Nguyen (Migration)

[2018] AATA 5512

Nguyen (Migration) [2018] AATA 5512 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr The Thang Nguyen

CASE NUMBER:  1818973

HOME AFFAIRS REFERENCE(S):           BCC2018/2048932

MEMBER:Kira Raif

DATE:31 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 31 October 2018 at 4:39pm

CATCHWORDS

MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – applicant convicted of offences in Australia – applicant withdrew from Higher Education course – low likelihood of reoffending – spouse’s separation from family – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 116, 140, 501
Migration Regulations 1994, Schedule 4, Public Interest Criteria 4001; r 2.43; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 22 June 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).

2. The applicant is a national of Vietnam, born in October 1990. He was granted the temporary Partner visa on 16 June 2017. On 4 June 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) of his visa under s.116(1)(g) of the Act and r.2.43(1)(oa) of the Migration Regulations 1994 (the Regulations) because the applicant had been convicted of offences in Australia. The applicant provided his response to the NOICC and his visa was cancelled on 22 June 2018. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 31 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse and her grandfather. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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?

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). 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.

6. 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 Regulations. In the present case, the ground in r.2.43(1)(oa) is relevant. It provides the following:

   (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))

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was granted, and was holding at the relevant time, a Class UK Partner visa. The Tribunal finds that it is a temporary visa and that the applicant was a holder of a temporary visa other than a Bridging visa or a Special Category visa.

8. The primary decision record indicates that the applicant has been convicted of the following offences:

   ·       03/08/17       cultivate prohibited plant more than, or equivalent to commercial quantity

   Downing Centre District Court, 18 May 2018
   Sentence: a term of imprisonment of 23 months to be served by way of an intensive corrections order commencing on 18 May 2018

   ·     03/08/17       possession of prohibited drug

   Downing Centre District Court, 18 May 2018
   Sentence: a term of imprisonment of 23 months to be served by way of an intensive corrections order commencing on 18 May 2018

   ·     03/08/17       use / consume / waste electricity without authority

   Downing Centre District Court, 18 May 2018
   Sentence: a term of imprisonment of 23 months to be served by way of an intensive corrections order commencing on 18 May 2018

9. The applicant states in his written submission to the delegate, a copy of which he presented to the Tribunal, that the offences of ‘possession of prohibited drug’ and ‘use / consume / waste electricity without authority’ are considered as additional charges and the sentence relates to the substantive offence of ‘cultivating prohibited drug’ and there was no separate sentence for each matter. The applicant states that he has only one conviction for the offence of ‘cultivating prohibited plant (commercial quantity)’. The Tribunal accepts that evidence, although the Tribunal is mindful that there need not be multiple convictions for s.116(1)(g) to come into operation. The applicant concedes in his written response to the NOICC that there are grounds for cancelling his visa.

10. It is not in dispute that the applicant had been convicted of an offence of ‘cultivating prohibited plant’. The applicant concedes in his written submissions to the delegate and the Tribunal that the ground for cancellation exists. Having regard to that information, the Tribunal is satisfied that the applicant has been convicted of an offence, or offences, against a law of the Commonwealth, a State or Territory. The applicant was the holder of a temporary visa at that time. The Tribunal finds that there are grounds for cancelling his visa under s.116(1)(g) of the Act and r.2.43(1)(oa) of the Regulations.

11. The Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

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

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

13. The applicant states that he travelled to Australia to further his education. After arriving in Australia he enrolled in an MBA but found the course difficult and transferred to an easier course. He completed a Diploma of Leadership and Management and enrolled in another program. The applicant states that he met his wife in April 2015 and they married in February 2016. He applied for, and was granted, the Partner visa. He stopped studying about eight months after making the application for the Partner visa.

14. The purpose of a Partner visa is to enable the visa holder to remain in Australia with their partner

15. In his written response to the NOICC the applicant states that the primary purpose of his stay in Australia is to enable him and his partner to live together. They commenced a relationship in 2015 and the applicant stopped studying and started working after being granted the temporary visa. The applicant enclosed a copy of his marriage certificate. The Tribunal accepts that the applicant is fulfilling the purpose of the Partner visa and of his stay in Australia by maintaining a relationship with his partner.

    The extent of compliance with visa conditions

16. The applicant states in his evidence to the Tribunal that he had always complied with visa conditions. He states that he initially travelled to Australia on a Student visa, transferred to an easier course and withdrew from his studies once he was granted the Partner visa in order to work and support his family. There is no evidence that the applicant had not complied with conditions associated with his Partner visa. 

17. The applicant’s evidence indicates that he entered Australia on the basis of being a tertiary student and being enrolled in a Masters course. He was assessed as meeting the requirements for the grant of the visa in Subclass 573 on the basis of his existing qualifications. At the time of the applicant’s entry to Australia, condition 8516 would have applied to his Student visa. That condition required the visa holder to continue to be a person who would satisfy the primary criteria for the grant of the visa. That is, the applicant must have continued to be enrolled in a course at a particular level for which his visa was granted. The applicant’s evidence is that he transferred from an MBA to a Diploma course. The applicant told the Tribunal that he intended to pursue a degree after finishing the Diploma but did not enrol in a degree. The applicant confirmed that he did not apply for a new Student visa that was more appropriate to his new study.

18. The applicant told the Tribunal that he approached an agent and told him the course was too difficult and the agent arranged the course transfer. The applicant told the Tribunal that he did not know the law and did not know he had to apply for another visa. The Tribunal finds that he applicant did not comply with condition 8516 when he was holding the Student visa.

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

19. The applicant submits that the cancellation of his visa would force him and his partner to depart Australia. They are currently residing with his partner’s family and a decision to cancel would impact on their future. The applicant admits that he made a mistake by getting involved with the wrong people and has expressed his remorse. The applicant notes that there is very low likelihood of him reoffending, as found by the court.

20. In oral evidence the applicant told the Tribunal that he and his wife have a future together. It would be hard for them to go back to Vietnam. His wife is completing her bachelor degree in November 2018. If he returns to Vietnam, his wife would have to decide between him and her family. The Tribunal accepts that evidence, although the Tribunal is not convinced that the couple’s future together can only be made in Australia and not in any other country. If this relationship is genuine, the relationship can continue no matter which country the couple reside in. The Tribunal accepts that Ms Nguyen’s family reside in Australia and that she would be separated from her family if she was to leave Australia. The Tribunal is mindful that the applicant made the decision to leave his family in Vietnam when he travelled to, and remained in Australia. The applicant told the Tribunal that he is older than his wife and also that he lived away from his family when he was in Vietnam and he has more life experience. The Tribunal accepts that it would be difficult for Ms Nguyen to leave her family in Australia but the Tribunal is mindful that she is an adult, she has nearly completed tertiary education and has been married to the applicant for a number of years. It may be that the applicant and his wife will decide to live independently at some point in the future.

21. The applicant states that he lives with his parents in law and his wife’s family. He is like a family member and in accordance with the Vietnamese culture, they are very close. If he has to leave Australia, they would lose a son. The applicant’s partner Ms Nguyen and her grandfather also spoke about their close relationship and the Tribunal accepts that evidence.

22. The applicant told the Tribunal that his wife wants to complete a Masters course to get a better job and if she has to leave Australia and if it takes time for her to return to Australia, this would delay her plans. Ms Nguyen told the Tribunal that she would not be able to obtain registration as a nurse if she lives overseas for a long time because she could not maintain the ongoing training and professional development required. The Tribunal accepts that overseas residence may delay Ms Nguyen’s registration in Australia and the couple’s plans for the future although the Tribunal is also mindful that the couple’s plans need not be abandoned but simply delayed.

23. The applicant told the Tribunal that he has learned English in Australia for a number of years but he would lose his English if he had to live in Vietnam. The applicant’s evidence to the Tribunal is that his wife would accompany him and that they communicate in English and in Vietnamese. The Tribunal is of the view that the applicant can maintain his English skills by communicating with his wife, even if he may have limited other opportunities to communicate in English. The Tribunal is also of the view that if the applicant reapplies for a Partner visa offshore and if he is granted that visa (and the Tribunal acknowledges that there can be no certainty of visa grant), the applicant’s stay in Vietnam may not be a lengthy one. The Tribunal is not satisfied that the applicant will lose his English skills during his residence in Vietnam.

24. The applicant states that his parents are elderly. Their friends and the community know that he married in Australia and if he returned to Vietnam, people will think that he has done something wrong and has been ‘kicked out of the country’. The Tribunal is mindful that if the applicant’s visa is cancelled, it is because he has done something wrong and in this case has been convicted of multiple offences. The Tribunal is also mindful that the applicant holds a temporary visa and until he is granted a permanent one, the applicant cannot expect that he would not be returned to his home country.

25. The applicant told the Tribunal that he had several jobs since he was released from jail. At the moment he works for a concrete pre-cast company. He supports his wife who is still studying and wants to continue with the Masters course next year and he wants to continue to support his wife. The Tribunal is prepared to accept that the applicant provides financial support to his wife.

26. The Tribunal accepts that certain hardship would be caused as a result of the visa being cancelled although the Tribunal has formed the view that the applicant’s claims about the extent of the hardship are somewhat exaggerated. The Tribunal is also mindful that the visa in question is a temporary visa. The applicant has not been granted a permanent visa. He has no right to remain in Australia permanently until such a visa is granted and whatever plans the applicant and his wife made for their future life in Australia, there is always the possibility that such plans cannot come to fruition because of the applicant would not be granted the permanent visa.

    Circumstances in which ground of cancellation arose

27. The ground of cancellation arises because the applicant had been convicted of offences relating to the cultivation of drugs. In his response to the NOICC the applicant refers to the sentencing remarks and states that although the sentencing judge planned to impose a custodial sentence, he was given the benefit of an Intensive Corrections Order. The applicant notes that the sentencing judge referred to him as being a person of generally good character with good prospects of rehabilitation. The applicant states that his role was that of a ‘plant sitter’ and he did not play any part in the set up of the premises. The judge found that he engaged in this conduct for financial gain but he did not actually receive any payment. The applicant states in his submission to the Tribunal that soon after his marriage, the family began to struggle financially and he felt guilty for not being able to help his parents to support his sister’s study. He decided to work full-time to support his wife during her studies. The applicant states that he took the first opportunity to plead guilty, that he expressed genuine remorse for his actions and was assessed at low risk of re-offending. The applicant expressed remorse in his submissions to the Tribunal. He states he has never committed any offences previously. The Tribunal accepts that evidence. The applicant notes that the maximum penalty of the offence of which he was convicted is 3500 penalty units or imprisonment for 15 years or both, while he was sentenced to imprisonment for 23 months to be served by Intensive Corrections Order and that shows that his matter is at the lower end of seriousness for such an offence. The Tribunal accepts that, although the Tribunal notes that the offence itself is a very serious one, as is evidenced by the substantial sentence imposed, even if it was at the lower level for that particular type of offence. The applicant provided to the Tribunal the transcript of the sentencing remarks. The applicant has been identified as a ‘crop-sitter’ and it was noted that he was not yet paid for his services. The judge commented that the objective seriousness of the offence is ‘below the mid-range level but not at the bottom of the range’.  The applicant claimed that he took up the role to provide financial assistance to his parents. It was suggested that he was assessed as having a low risk of re-offending and that his prospects of rehabilitation were excellent. The judge referred to the applicant’s genuine remorse. The applicant refers to his involvement in community service, stating that it is his voluntary decision to engage in community service. The applicant told the Tribunal that he is sorry about getting involved. He wants to prove himself to the family and that he is a good person.

    Past and present behaviour of the visa holder towards the Department

28. Nothing adverse is known about the applicant’s past and present conduct towards the Department.

    Whether there would be consequential cancellations under s.140

29. There are no persons in Australia whose visa would, or may, be cancelled under s.140 of the Act.

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

30. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. There is no suggestion that the applicant will be indefinitely detained. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention. The applicant may be subject to an exclusion period in relation to future visa applications. 

31. The Tribunal acknowledges that the applicant’s application for the permanent Subclass 801 visa may be refused if he is no longer the holder of a temporary visa. The Tribunal is also mindful that the applicant’s conviction may give rise to considerations of the applicant’s character under public interest criteria 4001 and s.501 of the Act although that is not a consequence of the cancellation.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. There is no evidence, and the applicant did not claim, that Australia’s protection obligations would be engaged. The applicant’s wife, Ms Nguyen told the Tribunal that the applicant may be jailed in Vietnam because of his Australian convictions. The applicant then told the Tribunal that he ‘remembered’ that may happen. No probative evidence has been provided to support the claim that the applicant would be jailed or otherwise punished in Vietnam as a result of being convicted of offences in Australia.

2. Nevertheless, if the applicant believes that he may face any form of punishment as a result of his conviction, the Tribunal notes that the applicant is eligible to make an application for a protection visa. Nothing prevents him from doing so and the applicant’s claims would be assessed as part of that process.

3. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

4. The applicant told the Tribunal that there are no children who would be affected by the cancellation. The Tribunal finds that Australia’s international obligations would not be breached as a result of the cancellation.

   Any other relevant matters

5. The applicant outlined in his submission to the Tribunal changes he made since his sentencing. He states that he ceased contact with people who offered him work that led to the offending. He has participated in community service work as part of the requirement of the Intensive Corrections Order and has been assessed by a psychologist as having a low risk of reoffending. The applicant repeated these claims in oral evidence to the Tribunal. The applicant states that he has always been a motivated and hard-working person and his offending was found to be out of character by the sentencing judge.

6. In his written submission to the Tribunal the applicant outlined the impact the cancellation of his visa would have on his wife and his family. The applicant provided to the Tribunal a psychologist’s report prepared by Mr Green. Mr Green expressed an opinion that the applicant’s spouse would ‘suffer considerably’ if the applicant was to return to Vietnam and that she would be profoundly affected. The Tribunal is prepared to accept that evidence.

7. The applicant provided evidence relating to his wife’s employment and income, as well as evidence of her ongoing studies. The applicant submits that his wife is financially dependent on him. The Tribunal is prepared to accept that evidence. However, the applicant’s evidence to the Tribunal is that his parents had been supporting him financially in the past when he came to Australia to study and also initially before he found a job. The applicant told the Tribunal that his parents retired and do not have much income. No evidence of that has been provided and the Tribunal is mindful that the applicant sought the Student visa after his parents retired in 2007. The applicant told the Tribunal that he does not want to rely on his parents and while that may be the case, that does not mean that financial support from parents is not available. The applicant also told the Tribunal that his wife had a casual job and so does her brother. There is no evidence that the applicant’s partner cannot receive financial support from family members. The applicant admits that family members can provide her with financial support on a short term basis but not long-term but, again, no evidence has been presented to support that claim. The Tribunal is not satisfied that the applicant’s loss of employment in Australia would cause financial hardship to his wife.

8. The applicant refers to his ties to Australia and also his wife’s ties to Australia, noting that the decision to cancel the visa will not only affect him but also his wife. The Tribunal accepts that evidence.

9. The applicant apologised for his conduct and told the Tribunal that he made a mistake. He said he has now improved and changed himself and wants to make a contribution to Australia. The Tribunal is mindful that the applicant is eligible to apply for other visas, including a Partner visa. There is no exclusion period in relation to a Partner visa application so there is at least a possibility that the applicant would be able to return to Australia within a reasonable period.

10. Ms Nguyen told the Tribunal that it would be hard for her to live in Vietnam because there is no government support, for example, for medical services. She said medical services are expensive but she could not indicate any basis for that statement. The Tribunal is not satisfied that the applicant or Ms Nguyen would be denied access to medical services in Vietnam.

11. Ms Nguyen told the Tribunal that she would not be able to continue with her studies if she had to go to Vietnam and it would be hard for her to find a job and communicate with others because of her limited Vietnamese. She would not be able to get a job as a nurse. The Tribunal accepts that Ms Nguyen is unlikely to be able to work as a nurse in Vietnam and also that she may have limited job opportunities. As noted above, the Tribunal is not satisfied that she would be unable to obtain financial support from other members of her family or the applicant’s family.

12. Ms Nguyen told the Tribunal that she has a close relationship with her family in Australia who have supported her throughout her life and she would be heartbroken if she had to leave her family in Australia. This is consistent with the information in Mr Green’s report and the Tribunal accepts that if Ms Nguyen were to live in Vietnam, she would not have the opportunities for as much physical contact with her family as she has in Australia. There is no reason she could not maintain connection with her family through electronic means.

13. Ms Nguyen stated that the government in Vietnam is not supportive and if her husband is to do anything against the government, he would be in trouble. However, both Ms Nguyen and the applicant concede that the applicant has no intention of doing anything against the government and there is no basis for the applicant or his partner to assume that he would do anything that would cause problems with the government.

14. Ms Nguyen and her grandfather spoke about the applicant being a reformed person and doing community service and being of good character. The Tribunal accepts that this is the belief of Ms Nguyen and her family.

15. The applicant told the Tribunal that his wife was affected by the breakup of her parents’ relationship and it made it hard for her to trust men and it took time to win her trust. The applicant said that his wife would be stressed if his visa is cancelled and their future would be ruined. The Tribunal is mindful that the applicant’s evidence is that his wife would accompany him to Vietnam. While the Tribunal accepts that his wife may have to quit her job and postpone her study and that may cause a certain degree of hardship and stress to his wife, the Tribunal does not accept that the couple’s future would be ‘ruined’.

16. The applicant refers to their plans for the future, including attaining higher education and buying a house and having a child. The Tribunal accepts that is the case but the Tribunal does not consider such plans can only be fulfilled in Australia. 

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that there are grounds for cancelling the visa because the applicant has been convicted of offences.

18. The Tribunal acknowledges their evidence that the couple would both return to Vietnam if the applicant cannot remain in Australia and that would affect their employment and study opportunities, as well as Ms Nguyen’s registration as a nurse. The Tribunal accepts that they made plans for their future and such plans would be delayed if the couple were to live in Vietnam. The Tribunal accepts that Ms Nguyen has a close relationship with her family in Australia and has never lived away from them and that she may be affected by her separation from her family. The Tribunal has given due regard to the psychological report and accepts the evidence in that report. The Tribunal accepts that if the visa is cancelled, the applicant may be unable to maintain his job and that will affect the family financially. The Tribunal accepts that considerable hardship may be caused to the applicant and his partner if the visa is cancelled.

19. There are no other known instances of non-compliance, although the applicant appears to have breached a condition of his Student visa, and there are no other known breaches of the law. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation.

20. The Tribunal acknowledges that there are reasons for not cancelling the visa.

21. Against these considerations, the Tribunal notes that the applicant has been convicted of serious offences that are related to drug cultivation. The Tribunal acknowledges the applicant’s expression of remorse and his assertion that he has changed and wants to improve himself and prove himself to his family and the community. The Tribunal also acknowledges the circumstances leading to the conduct, as set out in the sentencing remarks. Nevertheless, the Tribunal considers the offending to be serious and the Tribunal is mindful that the applicant engaged in offensive behaviour with the sole purpose of financial gain. He did so knowing that the conduct was contrary to Australian laws.

22. The Tribunal acknowledges that if the applicant were to return to Vietnam with his partner, hardship would be caused, however, the Tribunal also notes that the visa in question is a temporary visa and that until he is granted a permanent visa, the applicant cannot assume he would be permitted to remain in Australia permanently. Nothing prevents the applicant from making an application for another Partner visa in the future and in the Tribunal’s view, the degree of hardship may be minimised if the applicant is granted another Partner visa.

23. The Tribunal places greater weight on the circumstances in which the ground for cancellation arises. In the Tribunal’s view, the nature and the seriousness of the applicant’s conduct outweigh other considerations. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

24. The Tribunal affirms the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

    Kira Raif
    Senior Member