn from this experience and start afresh.
We note that in making your decision the primary criteria you are required to consider is:
The presence of (Mr Nguyen) in Australia is or may be, or would be, or might be, a risk to the health safety or good order of the Australian community or a segment of the Australian community.
We note that this was also the primary consideration for the Judge on sentence: "- there is a case of Pullen which indicates protection of the community is the key aspect now in terms of considerations of this sort."
We ask you to please consider His Honour's finding that it is "highly unlikely that Mr Nguyen will commit further offences in the future. This can be concluded from his following comments in particular: "the community (needs to he) be protected from his further criminal activity which I find is highly unary', "he is at low risk of reoffending", "there is every reason to ensure the protection of the community will be achieved by this particular order, and I take into account".
We note that Mr Nguyen's criminal matter has now finalised and you have before you information about the limited extent of his knowledge or role, and the Judge's findings that he was "this young fellow, he was someone who lapsed, in ignorance, and he was asked to do the kind of things which did not make it incredibly or absolutely evident, that he was involved, or deeply embedded, in criminal behaviour." (quoted above).
As such, we submit that based on the above findings, and considering the Judge's decision and Remarks on sentence, you may be satisfied that the presence of Mr Nguyen in the community is not, will not be, and you can be satisfied that there is very little possibility that he may or might be a risk to the Australian community, or any segment of the community.
We seek that the Department's decision to cancel Mr Nguyen's visa be revoked and Mr Nguyen be granted the opportunity to remain in Australia with his supportive wife so they can move past this experience and look to a better future.
Under s116(1)(e), the cancellation ground exists if there is a possibility that the person may be a risk, as well as if there is a demonstrated actual risk. The wording of the legislation at s116(1)(e) makes it clear that these grounds are not dependent on a Court-determined finding of guilt, criminal conviction, or sentencing.
The Tribunal accepts the applicant’s claims (written and oral) that the cultivation of the plants was arranged and operated by other persons. He claims he was hard up financially and through an acquaintance he secured the job. He was basically the guy who took out the garbage and cleaned up one of the cultivation houses which did not contain the actual cannabis plants. He insisted he had no involvement in any criminal activity on the premises. He has also assisted the Police in their enquiries. He has been co-operative with the Police when asked to provide his identification when asked randomly by the Police on various occasions.
However, the level of the activities which took place at the former nursing home (see Bail Chronology and Submissions document in this decision) - is very significant. The applicant’s unlawful employment has led to a charge that he has engaged in activity which relates to the significant cultivation of a prohibited plant. The Tribunal notes that despite the applicant’s claims of general unawareness of what the scale of the enterprise was – it pertains to commercial quantities. A total of 530 plants were found growing there to a value of $1,501,000.
The applicant was also given opportunity, pursuant to s.359AA of the Act, to comment (orally) on other incidents which appear on the Police Facts Sheets concerning his Police history. These include driving around in a car which was not his and which contained a pair of numberplates that did not belong to the car he was driving or to him. This activity when juxtaposed with the scale of the cannabis cultivation house where he worked is a further indication that (despite his denial of involvement in criminal activity) he has been under intense scrutiny by the Police. The severity of the charge was such that the applicant was initially charged and jailed but now has informed (in oral evidence) that he has subsequently been granted bail. At his criminal trial he was found guilty and was sentenced to 6 months jail for the offence but was given no jail time or community work requirement.
The applicant has denied any involvement in the criminal enterprise but the fact is that he worked there. He would have been aware of it from the actual size - especially as he was in charge of garbage removal on one of the conjoined properties. The fact that he was observed furtively removing garbage bins at extraordinarily late hours of the night (on days such as Christmas Eve) leads the Tribunal to finds his claims of non-involvement and unawareness of the serious criminal nature of the activity taking place - implausible.
Subsequently the applicant has spent time in remand and then has been convicted and given a six months sentence with no jail time. The Presiding Judge (as has can be seen from the applicant’s representative’s submission) has been lenient on the applicant. He has insisted that the applicant has not been at the hard core criminal end of the cultivation procedure but rather a minor play in the scheme of things.
"this young fellow, he was someone who lapsed, in ignorance, and he was asked to do the kind of things which did not make it incredibly or absolutely evident, that he was involved, or deeply embedded, in criminal behaviour."
The Tribunal agrees with the learned judge that he was obviously not “deeply embedded” in criminal behaviour” nevertheless the applicant “was involved” because knew what was going on at the property. He was there at strange hours of the night and even on a public holiday. All the while he was hiding this behaviour from his wife - as she admitted in the second hearing. If he had revealed to her what he was doing she may have been able to prevent his further participation. His other behaviour with the number plates is also of secondary concern to the Tribunal.
The applicant (in his written and oral evidence) has portrayed himself as a hapless victim of his impecunious situation. He claims that, due to his wife’s study requirements and the fact she needed to spend less time working he was desperate to contribute to the family finances through work. This claim needs to be juxtaposed with the fact that the sponsor managed to find $10,000 from family savings to offer up as bail.
The fact of the matter is that he did not have permission to work lawfully despite the sponsor’s claimed need to study full time. He then took up a job offer from some individual he claims he randomly met and who was not a friend. This offer was to be a cleaner at a large scale cannabis cultivation house in Strathfield. He claims not to have informed his wife of this activity. Yet she recounted that she was perturbed about the fact that he went to work at strange hours of the night and days - such as Christmas Eve. She claims that she was oblivious to his activity and he effectively lied to her about his whereabouts. She then awoke one day to find her husband had been charged with involvement in a criminal activity.

The applicant in his request to set aside the cancellation has elaborated the persona of someone who innocently performed work for someone he barely knew - and at rarefied hours. He has painted the picture of someone desperate for some income and ready to work despite the prohibition of a ‘no work’ condition on his visa. His representative insists:
‘his involvement in this offence was the result of unfortunate financial circumstances and a naive mistake. He is extremely remorseful for having any involvement and is dedicated to never becoming involved with the wrong people in the future’.
"The Crown submits there is a relatively limited risk of the commission of further like offences".
"There is every reason to ensure the protection of the community will be achieved by this particular order ".
The Tribunal notes that the applicant has a poor visa history with the Department. He barely did any study from the time he entered Australia. His study regime was so negligent that his Student visa was cancelled and he lapsed into unlawfulness. An examination of the applicant’s academic history indicates someone who was never a genuine student despite his claims that his lack of success could be put down to poor English. At the first opportunity he sought to avail himself of a pathway to permanent residence via matrimony to an 18 years old student he met, serendipitously, in a cafe. Furthermore, and despite claims of being hard up for money, the Tribunal was informed (in oral evidence) that he and his wife did not live with her parents. Instead they were able to live separately - apparently with his wife working a part-time job. Subsequently, she found part-time work too onerous due to her intense full time study regime. They were obviously, like many young Australians, financially challenged.
The Tribunal finds that despite his claimed straightened financial circumstances there is no evidence the applicant approached the Department’s to request his ‘no work’ visa condition 8101 be revoked. Instead the applicant claims he sought out work from within his community unlawfully - including from someone he had never met before. Suffice to say that as result of this encounter and his claimed impecunious state he ended up working at a large cannabis cultivation house in Strathfield in 2017. The Tribunal is not aware of what other part-time work the applicant performed but he and his wife were able to afford to rent their place, run a car and afford for her to study full time albeit under straightened circumstances. The sponsor then furnished $10,000 from family savings as bail. He stated that did not tell his wife the true nature of his employment at the cannabis house. The Tribunal find these claims to be implausible when juxtaposed with the facts.
The Tribunal also rejects his claim that he was unaware of the true purpose of the cannabis house venture. The Tribunal find difficult to credit the notion that he ‘just took out the garbage’ and cleaned up the place - oblivious to the true purpose of the conjoined cultivation houses. Yet the cultivation which took place in the conjoined houses (originally a nursing home) involved 530 hydroponically active cannabis plants with a value of $1,501,000 - according to the authorities. An enterprise on such a scale would be hard to disguise. The Tribunal gives his claim of non-involvement or ignorance of the activity therein as implausible. It gives this proposition little favourable weight.
When considering this scale of cultivation it is not feasible that he was unaware of the comings and goings of the proponents of the cultivation scheme. He insists his job was to clean up only one of the conjoined houses. The point was he was not cleaning up late at night at (say) a city office block but rather a house where conjoined was a large indoor cannabis plantation. To comprehend the size it should be noted that the conjoined residences were of such a size that the property was used previously as a nursing home. The Tribunal does not accept that he was under the circumstances (elaborated in the Facts Sheets and put to him pursuant to s.359AA) oblivious to the true situation.
The sponsor, for her part, has suggested she was not aware of the applicant’s new job. Even allowing for her youth and claimed naiveté in believing her husband’s untruths (not to mention her attention to completing her studies) - the claim is implausible. She gave evidence that she asked the applicant what he was doing and why was he going out so late at night. He brushed her off with excuses she claimed. The fact of the matter is that the applicant was engaging in unlawful employment at mysterious hours when his visa condition did not allow it.
The sponsor now claims to be suffering hardship and depression from the outcome of her husband’s criminal history and visa cancellation. So does the applicant. Throughout the parties have insisted on the closeness of their married relationship yet the sponsor was unaware of the applicant’s late night activity. They claimed their financial situation was tight. Yet, mysteriously, the sponsor was able to raise $10,000 from ‘family savings’ to post bail.
The Tribunal finds it reasonable to conclude that entering or remaining in Australia is a privilege. It is expected that non-citizens are, and have been, law-abiding. The Tribunal has noted the sponsor’s claim that she was unaware of the applicant’s activities. She puts it that her husband was essentially on a frolic of his own. The Tribunal finds her claim difficult to credit. The parties had been awaiting permanent residency since March 2016. Their joint life together in Australia would have been assured. The applicant’s dream (which he has espoused at various times to the Tribunal) would have been realized. It is not logical (under such circumstances) that two young closely knit married persons would have allowed anything to fatally impugn a favourable outcome.
The Tribunal is further intrigued with the information elaborated in the Police Facts Sheets (outlined in the hearing pursuant to s.359AA) concerning the random number plates found in the back of the car (not his) when the Police arrested him. The Tribunal is not entirely satisfied with his explanation that there was nothing untoward in certain number plates (not belonging to either his car or to the car which he was driving) being present in the vehicle lent to him by ‘some friends travelling overseas’. This information must be juxtaposed with his ludicrous decision to take a job from someone who he had never met or previously befriended but who was engaged in and introduced him to a major criminal enterprise. This information is of further concern to the Tribunal in its consideration of the cancellation.
The Tribunal has considered the applicant’s erratic visa history. An overall view of his time in Australia is concerning. His plea is that that his misconduct was all a product of youth and immaturity, ignorance of English and of the law. His only desire was to be financially helpful to his wife (despite not having permission to work). The Tribunal is convinced that (despite his claims to the contrary) he had no realistic plan for the future (since arriving in Australia) other than doing ‘whatever it takes’ to remain in Australia.
It is unclear what the applicant was doing in the period between his Student visa cancellation in 2016 and his arrest in 2018. His sponsor wife gave evidence that despite her studying and working part time, they afforded to rent a residence and drive a car. When the time came to post bail (following his time in remand) she was able to find $10,000 as a surety. She claimed in oral evidence the money came “from savings”. What is even more bizarre is that despite the applicant’s primary objective of remaining in Australia he worked in breach of his visa ‘no work’ condition’ impugning that possibility. He followed this by becoming engaged in nefarious conduct with criminal elements which brought him to the attention of the Police authorities. He was then arrested and following trial gained a conviction without jail time. His criminal conduct has given enormous stress to his wife at a crucial stage of her young adulthood and career building. He has impugned his chance of permanent residency. His criminal conduct has led inexorably to the cancellation of his visa by the Department.
The Tribunal has examined the various pleas of the parties in oral and written evidence along with their friends’ testimonials and evidence. It has examined the psychological evidence concerning the parties’ contemporary mental state. The Tribunal has explored the various claims of hardship that would be caused by affirming the cancellation of his visa. The Tribunal has read the helpful information forwarded to the Tribunal from the applicant’s criminal trial and sentencing – in particular the sentencing Judge’s official remarks.
The Tribunal recognises the various remarks of the Judge found in the representative’s submission. It finds the following as being most pertinent to consideration whether to cancel the applicant’s visa:
It is "highly unlikely that Mr Nguyen will commit further offences in the future”.
"He is at low risk of reoffending",
"There is every reason to ensure the protection of the community will be achieved by this particular order ".
The Tribunal finds that despite the adverse account of the applicant’s life in Australia recounted earlier that it gives these particular judicial remarks significant weight in favour of setting aside the cancellation.
The Tribunal is satisfied, on balance, and following the completion of the significant Court case involving the applicant that the ground for cancellation in s.116(1)(e) does not exist.
Considering the circumstances as a whole, the Tribunal concludes that the applicant’s visa should not be cancelled.
DECISION
The Tribunal sets aside the decision to cancel the applicant’s Subclass 820 (Spouse) visa.
Michael Cooke
Senior Member

[2019] AATA 6083

9 October 2019

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Immigration

Administrative Law

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Statutory Construction