Nguyen (Migration)

[2019] AATA 3705

Nguyen (Migration) [2019] AATA 3705 (29 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Hai Nguyen

CASE NUMBER:  1816383

HOME AFFAIRS REFERENCE(S):           BCC2016/1494068

MEMBER:Louise Nicholls

DATE:29 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 29 March 2019 at 10:24am

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) – Subclass 050 (Bridging (General)) – criminal conduct – drug related offences – low tolerance for criminal behaviour – mother-in-law and wife would be affected – not incurred any institutional black marks  – low risk of re-offending – decision under review set aside

LEGISLATION

Drug Misuse and Trafficking Act (NSW), ss 23, 25(1)
Electricity Supply Act 1995 (NSW), s 64(1)

Migration Act 1958 (Cth), ss 116, 499
Migration Regulations 1994 (Cth), cl 6(1), r 2.43(1)

CASES

ACH15 v MIBP [2015 FCCA 1250

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Vietnam and is 24 years of age. He arrived in Australia as the holder of a student visa on 22 March 2015. He was first granted a bridging visa on 19 April 2016 and then was granted a subsequent bridging visa on 1 July 2016. While holding this Subclass 050 (Bridging (General)) visa he was charged with a number of drug-related offences which allegedly took place on or about 5 April 2018.

2. On 29 May 2018 the delegate of the Minister for Home Affairs cancelled the applicant’s visa under s.116(1)(g) of the Migration Act 1958 (the Act) on the basis that the applicant had been charged with multiple offences against the law of the State of New South Wales. Those offences were set out in attachment A to the cancellation decision.

3. The offences set out in attachment A are as follows:

   ·Supply cannabis/ indictable and commercial quantity T1- s.25(1) Drug Misuse and Trafficking Act 1985.

   ·Possess cannabis/ indictable and commercial quantity T1- s.23(1)(C) Drug Misuse and Trafficking Act 1985.

   ·Use/consume/waste electricity without authority T1-.64(1) Electricity Supply Act 1995.

   ·Cultivate prohibited plant/ large commercial quantity/ cannabis SI-.s.23(2)(A) Drug Misuse and Trafficking Act 1985.

   ·Supply prohibited plant/ large commercial quantity SI- s.23(2)(B) Drug Misuse and Trafficking Act 1985.

   ·Possess prohibited plant/ large commercial quantity cannabis SI- Drug Misuse and Trafficking Act 1985.

4. This is an application for review of that decision and it was made on 5 June 2018. The applicant provided a copy of the decision record dated 29 May 2018.

5. The decision record noted that, at the departmental interviews held in May 2018, the applicant stated:

   ·His visa should not be cancelled because he has learnt that he has done the wrong thing and from now on he will be a good citizen and contribute to society.

   ·He and his wife would like to have a baby and if the visa is not cancelled they will all live together. He noted that his mother-in-law is divorced and she will live with him and his wife.

   ·If his visa is cancelled his wife would be disappointed and may get into trouble due to the cancellation. Neither he, nor his wife, have any children at the moment. He was financially assisting his wife and supporting her as she is studying and working in childcare.

   ·He requested to be given a chance to be with his family and for his visa not to be cancelled. He also stated that his visa should not be cancelled as he has not yet been convicted.

   ·He stated that his initial purpose in travelling to Australia was to study. He met his current wife after he arrived so his purpose to remain in Australia is to be with his wife and to live together. His intention is to also look after his mother-in-law as she is divorced and his wife and mother-in-law are sad and lonely.

   ·With respect to the circumstances in which the ground for cancellation arose he stated that he was not aware that the vehicle he was using was linked to marijuana. He was using a friend’s car because he did not have enough money to buy a second car. He and his wife only had one car.

   ·The delegate noted that the applicant has been cooperative with the Department and had previously advised the department that he had ceased his studies and had requested a student visa cancellation so he could apply for partner migration.

6. The applicant appeared before the Tribunal by video conference from Long Bay Remand Centre on 2 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and his mother in law. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. After hearing some evidence from the applicant and his witnesses the Tribunal adjourned the hearing to await the outcome of the applicant’s sentencing hearing in the District Court listed for 9 November 2018.

7. The applicant was represented in relation to the review by his registered migration agent.

8. On 14 November 2018 the applicant’s representative provided short submissions on the outcome of the sentencing hearing held on 9 November 2018 and attached a copy of the Intensive Correction Order made by the District Court of NSW on 9 November 2018 and the Intensive Correction Order Work Instruction dated 12 November 2018.

9. The Tribunal has also obtained a copy of Judge O’Brien’s sentencing remarks made on 9 November 2018.

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

    CONSIDERATION

11. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

12. 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?

13. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43((1)(p)(ii) is relevant.

14. The applicant provided a copy of the cancellation decision indicating he had been charged with the offences set out earlier in this decision. The applicant gave oral evidence that he had been charged with six offences as set out in the cancellation decision. However he stated that his charges would be finally dealt with on 9 November 2018. The applicant indicated that only one of the charges would be dealt with at the hearing to take place on that date.

15. The New South Wales Courts and Tribunal online registry indicated that the charges against the applicant were listed for a sentencing hearing in the District Court Campbelltown on 9 November 2018.

16. The documents provided by the applicant’s representative following the sentencing hearing indicate that the applicant was convicted of one offence, that is, “Supply cannabis >indictable quantity& < commercial quantity T1”.

17. The District Court’s sentencing remarks indicate that the applicant pleaded guilty to one count of supplying a prohibited drug being approximately 8.3 kg of cannabis in breach of s.25(1) of the Drug Misuse and Trafficking Act.

18. At the time of cancellation the evidence indicates, and the Tribunal finds, that the applicant was charged with six offences against the laws of New South Wales. At the time of this decision the Tribunal finds that the applicant was convicted of one offence as set out above.

19. 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 power to cancel the visa should be exercised.

    Consideration of discretion

20. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

21. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

22. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

23. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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’.

    Background

24. The applicant was born in Hai Phong, Vietnam and is now 24 years old. The applicant’s parents live in Haiphong; his father is a rural worker and his mother is a housewife. He has one younger brother who is living with the applicant’s parents in Hai Phong and currently attending high school.

25. The applicant attended high school in Hai Phong and then went on to complete two years at a college in which he studied to be a medical assistant. He did not complete that course as he said it was too difficult and he persuaded his parents to allow him to apply for a student visa to come to Australia and undertake other studies.

26. The applicant arrived in Australia on 22 March 2015 as a student visa holder and attended English language courses at TAFE in the CBD of Sydney. He told the tribunal that he did a number of months of English language studies but found he could not complete the course due to stress, difficulties with the course and missing his family.

27. He stopped studying when he met his wife in 2015. He was working as a kitchen hand in a Vietnamese restaurant and was introduced to his wife through his friend Loan. He and his wife moved in together sometime in 2015 and they married on 16 January 2016. They have not been back to Vietnam to celebrate their wedding due to financial constraints.

28. The applicant’s wife is a childcare worker and is currently working full-time in that occupation. She was born in Australia and is an Australian citizen and has sponsored the applicant for a partner visa. His application is still in progress and his representative stated that processing times range from 18 months to 2 years at the moment.

29. The applicant’s mother-in-law gave evidence that she has been living with the couple since they started living together. She is 46 years of age, divorced and no longer works.

    Primary Considerations

30. One of the prescribed primary considerations in cl.6 of the Direction is the Government’s view that the prescribed grounds in r.2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework.[1] The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously.[2] The decision-maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[3]

    [1] cl.6(1)(a) of Direction No.63.

    [2] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [28]-[31]

    [3] ACH15 v MIBP [2015 FCCA 1250 (Judge Smith, 19 May 2015) at [33].

31. The other primary consideration in the Ministerial Direction refers to the best interests of children in Australia under the age of 18 years. At the Tribunal hearing the applicant stated that were no children under 18 years who would be affected by the cancellation.

    Secondary Considerations

    The impact of a decision to cancel the visa on the family unit.

32. The applicant stated that his mother-in-law is divorced and has been living with the couple in their rented home. He stated that his mother-in-law would be affected because she is sick and he needs to be living at home to assist in her care. He stated that what has happened to him has been very shocking for her as his wife is her only child and she is very attached to her. If his visa is cancelled he loses the ability to help in looking after his mother-in-law and his wife because they will be separated. His mother-in-law stated in her evidence that she has migraine and pain in various parts of her body which causes her to take painkillers.

33. He stated that his parents in Vietnam are very shocked and upset about what has happened to him. If his visa is cancelled they will be very distressed.

34. The applicant stated that if his visa is cancelled he and his wife will be separated which will cause them both to be upset and distressed.

35. The applicant stated that he did not have a stable job before he was taken into custody but did work about three days a week on a casual basis as a kitchen hand or handyman. The family’s main source of income was his wife’s salary as a full-time childcare worker.

36. The applicant’s representative submitted that the couple were very young when they married; he was 21 years old and she was 18 years old. The applicant’s wife has sponsored the applicant for a partner visa and they are in a genuine relationship and he has strong grounds for the grant of the visa. If the applicant’s visa was cancelled it would have a serious and damaging impact on their partner relationship. The applicant’s wife and mother in law visited the applicant once a week while he was held in remand in prison.

    The degree of hardship that may be experienced by the visa holder if the visa is cancelled;

37. The applicant stated that he would suffer hardship because he and his wife would have to live apart if his visa was cancelled, there would be no one to look after his mother-in-law because his wife was working full-time and there would be no one to look after the house.

38. The applicant agreed that he was currently held in custody in Long Bay Remand Centre and that bail had been refused prior to his next court appearance. He stated that his charges are next scheduled for a court listing on 9 November 2018. He advised that he has a criminal solicitor acting for him in those proceedings.

39. The applicant applied for a partner visa in about April 2016 and as far as he understands the application is still in progress.

    The circumstances in which the ground for cancellation arose.

40. The Tribunal obtained a copy of the sentencing remarks made by the District Court on 9 November 2018.

41. The court noted a number of matters relevant to its consideration of the sentence to be imposed. It noted that the facts upon which the applicant was sentenced indicated that in April 2018 police received information in relation to the cultivation of cannabis at an address in Eagle Vale. On 5 April 2018 the police observed the premises for two days and noted that two vehicles left the premises, one was a van driven by a co-offender and one was a vehicle driven by the offender. The police sought to stop both vehicles. The vehicle driven by the applicant stopped immediately, however, the van sped away with the police in pursuit. The police subsequently found a large amount of cannabis in the van.

42. The police then conducted a search of the premises they had been observing earlier and found a sophisticated indoor hydroponic set up growing cannabis over three levels inside the house. There were six dedicated cannabis growing rooms with plants in one of those rooms having been recently harvested.

43. The applicant later pleaded guilty to being involved in the supply of the cannabis found in the van.

44. The court noted that the factual matrix is another example of what the court regrettably saw so often, which was young men of Vietnamese origin involved in the cultivation of large quantities of cannabis plants. The court noted that the applicant was not charged with that offence but the court expressed some regret that these young men continued, despite the sentences that are imposed upon them, to become engaged in this type of criminal conduct.

45. The Crown case was that the applicant was in this particular growing house for two hours on one single day for the purpose of packing cannabis into boxes. He was to be paid $400 for his engagement in this enterprise.

46. The court noted that the applicant is married and prior to incarceration was living with his wife and her family. He had been employed in Australia since he arrived in March 2015, initially as a kitchen hand and then later as a handyman. Since he has been in custody he has engaged in unpaid work cooking for other inmates. He had not incurred any institutional black marks against him for misconduct and was not a management concern. He had no prior record and no mental illness or other intellectual disability.

47. The court noted he had a degree of support in the community and that his wife was present at the sentencing. He was assessed by community corrections as a person with a low risk of reoffending and suitable to undertake community service work. He hopes to return to work as a kitchen hand upon his release from custody. He entered a plea of guilty at the earliest available opportunity and his penalty was adjusted in accordance with that early plea.

48. The court noted that the supply of drugs is a serious criminal offence and noted the harm it causes in the community. The applicant indicated that since he has been in custody and exposed to people who have issues with drugs he has become aware of the fact that drug offending has a serious consequence and something that causes real difficulty within the community. He has expressed remorse and the court accepted that the remorse was real. His engagement and his behaviour was short lived, isolated and has had a very significant consequence. He has spent seven months in custody. The court noted, however, that the sentencing assessment report described a lack of insight by the applicant and accordingly the court decided to release him into the community with an intensive correction order rather than a community service order. The court explained that an intensive correction order is still a sentence of imprisonment.

49. The court noted that the applicant had serious migration issues in the Administrative Appeals Tribunal but that was not a matter for its consideration.

50. The conditions of the intensive correction order were that the applicant must not commit any offence and must submit to supervision by the community corrections office and to undertake one hundred hours of community service within the meaning of the legislation.

1. The court observed that the applicant had engaged in criminal conduct to obtain the sum of $400 which was the amount he was paid for packing the cannabis.

2. The applicant told the Tribunal that he understood the serious consequences of his conduct. He had spent seven months in custody and caused extreme distress to his wife and mother in law.

   The possible consequences of cancellation;

3. If the applicant’s bridging visa is cancelled he will become unlawful and will remain in detention until his migration status is finalised. He will either; be granted a substantive visa and released from detention, or he will depart Australia.

4. The Tribunal is satisfied there is no prospect that the applicant will be held in indefinite detention.

   Any other matter considered relevant.

5. The applicant’s representative submitted that the applicant was sentenced on 9 November 2018 and issued with an intensive correction order on 12 November 2018. The applicant was released from custody on 9 November 2018 and returned to live with his wife and mother-in-law at their rented home. The applicant commenced community service work at Phouc Hue Temple on 15 November 2018. The applicant’s representative submitted that the Tribunal should take into account the age of the couple and the support given by the applicant’s wife and mother-in-law for the applicant.

   Conclusion

6. The Tribunal has had regard to the principle that the Australian government has a low tolerance to criminal behaviour, of any nature, by noncitizens who are in the Australian community on a temporary basis and who do not hold a substantive visa. It has considered this as a primary consideration.

7. The Tribunal finds that there are no children under the age of 18 years in Australia who will be affected by the cancellation.

8. The Tribunal finds that the applicant was initially charged with six drug related offences. However he was only convicted of one of these offences after he pleaded guilty to the offence of supplying an indictable quantity of cannabis. While the information provided to the delegate on the circumstances of the offence differed from the evidence he gave to the Tribunal and the material in the sentencing remarks, the Tribunal considers that during his seven months in custody the applicant has reflected on his conduct and has accepted some responsibility for his actions. He gave evidence that he was sorry for his actions and acknowledged the serious impact it has had on his family members.

9. The Tribunal notes that the sentencing judge in the District Court found that the applicant had been convicted of one offence involving the packing of cannabis for two hours on one single day and being paid the sum of $400 for that activity. The sentencing judge also found that the applicant had no prior convictions, had entered a plea of guilty at an early stage, had spent seven months on remand, had been co-operative while held in custody and appeared to be remorseful for his conduct. The court also noted the sentencing report stated there was a low risk of offending. He was released on an intensive correction order with a condition that he undertake 100 hours of community detention. The evidence indicates he was released in November 2018 and returned to live with his wife and mother in law.

10. The Tribunal considers that the offence for which the applicant has been convicted is a relatively serious offence. However, he is being punished for this offence and if his bridging visa is cancelled he will be kept in detention while he is waiting for the processing of his partner visa application. The Tribunal considers his relationship with his wife and mother in law would be affected by any further period of detention and he would be unable to work and financially contribute to the family household. The Tribunal has also taken into account the applicant’s relative youth at the time of the offence and the considerable family support he has received from his wife and mother in law following the charges. If the applicant is detained he will not be able to serve his intensive correction order and complete his 100 hours of community service.

11. In all the circumstances, the Tribunal has concluded that his visa should not be cancelled. It has considered the government’s low tolerance of criminal behaviour as set out in the primary considerations and the relative seriousness of the criminal offence with which he was convicted but finds that his youth, the limited nature of the criminal offending as found by the District Court, the punishment imposed for the offence, his low risk of re-offending, the importance of the applicant being able to complete the 100 hours of community service which is a condition of his sentence and the impact on his family relationships if the visa is cancelled, outweigh those factors which indicate the visa should be cancelled.

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

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    Louise Nicholls
    Senior Member