Nguyen (Migration)

[2024] AATA 171

Nguyen (Migration) [2024] AATA 171 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tat Tan Nguyen

ADVOCATE:  Ms Roz Germov, barrister

REPRESENTATIVE:  Mr Thanh Nguyen, Solis Lawyers

CASE NUMBER:  2308028

HOME AFFAIRS REFERENCE(S):          BCC2021/511549

MEMBER:Michael Ison

DATE:31 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 31 January 2024 at 5:15pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – criminal conviction – community corrections order including unpaid community work, now completed – sponsor’s mental health – emotional and financial hardship – circumstances of offending – no prior convictions, low-mid range offence, early guilty plea and good prospects of rehabilitation – sponsor’s financial distress, greater role and culpability, and applicant’s recent arrival and dependence on sponsor – knowledge of illegality – conviction not declared on later incoming passenger card – character references – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(g), 375A

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 1 June 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant in this review is Mr Tat Tan Nguyen, who is a 33-year-old national of Vietnam. Mr Nguyen is referred to as the applicant in these reasons for decision. The applicant’s migration history in Australia may be summarised as follows.

3. On 6 September 2019 the applicant applied for an offshore combined Partner (Class UF) (Subclass 309) and (Class BC) (Subclass 100) visa application which was sponsored by his spouse Ms Thi Hoa Diep who he married in Vietnam on 1 June 2018. Ms Diep is a 47-year-old citizen of Australia who was born in Vietnam and had been married three times prior to marrying the applicant.

4. On 15 September 2020 the applicant was granted a Subclass 309 visa. He first arrived in Australia as the holder of that Subclass 309 visa on 21 September 2020.

5. On 1 June 2023 the applicant’s Subclass 309 visa was cancelled by a delegate of the Minister under s 116(1)(g) and reg 2.43(1)(oa). It is the cancelation of the applicant’s Subclass 309 visa that is the subject of this review.

6. On 14 June 2023 the applicant was granted his first Bridging E (Subclass 050) visa that was valid to 1 September 2023. That Bridging E visa had conditions 8101 (No Work), 8207 (No Study), 8506 (Notify New Address) and 8564 (Must Not Engage in Criminal Conduct) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.

7. On 1 September 2023 the applicant was granted his second Bridging E visa, which the applicant continues to hold at the time of this decision. The applicant’s current Bridging E visa has the same conditions as his first Bridging E visa attached.   

   The primary decision of a delegate of the Minister

8. The applicant provided the Tribunal with a copy of the primary decision.

9. The delegate cancelled the visa under s 116(1)(g) and reg 2.43(1)(oa) on the basis that the applicant was convicted of a criminal offence in Victoria. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Tribunal hearing

10. The applicant appeared before the Tribunal on 17 October 2023 to give evidence and present arguments, in person.

11. The Tribunal also received oral evidence from:

    ·Ms Thi Hoa Diep (the applicant’s wife);

    ·Mr Truong Giang Dinh (the applicant’s step son-in-law); and

    ·Ms Gia Han Le (the applicant’s step daughter-in-law).

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

13. The applicant was represented in relation to the review by the applicant’s migration lawyer, Mr Thanh Nguyen of Solis Lawyers who attended the Tribunal hearing in person. Mr Nguyen is referred to in these reasons as the applicant’s representative or the representative.

14. Mr Nguyen instructed Ms Roz Germov of counsel to be the applicant’s advocate at the Tribunal hearing, which Ms Germov also attended in person. Ms Germov is referred to as the applicant’s advocate in these reasons for decision.

    Certificate issued by the delegate under section 375A of the Act

15. On 24 August 2023 the Tribunal wrote to the applicant advising a certificate has been issued pursuant to s 375A of the Act by a delegate of the Minister for Home Affairs on 10 July 2023. A copy of the certificate was attached to the Tribunal’s letter and the applicant was invited to comment on the certificate and the information it applies to. The applicant did not comment on the certificate or the information it applies to.

16. The effect of a s 375A certificate is to prevent the Tribunal from providing the applicant with copies of documents on the Department file on specific public interest grounds. The certificate applies to five documents on the Department file provided to the Tribunal.

17. The information in the documents that was material to the issues before the Tribunal had already been provided to the Department by the applicant. The remaining information mainly related to communications between different operational areas of the Department which the Tribunal did not consider material to the issues in this review.

    Tribunal decision

18. The Tribunal has had regard to the oral evidence of the applicant and the witnesses, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the Notice of Intention to Consider Cancellation of a visa (NOICC) dated 23 April 2023 and the applicant’s detailed response to the NOICC submitted by his representative on 11 May 2023.

19. 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

20. 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) and reg 2.43(1)(oa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s 116(1)(g) - prescribed ground

21. A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Regulations. In the present case, reg 2.43(1)(oa) is relevant.

    Regulation 2.43(1)(oa) provides:

    (1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

    …

    (oa)  in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

22. The applicant concedes that there is a ground for the cancellation of his visa under s 116(1)(g) and reg 2.43(1)(oa) because on 23 November 2022 following a plea of guilty, the applicant was convicted in the County Court of Victoria at Melbourne of one charge of cultivating cannabis contrary to s 72B of the Controlled Substances Act 1981 (Vic).

23. In addition to a conviction being recorded, the applicant was ordered to complete a Community Corrections Order which required him, amongst other things, to complete 150 hours of unpaid community work.

24. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) and reg 2.43(1)(oa) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

25. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances and uses the headings from the Department’s Procedural Instruction for convenience only.

    The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia

26. The applicant’s purpose in travelling to and staying in Australia is to be with his wife, Ms Diep as the holder of a provisional Partner visa. It is that Partner visa that has been cancelled by a delegate of the Minister.

27. There is no information before the Tribunal to indicate that the spousal relationship between the applicant and Ms Diep is contrived for immigration purposes. The Tribunal finds that the applicant’s purpose in coming to and staying in Australia continues at the time of this decision and this weighs against the cancellation of his visa.

28. The Tribunal finds that the applicant does not have a compelling need to remain in Australia given that applicants for provisional Partner visas often have to wait for extended periods overseas whilst their relationship continues. This weighs in support of the cancellation of the applicant’s visa.

29. Overall, the Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa but in the circumstances of this review the Tribunal gives this consideration only modest weight.

    The extent of the applicant’s compliance with their visa conditions

30. There were no conditions from Schedule 8 of the Regulations attached to the applicant’s provisional Partner visa.

31. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

    The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members

32. The applicant gave evidence to the Tribunal that he has a strong desire to stay in Australia to be with and support his wife and that he is very close to his three step-grandchildren, who at the time of this decision are aged eight, four and less than 12 months respectively. The applicant told the Tribunal he often plays with his step-grandchildren, takes them places and assists their parents, Mr Dinh and Ms Le, with school drop offs and pick ups for the eldest child. This evidence was supported by a small selection of photos.

33. Ms Diep gave evidence that she needs the support of the applicant in Australia and cannot leave her children and grandchildren that live in Australia and so would not return to Vietnam with the applicant if the applicant had to leave Australia. In her statutory declaration declared on 9 May 2023 Ms Diep declared:

    I have been suffering from anxiety and depression since we were arrested and charged with cultivation of cannabis plants. I have not been able to sleep since my husband received the Notice of Cancellation of his visa. I need my husband here with me, we have been together a long time, please give me and my husband a chance to be together.

34. In support of these claims the Tribunal was provided with a letter from Ms Diep’s general medical practitioner dated 9 May 2023 referring Ms Diep to a psychologist for “stress related issues and symptom of depression and anxiety”. There is evidence of Ms Diep taking a course of anti-depressant medication in late 2023 in an 11-page written report from Mr Jeffrey Cummins, Consulting, Clinical and Forensic Psychologist dated 13 October 2023 and also in a letter from Dr N C Nguyen dated 14 October 2023 which states Ms Diep has been taking anti-depressant medication since early May 2023. Mr Cummins diagnosed Ms Diep as suffering from Major Depressive Disorder of moderate severity and presenting as moderately depressed. The Tribunal accepts Mr Cummins diagnosis of Ms Diep. There is no evidence before the Tribunal of Ms Diep seeing the psychologist she was referred to in May 2023 and Mr Cummins notes in his report that Ms Diep “… has never received any talking based mental health treatment”.

35. Ms Diep also gave evidence that she continues to have personal debts, although the status and source of those debts was not clear to the Tribunal from her oral evidence but is set out in greater detail in Mr Cummins’ report. Ms Diep told the Tribunal she supports the applicant in his gardening business, although she did not provide specific details about this. Ms Diep further told the Tribunal she receives a payment of AUD666 a fortnight from Centrelink supplemented by financial support from the applicant’s parents in Vietnam.

36. Mr Dinh gave evidence consistent with that of the applicant about the applicant’s involvement with and closeness to Mr Dinh’s three children. Mr Dinh told the Tribunal that the applicant treats his mother very well and that Mr Dinh, Ms Le and their children would be very sad if the applicant had to leave Australia.

37. Ms Le also gave evidence consistent with that of the applicant about the applicant’s involvement with and closeness to Ms Le’s three children, particularly the youngest child who is a toddler with whom the applicant spends more time as the elder children are at school and childcare respectively. Ms Le told the Tribunal that she has found the applicant’s assistance with and closeness to her children to be of great help to her and she sincerely hopes that the applicant’s visa is restored, and he is able to stay in Australia.

38. There is no evidence before the Tribunal of any hardship that anyone else, such as the applicant’s parents in Vietnam, would suffer if the applicant’s visa is cancelled.

39. The Tribunal accepts the evidence of the applicant, Ms Diep, Mr Dinh and Ms Le in relation to the hardship they would each suffer, and in the case of Mr Dinh and Ms Le, their children would suffer, if the applicant’s visa is cancelled.

40. The Tribunal finds that the applicant would suffer considerable emotional hardship and potentially some financial hardship if his visa is cancelled and he has to depart Australia and is separated from his wife, Ms Diep and her family.

41. The Tribunal finds that cancellation of the applicant’s visa would cause Ms Diep considerable emotional hardship as Ms Diep’s evidence was clear that cancellation would cause them to be separated because she does not feel able to leave her family in Australia. The Tribunal also finds that cancellation of the applicant’s visa may cause Ms Diep some psychological hardship, but due to the lack of medical evidence before the Tribunal of Ms Diep following recommended treatment the Tribunal gives this aspect of this consideration only limited weight.

42. The Tribunal does not find that cancellation of the applicant’s visa would cause Ms Diep financial hardship. The Tribunal was provided with summary accounts for the applicant’s gardening business for the period July 2022 to October 2022 (four months) which show the business generated modest turnover and profit at that time. Based on the information provided to the Tribunal the main source of financial support for Ms Diep are the payments she receives from Centrelink.

43. The Tribunal finds that cancellation of the applicant’s visa would cause Mr Dinh, Ms Le and their three children emotional hardship, although the duration of such hardship for the children is likely not to be significant given their relatively young ages, particularly for the youngest two children.

44. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.

    The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.

45. The Tribunal was provided with a copy of the sentencing remarks of his Honour Judge Cahill of the County Court of Victoria handed down on 23 November 2022. What those sentencing remarks reveal is that:

    ·The applicant and Ms Diep were charged and each pleaded guilty to one charge of cultivating cannabis;

    ·On 10 February 2021 Victoria police attended a suburban house at Sunshine West where Ms Diep and the applicant were inside the house in which 25 mature cannabis plants and 37 cannabis seedlings, weighing over 50 kilograms, were found  growing;

    ·Ms Diep is the survivor of a previous abusive relationship that ended in 2016 where an ex-husband incurred AUD36,000 of debt on Ms Diep’s credit card;

    ·Ms Diep’s mother from Vietnam died whilst visiting Australia in 2019 and Ms Diep had to arrange her funeral and repatriation to Vietnam without financial help;

    ·The applicant and Ms Diep married in Vietnam and arrived in Australia in 2020;

    ·The applicant and Ms Diep pleaded guilty at an early stage, have no prior convictions and had not reoffended at the time of sentencing;

    ·The applicant admitted to being at the property daily for 10 days or so;

    ·The applicant was found to be “simply following [Ms Diep] in [her] illegal venture”;

    ·His Honour found Ms Diep had greater moral culpability for the offending than the applicant;

    ·The applicant and Ms Diep were both assessed as “a low risk of reoffending”;

    ·Given the number of plants was less than a commercial quantity and the applicant and Ms Diep were charged with being at the property for one day, His Honour found the seriousness of their offending to be in the “low-mid range”;

    ·His Honour assessed the applicant’s and Ms Diep’s prospects of rehabilitation “to be very good”;

    ·His Honour decided that a sentence of imprisonment, which was requested by the prosecution, would work against the “rehabilitative progress” of the applicant and Ms Diep;

    ·His Honour convicted both the applicant and Ms Diep and ordered the applicant serve a Community Corrections Order of 18 months, the conditions of which included that the applicant perform 150 hours of unpaid community work.

46. The evidence before the Tribunal, which it accepts, is that the applicant promptly completed his obligation to perform 150 hours of unpaid community work and otherwise has complied with his Community Corrections Order which was officially discharged on 16 October 2023 when it was due to expire on 23 May 2024. The Tribunal accepts this as an important indication of the applicant’s respect for Australian law in the context of his single criminal offence being his only known criminal offence in Australia or overseas. Put another way, the applicant’s offending appears to have been a one-off and he quickly completed the criminal sentence imposed upon him.

47. The applicant’s evidence is that he was only newly arrived in Australia, was dependent on his wife and simply followed his wife in her course of action, did not know the plants were marijuana plants and did not know that what they were doing was illegal.

1. This issue was addressed by His Honour Judge Cahill in his sentencing remarks as follows:

   Although you told police you did not know about the cannabis plants, by your guilty plea, you admit you were knowingly involved in their cultivation.

2. The applicant’s advocate submitted that the guilty plea arose because at that time the applicant understood what he had done with his wife was illegal, but at the time of his offending he did not have that state of knowledge and therefore the circumstances in which the ground for cancellation of his visa arose were beyond the applicant’s control.

3. The applicant’s advocate submitted that in the circumstances of the applicant being newly arrived to Australia, married to Ms Diep who is significantly older than the applicant and well settled in Australia, the applicant being younger and not having the maturity to question his wife and looking up to and respecting his wife all contributed to the applicant offending as he did without knowing what he was doing or its potential implications, such that the circumstances in which the ground for cancellation of his visa arose can properly be said to have been beyond the applicant’s control.

4. In support of these submissions the applicant’s advocate provided the Tribunal with Mr Cummins’ report. In that report Mr Cummins observed that the applicant presented as psychosocially immature, although Mr Cummins did not report that any psychometric tests or other clinical tools were used to test or support this observation.

5. Mr Cummins also reported:

   … when I observed Mr Nguyen and Ms Diep interacting the waiting room, they appeared to interact as equals. In other words, it was not apparent that Mr Nguyen currently felt inferior to his wife. Simultaneously, it was apparent that his wife did not speak down to him or speak to him in a condescending or domineering or assertive manner. When I saw them interacting in the waiting room Ms Diep was in tears and, as stated elsewhere in this report, she was frequently tears when I interviewed her.

6. Mr Cummins interviewed the applicant and Ms Diep on 6 October 2023 almost two years and eight months after their criminal offending. The Tribunal accepts that with this passage of time the nature of the relationship – at least in the context of the applicant’s dependency on Ms Diep – could well have changed.

7. Mr Cummins reports that Ms Diep feels guilty in involving the applicant in the criminal offending as follows:

   I then asked Ms Diep to explain how it was that a husband Mr Nguyen became involved in this offending. She stated – “Well I had to go to the property and at that time my husband had only been in the country for a short time and I didn’t want to leave him on his own. I didn’t really explain to him what I was doing, but I suppose I sort of thought that he knew what I was doing. I was there to keep an eye on the crop and to do some cleaning at the place. I never got paid anything, but I’ve been told I get paid after the crop is harvested – but of course that never occurred because we were arrested and the people who I was working for disappeared. I wasn’t paying the rent at the place. I feel bad about what I did and feel very bad about getting my husband involved in all of this.”

8. Ms Diep’s evidence is that she was in significant financial distress at the time and was offered a cash payment of AUD10,000 to look after the hydroponic marijuana crop.

9. The Tribunal does not accept the submissions of the applicant’s advocate that the circumstances in which the ground for cancellation of the visa arose were beyond the applicant’s control. The Tribunal found the applicant’s evidence in this regard unconvincing, noting that there is an element of covertness to ‘crop sitting’ as the activity the applicant engaged in is known and the applicant admitted to attending the ‘crop’ daily over 10 days.

10. The distinction drawn by the applicant’s advocate that he knew he was guilty of an offence at the time he pleaded guilty but did not know he was guilty of an offence at the time he committed the offence is, in the Tribunal’s view, an artificial one. The applicant pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis. By entering this plea, the applicant acknowledged, in the words of His Honour Judge Cahill, that he was knowingly involved in the cultivation of that marijuana. The applicant received a considerable benefit by entering a guilty plea at an early stage of the criminal proceedings. His Honour Judge Cahill indicated, as he is required to by sentencing law in Victoria, that but for the applicant’s guilty plea he would have imposed on him a sentence of 12 months imprisonment with a non-parole period of eight months.

11. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa, but in the circumstances of this review the Tribunal gives this consideration only considerable weight, whereas in the absence of the circumstances noted below this consideration may have attracted significant or great weight.

12. The specific circumstances of this review affecting the weight the Tribunal has given this consideration include:

    ·His Honour Judge Cahill found that Ms Diep had greater moral culpability for the offending than the applicant, that the applicant was simply following Ms Diep in her illegal venture and assessed the seriousness of their offending as being in the low to mid-range

    ·His Honour Judge Cahill found the applicant’s prospects of rehabilitation were “very good”;

    ·Mr Cummins formed the view that the applicant only became involved in the criminal offending because of the negative influence of Ms Diep at the time, does not expect him to reoffend, believes that he has learned his lesson in relation to having committed a criminal offence in Australia and is genuinely remorseful for that behaviour; and

    ·Mr Cummins’ assessment is supported by the applicant having quickly completed the 150 hours of unpaid community work he was required to complete leading to the early discharge of the applicant’s Community Corrections Order.

    The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)

13. The evidence before the Tribunal is that the applicant has been co-operative with the Department and fully participated in the cancellation process. The delegate of the Minister who cancelled the applicant’s visa raised concern that on an incoming passenger card on his return to Australia on 21 March 2023 the applicant ticked “no” to the question “do you have any criminal convictions?”.

14. The delegate found this incorrect answer was not of “compelling concern” to the Department but still found this consideration weighed in favour of the cancellation of the applicant’s visa.

15. The applicant told the Tribunal that he made an innocent mistake and thought because a Community Correction Order was imposed on him, and he was not imprisoned, he had not been convicted of a criminal offence and that in future he would tick “yes” to that question. The delegate in the primary decision noted that the applicant had provided his national police certificate only months earlier in February 2023 and the applicant claimed he knew that all computer systems of the departments in Australia are linked together and there was no point in him trying to hide his criminal law information from the Department.

16. The applicant asserts a naivety in relation to his criminal law sentence, despite having been present when sentenced by His Honour Judge Cahill who clearly explained in his sentencing remarks that the applicant was convicted of the criminal offence he pleaded guilty to and released on a Community Correction Order.

17. By contrast the applicant then asserts an apparently sophisticated understanding of data collection and sharing by Government in Australia as a means of demonstrating his earlier non-disclosure was an innocent mistake.

18. Irrespective of whether the applicant intentionally or innocently completed his May 2023 incoming passenger card incorrectly, he failed to provide the correct information in breach of his obligation to do so, and it is this obligation that underpins the efficiency and integrity of Australia’s migration program. For these reasons, the Tribunal finds that this aspect of this consideration weighs in support of the cancellation of the applicant’s visa.

19. The Tribunal finds that overall this consideration weighs against the cancellation of the applicant’s visa but in the applicant’s circumstances the Tribunal gives this consideration modest weight only.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act

20. The evidence before the Tribunal is that there is no-one who is dependent upon the applicant’s visa for their (secondary) visa.

21. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention

22. The usual mandatory legal consequences of the cancellation of a visa in the applicant’s circumstances are that they will become an unlawful non-citizen and may be liable to be detained under s 189 of the Act and eventually deported, if they do not depart voluntarily, under s 198 of the Act. Such visa holder is also usually barred from applying for most temporary visas while they remain in Australia under s 48 of the Act and would also be prohibited from being granted particular temporary visas for three years as a result of Public Interest Criterion 4013.

23. The Tribunal accepts that these mandatory legal consequences, whilst noting a decision to cancel a visa is not a decision to deport the former visa holder, would have an adverse impact on the applicant.

24. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation

25. The applicant does not claim to have any children of his own or to be unable to return to Vietnam where his family continues to reside.

26. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

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

27. The applicant’s Partner visa is a provisional visa.

28. The Tribunal finds that this consideration is neutral and weighs neither against nor in support of the cancellation of the applicant’s visa.

    Any other relevant matter

29. The Tribunal notes that the Department file contains character references in the form of statutory declarations declared by Mr Justin Vu and Mr Michael Vu who are family friends of the applicant. Mr Justin Vu and Mr Michael Vu attest to the applicant’s good character and genuine remorse for his criminal offending. Copies of these statutory declarations were also provided to the Tribunal.

30. The Tribunal has taken these character references into consideration in these reasons for decision.

    Conclusion

31. The Tribunal considers, when balancing all of the discretionary considerations, that those considerations that weigh against the cancellation of the applicant’s visa outweigh those considerations that support the cancellation of the applicant’s visa.

32. Considering the applicant’s circumstances as a whole, the Tribunal concludes that the applicant’s Subclass 309 (Spouse (Provisional)) visa should not be cancelled.

    DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Michael Ison
    Senior Member