Nguyen (Migration)

[2018] AATA 5270

Nguyen (Migration) [2018] AATA 5270 (23 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van Tu Nguyen

CASE NUMBER:  1712816

HOME AFFAIRS REFERENCE(S):           BCC2017/1637232

MEMBER:Mr S Norman

DATE:23 November 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 23 November 2018 at 9:55am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – convicted of an offence against a law of a State – consideration of discretion – poor academic progress – not enrolled in a registered course – degree of hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The Department Delegates decision was lodged with the Tribunal.

2. The delegate cancelled the visa under s.116(1)(g) of the Act, on the basis the applicant was convicted of being an ‘accessory after the fact of a serious indictable offence’. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 21 November 2018 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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) of the Act. 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?

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

   Reg.2.43(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:

   …..

   (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))…

7. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 5 August 2013. He then arrived in Australia on 20 August 2013. By Notice of Intention to Consider Cancellation (NOICC) dated 9 May 2017, the applicant was advised that information before the Department indicated he had been convicted on 28 October 2016 at the Burwood Local Court for the following offence:

   ·Possession of an indictable amount of a prohibited drug (Cannabis)

8. The applicant was also advised that under s.116(1)(g) of the Act, this may be a prescribed ground for cancelling the visa. After being granted an extension, on 31 May 2017 and on behalf of the applicant, his migration agent responded to the NOICC. However, there was no dispute that grounds for cancellation of the Student visa existed.

9. When discussed at hearing, the applicant also did not dispute there were grounds to cancel the Student visa. He said he was convicted as (words to the effect) an “Accessory after the fact in a serious indictable offence”. He also said that as a result of his abovementioned conviction, he served a term of six months imprisonment in Long Bay Gaol.

10. For these reasons, the Tribunal is satisfied the ground for cancellation in s. 116(1)(g) of the Act, 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

11. 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’.

12. Regarding the purpose of the applicant’s travel to and stay in Australia, on 20 August 2013 the applicant entered Australia on a Student visa. He had claimed he intended to travel to and stay in Australia for the purposes of studying a Bachelor of Business. However, the applicant had been in Australia for almost four years at the time of the delegate’s decision and had only managed to complete a six-month Certificate III ESL (Access) course. When discussed at hearing, the applicant conceded this was correct. Based on all the evidence before it, the Tribunal is not satisfied the applicant’s intention is to now remain in Australia to study.

13. Next, regarding the extent of compliance with his visa conditions, as noted above, at the time of the delegate’s decision and since arriving in Australia on 20 August 2013, the applicant had only managed to complete a six-month Certificate III ESL (Access) course. The delegate also noted that at the time of their decision the applicant had not been enrolled in a registered course of study since his COE for a Diploma of Business was cancelled on 10 September 2014 for non-commencement of studies. As did the delegate, the Tribunal notes this is also a breach of the conditions attached to his visa (condition 8202(2)(a)). When discussed at hearing, the applicant did not provide any evidence of further studies. The Tribunal believes this breach is significant.

14. The applicant had also said this was the first time he had become “involved in such [a criminal] offence which was beyond his knowledge about its consequences”; and that if he knew about the illegal offence he would never have gotten involved; and that he no longer wished to engage in criminal activities. At hearing, when the Tribunal put to the applicant it may not appear plausible he did not know the activities for which he was convicted in Australia were criminal, he said he had no comment. The Tribunal does not accept the applicant was unaware the relevant activities were criminal.

15. Next, and regarding the degree of hardship that may be caused to the applicant or his family if his visa is cancelled (including financial, psychological, emotional or other hardship), the applicant said his father (a farmer in central Vietnam) had suffered due to floods and storms. He was then not able to financially assist the applicant to study in Australia. However, the father’s financial situation had now improved. The applicant also said that his mother had “developed … multiple medical conditions; including high cholesterol, high blood pressure, heart condition and severe depression”. He said if forced to return to Vietnam due to his visa being cancelled, this would cause more depression. At hearing, the Tribunal then said that if his father’s financial circumstances had improved, then the Tribunal assumed he was able to pay for any ongoing medical assistance needed by his wife (the applicant’s mother). The applicant conceded the father could afford medical treatment.

16. The applicant had also said that if his visa is cancelled, this may cause more depression for his mother. When discussed at hearing, the Tribunal put to him it may be the applicant’s presence in Vietnam might even assist the mental state of his mother. The applicant then referred to his Australian citizen wife (discussed below). That being said, the Tribunal is satisfied the applicant’s presence in Vietnam, may assist to mitigate any ongoing mental issues suffered by his mother

17. The applicant also said he had not told his parents about his “bad criminal record because he wants to make a better future for himself”. At hearing, the applicant told the Tribunal he had still not told his parents or his two siblings (brothers) about his criminal conviction in Australia (one brother works in Singapore and the other in Korea); and that he did not wish to cause his parents harm in Vietnam (though the Tribunal understands the harm referred to by the applicant has been discussed herein). He said he last contacted his family ‘last week’ and their situation had ‘stabilised’. The Tribunal accepts the applicant may subsequently wish to tell his family about his conviction in Australia. However, this would not prevent the Tribunal from exercising the discretion to cancel the visa in this case.

18. The applicant also said he wished to continue his studies in Australia and could not imagine returning to Vietnam. He said he “tried hard to study English this time with the hope that if the Department could allow him to continue with his visa, he would be able to apply for further extension to complete his English and Bachelor of Business”. However, and as stated at hearing (words to the effect), the apparent lack of academic progress or material attempts to re-engage in studies, has not satisfied the Tribunal the applicant wishes to study in Australia in order to secure better paid work in Vietnam.

19. The applicant also said he now considers Australia his home. However, and as noted at hearing, the now 25 year old applicant had only resided here for around five years (six months at Long Bay Gaol), and notwithstanding his claims to have ‘grown up’ in Australia, and after having taken into account all other findings, this has not satisfied the Tribunal it should not exercise the discretion to cancel his visa.

20. The applicant also said he currently had a partner in Australia and whom he intended to marry;[1] and he did not wish to have “no chance to see and live with his [now] wife again”.[2] When discussed at hearing, the applicant said his now 36 year old Australian citizen wife was born in Saigon and travelled to Australia ‘after 2011’ and had subsequently become an Australian citizen. His wife had therefore travelled to Australia when she was 29 years old, and she still had family (including her parents) in Saigon. When then asked, the applicant said that if his visa was cancelled, and though they would prefer to remain in Australia, his wife would return to Vietnam to live with him. The Tribunal accepts this is correct, and that therefore, cancelling the applicant’s visa would not cause him to be separated from his (now) wife.

    [1] Department – folio 60.

    [2] Department – folio 59.

21. Next, the Tribunal notes that if the applicant’s visa is cancelled he would be subject to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before the Tribunal I am not satisfied he would be subject to indefinite detention. I also accept the applicant would be able to temporarily retain his Bridging visa, in order to remain in the community to finalise his affairs prior to departing Australia.

22. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he could not be granted a temporary visa for three years from the date of cancellation.

23. Next, and regarding the circumstances in which the ground for cancellation arose, in the response to the NOICC the applicant said he “struggled a lot through life”; he “still only had a few words of English and he needed to be close to a Vietnamese speaking area”; he had “struggled to pay for his education along with the cost of living”; he attempted to find work in Australia but was unable to find a “stable income”; he said he was told that if he could not speak English he would not obtain work; he said it was “hard for him to study English at that time and he really needed a job urgently”; he said his bills started to “accumulate and outstanding rental together with his parents financial hardship”, and that his debt burden grew (the family farm was flooded and ‘destroyed’ in 2014); his parents could then no longer support his education; he then borrowed money from a man (at hearing, he did not dispute that he did not borrow money from a reputable lender).  When discussed at hearing, the applicant said he made a mistake and a bad choice. However, at hearing he also told the Tribunal that for approximately the last 12 months he had in fact obtained full time work for NBN Australia.

24. That said, the Tribunal proposes to accept the applicant found himself in financial difficulties after his family’s financial circumstances deteriorated (in 2014) and he was at that time unable to find a ‘stable income’ in Australia. As then stated at hearing (words to the effect), he still had committed a criminal offence in Australia and had not apparently attempted to take reasonable alternate steps to remedy his situation (ie including by deferring his studies and returning to Vietnam until his financial circumstances improved). The Tribunal is not satisfied the reasons for the applicant engaging in the offence, should prevent it from exercising the discretion to cancel the visa.

25. The Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

26. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

27. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mr S Norman
    Member