Nguyen (Migration)

[2022] AATA 5266

Nguyen (Migration) [2022] AATA 5266 (30 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Huy Quan Nguyen

CASE NUMBER:  2203227

HOME AFFAIRS REFERENCE(S):          BCC2020/2548873

MEMBER:David McCulloch

DATE:30 August 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 30 August 2022 at 7:25am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – convicted of an offence – knowingly take part in cultivate cannabis – consideration of discretion – provided doctored evidence to the Tribunal – very significant quantities and value of illegal substances – poor study history – limited English skills – level of the applicant’s involvement in the criminal enterprise – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 March 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Vietnam born in 1997. The visa that was cancelled was granted on 25 January 2020, expiring on 15 March 2022.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 10 February 2022. The applicant provided responses to the NOICC on 15 February 2022 and 23 February 2022.

4. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant has been convicted of an offence against a law of the Commonwealth or a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Tribunal conducted a search on the Provider Registration and International Student Management System (PRISMS) on 26 April 2022. The results of the search show that the applicant is currently enrolled in a package course at Sydney Metro College comprising of a Diploma of Project Management from 13 March 2023 to 10 March 2024 (CCE76456) and an Advanced Diploma of Program Management from 11 March 2024 to 9 March 2025 (CCE76C82).

6. The applicant appeared before the Tribunal on 16 August 2022 at 9.30am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. As requested, the Tribunal took evidence from the applicant’s sister, Ms Nguyen Thi Huong.

7. 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

8. 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?

9. 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 Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. Regulation 2.43(1)(oa) provides that a ground for cancellation is that the holder of the visa 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)).

10. The delegate’s decision record and documents on the Department file and Tribunal file indicates that, according to a report provided by the NSW Police, the applicant has been convicted of the following criminal offence on 23 October 2020: Knowingly take part - cultivate >= large comm qty – cannabis – SI. The applicant was sentenced to two years, four months imprisonment with a non-parole period of one year, two months. He was released from custody on 28 January 2022.

11. In the hearing, the applicant agreed that he had been convicted and sentenced as indicated.

12. 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 visa should be cancelled.

    Consideration of discretion

13. 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’. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder's control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

14. On 25 July 2022, the applicant submitted to the Tribunal an unsealed statement of Agreed Statement of Facts. The Tribunal subsequently obtained the signed and sealed version of the statement through the assistance of NSW Police and Office of the Director of Public Prosecution. The facts based on the sealed version are summarised below.

15. The applicant was observed under surveillance on 19 October 2022, entering a greenhouse alleged to have been used to cultivate cannabis. He was in the company of other men. He was dressed in fluoro-coloured work shirts, hats, gum boots and gloves. On 22 October 2022, all accused were arrested at the house.

16. There were ten greenhouses separated by approximately one meter. The applicant was arrested at the house. The facts sheet describes what appears to be a sophisticated cultivation system in the greenhouses and the house nearby. Inside a cabin, police located a cupboard containing 39 bags of cannabis packaged in vacuum sealed bags. They weighed at 36.04 kg. There were 5,593 cannabis plants present. 1,208 of those were in the seedling room of the house. The estimated value of the cannabis was $16.78 million.

17. The applicant’s DNA profile and fingerprints were not matched to any of the items analysed.

18. Police made enquiries in respect of the call charge records for the applicant’s phone in the range of between 17 and 21 October 2020 inclusive. His phone was used to access the cell tower close to the property on 17, 18, 19 and 21 October 2020.

19. The applicant provided the following in an email in response to the NOICC (not for spelling or grammar):

    My name is Huy Quan Nguyen, with my cancellation ID is C6ZXWR1RQ.

    I am writing this letter in order to explain some of the reasons that can take into consider not to cancel my visa.

    First of all, I am apologies for making one of the biggest mistake that I have taken in my life and affected to the country that I am living. The ground for cancellation appears to exist that I am convicted to the offend Knowingly take part in cultivate cannabis. This happened in 17/10/2020 when the COVID first came to Sydney and affected my life. I lost my part time job and my school was closed. I was very stressful that time because my parents in Vietnam couldn’t support my finance because they were also affected by the pandemic. I would never think I will break the law by participate in the cultivate cannabis. I honestly just curious and want to earn a little bit of money as my friend told me he can earn money from that job and it was enough for him to pay the study fee. I just been in there for only 5 days and most of the time I did cleaning house and cooked for other guys. The police didn’t find any of my finger print in the equipment that use for cultivate cannabis. Only 5 days live there and I have to spend more than a year in jail was just a nightmare for me.

    I know I did a really serious mistake and I am deeply apology for that. I extremely regret for what I did at my young age. I was wasting more than 1 year in a Correctional Centre and have thought I could have done something better to my life. I have never using or smoking cigarettes less say cannabis. All I want at that time is to earn money for my study and my expense while the pandemic happened. I didn’t aim to do anything worse than that.

    Secondly, my visa should not be cancelled because since I moved to Sydney to live and study here, I have never did anything wrong or to break the law in Australia. I am helpful to other people who need my help. I go to work in a limited time frame for student 40 hours a fortnight and I always pay tax every year. I would love to be given a second chance to re-planning my life. I had a very big lesson from doing the wrong thing and I would never let my careless decision affects my life. I promise I will never let it happen again. It damaged my life and hurtful to people who love me. If my visa is canceled, my parents will very dissapointed at me. My parents have worked very hard to give me a good life, study oversea and living in a beautiful country.  All I want is to help my family, not to disappointed them. Beside that, I have my younger brother who is going to come here to study too. If I have a chance to stay back and continue to study at Sydney so I can help my brother who is 8 years old when he is coming over here.

    While I was in Correctional Centre, I couldn’t contact to my school about my case so now I have to apply to another school. I desire to study and re-build my life. I don’t want to waste my time, my chance, my life to doing wrong thing again. I would love to have a bright future, to be success and to be a good son, good brother, and a good person for the society. My goal is to be a business man, to set up an international company, to create more jobs for the poor people, and to help people who need help all over the world. If I have to go back to my country, my dream will be delayed and it is really hard my parents who believe in their son. Once again, please accept my apologies and please give me a second chance.

    I am applying to my new school and waiting for my new COE. I was released on 28/01/2022 and was immediately want to be back to school. I promise I will send you my COE as soon as I have it.

    Thank you so much for viewing my letter and I wish I can have another chance.

20. The Tribunal noted to the applicant in the hearing that the apparent Statement of Agreed Facts that had been provided by the applicant to the Tribunal is different to the sealed Statement of Agreed Facts that the Tribunal had independently obtained from the New South Wales Police. The latter is signed by the applicant. The Tribunal noted that the statement provided by the applicant has deleted relevant paragraphs relating to the quantity of cannabis seized and its estimated street value. The fact that it appears that the applicant has provided doctored evidence to the Tribunal claiming it to be genuine could cause the Tribunal to consider untruthfulness and deception on the part of the applicant and to be adverse in considering his credibility and integrity. In response, the applicant initially sought to defer to his sister, Ms Huong, who was present in the hearing. The Tribunal asked the applicant to reply to the Tribunal directly. The applicant was very hesitant before indicating that it was his sister who provided this information to the Tribunal.

21. When Ms Huong gave evidence later in the hearing she indicated that she did provide the relevant Facts Sheet but had been given by the lawyer who represented the applicant in the criminal proceedings. She indicated that she did not know that it was inaccurate.

22. Although the Tribunal has some doubts as to knowledge by the applicant’s sister that the supposed Agreed Facts Sheet was not accurate, the Tribunal is persuaded the applicant had no knowledge of this. The applicant was extremely reserved and shy in the hearing with initially it being requested that the applicant’s sister give evidence on his behalf. The Tribunal accepts a degree of naïveté in terms of the applicant’s character. Given that the Tribunal accepts that the applicant was not aware of the inaccurate Facts Sheet provided this is not a discretionary factor considered adverse to the applicant.

23. The Tribunal put to the applicant pursuant to the procedural requirements of s 359AA of the Act the factual claims made in the NSW Police Agreed Facts Sheet indicating that those facts together with the convictions indicate the applicant’s not insignificant involvement in cultivation in very significant quantities and value of illegal substances. This information is relevant because it could intend to obviate the applicant’s entitlement to be in Australia on the privilege of holding a Student visa. The consequence of relying on this information and the convictions could be to determine that there are significant discretionary factors adverse to the applicant in the Tribunal exercising its discretion as to whether the visa ought to be cancelled.

24. The Tribunal indicated that it would consider the applicant’s written response to the NOICC in relation to these matters indicating that the applicant had made a mistake and should be given a second chance and that he was only involved in the cultivation for a limited period. The applicant was asked if there were any further comments he wished to make in relation to the adverse information.

25. It was elected that written comments would be provided after the hearing. The Tribunal notes that in the hearing itself both the applicant and his sister commented that the applicant was not cognisant of the criminal nature of the enterprise.

26. In the written comments provided following the hearing the following response (not corrected for spelling or grammar):

    My name is Huy Quan Nguyen and I am writing in relation to my application for review in respect of a decision to cancel a Subclass 500 (Student) visa.

    I attended a hearing on 16/08/2022 and I would like to provide more information in writing.

    First of all, I know it would be better if I have a lawyer to write this letter for me. However, I could not afford that service so I am writing it by myself. If there is any mistake in this letter please understand for me.

    Second, I would like to thank you for giving me a chance so I could explain what was happening to me that affected my visa.

    I am extremely regretful because I did not take my study seriously a few years ago. I was too young at that time to realize what is important and to be honest, I do not have a plan for my future. “What come will come”, for some people that quote helps them to feel less stressed. For me, however,  when I think “what comes will come”, I let myself in a comfortable zone without trying to focus on the main purpose when I came to Australia, which is to study. I always think that I have time and that is why I changed many courses because I think the course was not suitable for me. Besides that, I am a very shy person, and starting a conversation with someone is really a challenge for me. My English became worse. 

    The Covid pandemic was a life-changing period for everyone including me. My school was closed and I had a lot of free time. By chance, I was introduced that there was a job with good pay and far from Sydney. I have never traveled anywhere else since I came to Australia. Hence, I took the chance. Kill two birds with one stone, good paid and exploring a new place, especially it came at the perfect time when Covid happened, I lost my job and the school was closed.

    I would never imagine that my choice lead me to the wrong path. I was caught 4 days later after working at that new place. I was really shocked and no words can describe my feeling at that time.

    About my new job, they asked me to do house cleaning and help them to remove some trees which later I realize are cannabis. The tree that in my country, it is prohibited and I have never seen that tree before. I was staying at home most of the time to do cooking and cleaning, washing clothes. The cannabis farm was located quite far from the house. I did not know how many trees they have until the day I got seized.

    Disappointed in myself, I did not want my parents to know. I was stressed out and at the time in the Correctional Complex, I had time to reflect on myself. None of the days in custody, I stop praying for the day I be released. I desired to go out of jail and rebuild my life. I had wasted many years living without a plan and a purpose. I cannot wait for the day I can come back to school, sit in the classroom, busy note down all the new, useful knowledge, and start talking to my classmate and to people that I used to scare to talk to. Never in my life, I have felt how bad I want to be a free person and to make my life a meaningful life.

    However, I was told that, if I plead not guilty, I will have to stay in jail for a longer time. If I plead guilty, I will be released in a shorter time. I was 23-24 at the time, I don’t want to spend any more days in jail and I decided to plead guilty so I can start my life again. The price of working at the wrong place for 4 days was 14 months in jail, was just too much for me to stand.

    The first thing I did when I was released was register for a new course which is Certificate IV, Diploma in Project Management and Advanced Diploma in Program Management at Sydney Metro College. My agency said I should choose a bigger school so I can have my visa granted. However, I cannot afford the expensive fee. Hence, I did research carefully, I chose the school that I can afford. No matter how big or small the school, I think the most important thing is how much I want to study and to start my new life.

    I know my English now is still not good enough but I am learning hard to prepare for my future course. 14 months in custody helped me realize many things in life and I desire to restart my life. Please consider my case and give me another chance to study in Australia. If my visa is refused, I cannot apply to any developed country with good education like Australia. 

27. The Tribunal explored with the applicant, in the hearing, his study history in Australia. The PRISMS record indicates that the applicant commenced studying English in November 2017. The applicant indicates that he finished an English course on 18 May 2018. The PRISMS record otherwise indicates the subsequent 12 different enrolments all being cancelled for either unsatisfactory course progress, leaving the provider, unsatisfactory attendance or non-commencement of studies. In advance of the hearing the Tribunal had written to the applicant asking him to provide evidence of all courses passed while studying in Australia together with transcripts showing progress in courses not completed. In response, the applicant provided a Certificate of Attainment in English Language Programs dated 18 May 2018. Also provided was a transcript showing the applicant deemed as competent in seven units undertaken in the Certificate IV in Commercial Cookery commenced on 14 October 2019 ending on 3 June 2020 when PRISMS indicates that the student transferred to a course at another provider.

1. The applicant provided an undated statement to the Tribunal in relation to the ‘GTE Requirement’. It refers to reasons for a new visa application. It refers to application for a package of courses which are a Certificate IV, Diploma in Project Management and Advanced Diploma in Project Management from March 2022 to March 2025 at Sydney Metro College.

2. The applicant provided written information as to his academic background both in Vietnam and Australia. The applicant refers to his hospitality course being beyond his academic capacity. The applicant refers to changing courses from July 2020 at New South Wales Business College. The applicant had a hard time with these courses and decided to discontinue these studies. The applicant then describes the courses he now wishes to pursue and the rationale for doing so. The applicant indicates that after he has completed these courses he will return to Vietnam and take the first steps in his career as a project assistant in construction.

3. In the hearing, the applicant indicated that his difficulties in progressing with his studies were due to his poor English. It was reasonably clear to the Tribunal in the hearing that the applicant’s current English skills were not of a high level given his need for an interpreter together with the fact that he clearly was not able to understand comments to the Tribunal made in English by his sister, which needed to be translated.

4. The Tribunal put to the applicant in hearing that his current limited English skills could suggest in the context of his past study difficulties in Australia that his English level was not sufficient to enable him undertaking courses in project management. The applicant indicated that he is continuing to improve his English skills through watching YouTube videos.

5. The applicant indicated that the hardship to him if the visa remains cancelled and his compelling reasons to remain in Australia is so that he can progress with his study here to create better future prospects for himself and a good paying job in the future.

6. The Tribunal is prepared to accept some hardship to the applicant if he cannot progress with his studies as he would wish but this is tempered by the applicant’s poor study history in Australia and the Tribunal’s doubts that the applicant’s English skills are at a level that would allow him to undertake courses in project management. This is reinforced by the applicant indicating that his academic capacity was not sufficient to undertake a culinary course. This tends to suggest there would be significantly greater academic challenges for the applicant in pursuing courses in project management.

7. The Tribunal also accepts hardship to the applicant if the visa remains cancelled in terms of limitations in applying for other visas onshore. The Tribunal accepts that this a visa remains cancelled he could be an unlawful non-citizen and subject to immigration detention. However, the Tribunal considers that the applicant has eligibility for a Bridging visa to make his status lawful as he makes arrangements to leave the country.

8. The Tribunal put to the applicant in the hearing that even if it were to accept that the applicant had a good study history in Australia and genuine and feasible prospect of undertaking the courses that he now wishes to undertake, the fact of the convictions together with the applicant’s clear involvement in the growing of very significant quantities of cannabis, albeit the DNA and fingerprints were not found on items seized, it would be unlikely to consider that a good study history and genuine study intentions outweighed matters adverse to the applicant arising from the convictions.

9. The applicant in response referred to his lack of awareness as to the criminal enterprise he was involved with.

10. The applicant indicated in the hearing that he would have difficulties returning to Vietnam because he would not be able to travel overseas or get a job because of his criminal conviction in Australia. The Tribunal expressed scepticism to the applicant that his criminal record in Australia would be asked for the purpose of most employment in Vietnam. The applicant did not counter this. However, the applicant later in hearing indicated that it is his intention to return to Vietnam.

11. The applicant has not provided evidence that satisfies the Tribunal that he would likely meet criteria for a protection visa and therefore the discretionary factor that Australia would owe non-refoulment obligations to the applicant is not relevant.

12. The applicant indicated in hearing that no children in Australia’s interests are affected by the cancellation.

13. A core issue in this case is the level of the applicant’s involvement in the criminal enterprise and his cognizance of its illegality. The Tribunal is prepared to accept that the applicant was a minor player in the drug enterprise and was naïve in becoming involved without significantly turning his mind to its criminal nature. Nevertheless, the applicant must take responsibility for his involvement in a drug enterprise of significant scale resulting in a quite serious conviction of being knowingly involved in the criminal enterprise with a term of imprisonment. The Tribunal takes into account in the applicant’s favour his naïveté but the factual circumstances leading to the conviction and the conviction itself are factors not insignificantly adverse to the applicant and the Tribunal’s exercise of its discretion.

14. There would need to be quite significant countervailing discretionary factors in the applicant’s favour that would outweigh the circumstances leading to the conviction and the conviction itself. A good study history and prospects in Australia might be countervailing factors, if that were the case. However, as the applicant has a very poor study history and, in the Tribunal’s view, quite poor prospects in terms of the courses that he wishes to study.

15. The applicant’s study history and future prospects in Australia come nowhere near overcoming considerations adverse to the applicant relating to the conviction. Other discretionary factors including compelling reasons for him to remain in Australia and any hardship faced by the applicant if the visa remains cancelled, did not persuade the Tribunal to exercise its discretion not to cancel his visa.

16. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member