Nguyen (Migration)

[2022] AATA 2576

Nguyen (Migration) [2022] AATA 2576 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Van The Nguyen

CASE NUMBER:  2115736

HOME AFFAIRS REFERENCE(S):          BCC2020/2277477

MEMBER:David McCulloch

DATE:1 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2022 at 9:05am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – applicant convicted of criminal offences – future study intensions – mental health issues – financial hardship – decision under review affirmed

LEGISLATION

Crimes (Sentencing Procedure) Act (NSW), s 10
Drug Misuse and Trafficking Act 1985 (NSW), Schedule 1
Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 October 2021 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 on 22 May 1993. The visa that was cancelled was granted on 12 November 2019, expiring on 9 September 2023.

3. A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 20 May 2021. The applicant provided three responses to the NOICC on 3 June 2021.

4. Information held by the Department of Home Affairs indicates that the applicant is in Australia on a Bridging Visa E Subclass 050 which was granted on 12 November 2021. The applicant’s Bridging visa has the following conditions imposed: 8401 (must report); 8506 (must notify address); 8510 (must show passport); 8207 (no study), and; 8564 (must not commit crime).

5. The Tribunal scheduled a hearing to be held on 25 March 2022 at 9:30 am. The hearing was to occur by video using Microsoft Teams due to the COVID-19 pandemic. The applicant provided a medical certificate dated 4 March 2022 indicating he was unfit for work from 14 February 2022 until 29 April 2022. The certificate indicated that he was suffering from anxiety, depression – headache, insomnia, family problems, nervousness, poor memory and poor concentration.

6. The Tribunal wrote to the applicant postponing the hearing and indicating that, in terms of scheduling a new hearing, he should provide a full report from his treating doctor as to the medical conditions from which he is suffering. The report should include details of treatment and prognosis and an indication as to the timeframe in which he would be in a position to give evidence to the Tribunal. The letter indicated that the doctor preparing the report should comply with the Tribunal’s requirements for expert reports and should be aware that they may be summoned to appear before the Tribunal to give evidence in relation to the medical condition.

7. The applicant did not respond to this request in the timeframe indicated.

8. The Tribunal rescheduled the hearing for 3 May 2022 at 9.30 am. The invitation dated 24 March 2022 indicated that if the applicant was still maintaining that he could not appear for medical reasons a full medical report would need to be provided in the form as previously indicated.

9. On 2 May 2022, the day before the scheduled second hearing, the applicant forwarded an email to the Tribunal together with medical documents requesting another postponement of the hearing on medical grounds. A medical certificate from the applicant’s general practitioner, D Pham, was provided in similar terms to that having been previously provided indicating that the applicant was now unfit for work from 23 March 2022 until 20 May 2022.

10. Also provided dated 29 March 2022 was a handwritten note from Dr Shiu-Kwong Law, consultant psychiatrist which indicates that the applicant was suffering in the last three months from ‘some anxiety symptoms (tension headache, nervousness, mild depression, impaired concentration, adverse recent memory)’.  Mental examination confirmed that the applicant is anxious. The letter recommends that the applicant have six months’ sick leave for him to take a break from study and to receive some medication to relax. A script for an indecipherable medication was also provided.

11. After consideration of all of this information, the Tribunal determined not to postpone the hearing that was scheduled for the next day, and the applicant was advised accordingly by email. The Tribunal indicated to the applicant that it would assess and discuss his capacity to give evidence at the hearing. The Tribunal made this decision on the basis that the applicant’s condition had not improved in the timeframe provided that the applicant was unfit for work in the original GP’s assessment. The indication by the psychiatrist that the applicant needed six months’ leave created a concern for the Tribunal that the applicant’s conditions may be permanent. The Tribunal considered there was a significant likelihood that it would be maintained in perpetuity as the applicant was suffering from these conditions. The Tribunal also assessed that it seemed reasonably the case that the applicant would have capacity to a degree to participate in a hearing. None of the medical reports specifically state that the applicant is unfit to attend a hearing. The Tribunal notes that the psychiatrist’s diagnosis is of anxiety and mild depression, including causing poor concentration and short-term memory issues. While these issues might create challenges for the Tribunal they could be taken into account by the Tribunal and addressed through frequent breaks in hearing and, if necessary, multiple hearings.

12. The applicant did not appear at the hearing scheduled for 3 May 2022. The Tribunal determined after that non-appearance to make an interim decision to dismiss the application. However, as the Tribunal was preparing to do this, later in the day the applicant contacted the Tribunal by telephone. The applicant was called back with the assistance of an interpreter. It was indicated to the applicant that the Tribunal was proposing to dismiss the application (giving the applicant the opportunity to respond in writing why the matter should not be dismissed). The Tribunal indicated to the applicant that it would not proceed down this path if the applicant committed to attending another scheduled hearing. The applicant indicated that he would attend such a hearing. The Tribunal subsequently wrote to the applicant giving him the option if he had the facilities to participate in hearing from home by video using appropriate devices and internet connections. The Tribunal noted that this may lessen the stress of the hearing for the applicant taking into account his medical conditions. It was indicated that otherwise the hearing would be held in person. In response the applicant indicated that he would prefer the hearing to be held by video with him being able to remain at home.

13. A subsequent video hearing using Microsoft Teams hearing was scheduled for 28 June 2022 at 9:30 am. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented by a registered migration agent who attended the hearing.

14. The Tribunal asked the applicant at the beginning of the hearing if there were any issues affecting his ability to give evidence and answer questions at the hearing. The applicant said that there were not. The Tribunal noted that the applicant previously claimed mental health issues. The applicant indicated that he had made a good recovery and was ready to progress in the hearing.

15. 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

16. 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?

17. 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(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)).

18. The delegate’s decision record and documents on the Department file indicates that, according to a report provided by the NSW Police, the applicant has been convicted of the following crime at the Goulburn District Court on 16 December 2020: one count of being found on/entering/leaving drug premises – first offence.  The delegate’s decision indicates on 14 December 2020 a sentence of imprisonment for six months commencing 5 June 2020 concluding on 4 December 2020. An appeal against severity of this sentence was lodged and the order was varied on 1 February 2021. The varied order sentenced the applicant to a Conditional Release for six months commencing on 1 February 2021 and concluding on 31 July 2021, with the conviction confirmed.

19. The submission lodged on behalf of the applicant in response to the NOICC on 3 June 2021 impliedly accepts the conviction.  A submission was provided by the applicant’s lawyer on

    
    

    27 June 2022. It is submitted that the magistrate erred in recording a conviction given the minor nature of the offence and should have pursuant to section 10 of the Crimes (Sentencing Procedure) Act discharged the offence without recording a conviction.

20. As put to the applicant in the hearing, the fact of the matter is that a conviction was recorded and therefore the applicant has been convicted of a criminal offence irrespective of allegations as to whether the magistrate erred. The Tribunal notes that the matter had been considered on appeal and the conviction remained. This being the case there seems to be no doubt to the Tribunal that there is a requisite conviction. The applicant was given the opportunity to respond.

21. In response the applicant indicated that the conviction is minor, impliedly accepting that there is a conviction. The applicant’s migration agent in oral submissions maintained that there was an error in the recording of the conviction and it should not be considered that there is a conviction.

22. Given the clear evidence, the Tribunal does not agree with the submission to this effect of the applicant’s lawyer. The Tribunal considers that the evidence discloses that the applicant has been convicted of a criminal offence of a state.

23. 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

24. 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.

25. The applicant submitted the following material in response to the NOICC:

    ·Written submission on the applicant’s behalf dated 3 June 2021 in response to the NOICC.

    ·Letter from Kingsway Institute dated 20 December 2019, confirming that the applicant was studying General English as a full-time student from 3 December 2018 until 14 December 2018.

    ·Conditional letter of offer and statement of fees from Business Institute of Australia dated 19 September 2019.

    ·Confirmation of Enrolment (CoE) for Certificate IV in Marketing and Communication at Business Institute of Australia from 12 April 2021 to 9 January 2022.

    ·Statement of Attainment from Business Institute of Australia issued on 31 July 2020 showing completion of three units in a Certificate IV in Marketing and Communication.

    ·CoE for Diploma of Marketing and Communication at Business Institute of Australia from 10 January 2022 to 8 January 2023.

    ·CoE for Advanced Diploma of Marketing and Communication at Business Institute of Australia from 9 January 2023 to 7 July 2024.

    ·The applicant’s counsel’s submission in the District Court of New South Wales, dated 1 February 2021, in relation to the applicant’s criminal sentence.

    ·CoE for Diploma of Leadership and Management at Business Institute of Australia from 7 January 2019 to 5 January 2020.

26. The submission lodged in response to the NOICC on behalf of the applicant makes reference to the fact that the applicant has been charged with ‘cultivation’ as well as ‘entering drug premises’. The submission notes that the cultivation charges were withdrawn by the prosecution because they lacked evidence. The applicant pleaded guilty to the entering drug premises offence because he was found at the location. The magistrate sentenced the applicant to the period already served while on remand, being six months. The applicant lodged an appeal against the severity of the sentence. He was successful. It was determined that the custodial sentence was wrong and the applicant was sentenced to a good behaviour bond.

27. It is submitted that the applicant has no prior bad deeds. He has been a person with good character.  It is submitted that the applicant is a first offender and should be given a second chance. There are no other known acts indicating that the applicant has not been a good student. It is submitted that the offence was trivial. The indictable offence was withdrawn.

28. The cancellation would be devastating for the applicant. He has prepared himself to come to Australia to study. He would be returning to Vietnam ‘empty-handed’ in terms of his education and his time spent in Australia would be wasted.

29. A request in the submission is made for an extension of eight weeks to obtain the transcript of the District Court appeal to advise of the basis on which the applicant was successful. The delegate’s decision notes that four months have passed since the request and no further information has been received from the agent, albeit that there was not a response by the delegate to the request. It is indicated that consideration will be had of counsel’s submissions on sentence at the appeal, which had been provided with the response to the NOICC.

30. The submission in response to the NOICC provides details of the applicant’s study history in Australia and related documents. This study history is referred to further below.

31. As indicated, a further submission was provided on 27 June 2022. In addition to the matter indicated above it makes submissions that cancellation will affect the applicant’s future, aspirations and self-esteem. There would be difficulties for the applicant if he returned to Vietnam without qualifications and that this would affect his parents and his job prospects. The applicant wishes to complete his qualifications for the sake of his now deceased grandmother.

32. The submission indicates that the applicant has been a genuine student in Australia other than when his visa was cancelled. He has abided bail conditions on his visa.  The applicant undertakes voluntary work. The applicant only has a short time left for his study in Australia.

33. It is submitted that the applicant is of good character and has abided by all laws and has never otherwise been charged by police in Australia or Vietnam. The applicant is kind- hearted.

34. Submissions were made in terms of the applicant not knowing of the criminal activity on the premises and being in the wrong place at the wrong time. He was just there to cut grass and clean the garden.

35. The New South Wales Police Facts Sheet outlines the allegations against the applicant relating to the charges.

36. On 4 June 2020, police made an application for a search warrant which was granted by Goulburn Local Court. On 5 June 2020, police attended 763 Jerrara Road, Marulan in execution of the search warrant and arrested two male persons, C and T. The applicant ran from the location and was arrested after a foot pursuit. All three arrestees were wearing gardening gloves.

37. Police identified nine poly grow tunnels at the location with three tunnels containing cannabis plants within. Police located in a bedroom 18 grow trays containing cannabis plants all under lighting. Police located a number of drying racks used in the processing of cannabis head for sale and distribution inside the attached garage area.

38. An electronic recorded interview was conducted with the applicant refusing to answer any questions.

39. As a result of the search warrant, police have located the following: poly grow tunnel 1 – 438 cannabis plants with heights between 300mm and 600mm; poly grow tunnel 2 – 752 cannabis plants with heights between 100mm and 120mm; poly grow tunnel 3 – 590 cannabis plants with heights between 500mm and 1 metre.

40. Total cannabis plants was 1780 with the estimated value in the vicinity of $3,560,000. The remaining poly grow tunnels contained no cannabis plants but it was evident that the tunnels had previously been used for the same purpose.

41. As a result of the search of the dwelling/shed, police located 18 grow trays within bedroom 2 with the contents being identified as cannabis plants. The total number of cannabis plants was 663 with all measuring under 100mm. Police also located a total of 693 seedlings soaking in a solution believed to be growth medium. The estimated value of the 663 cannabis plants was $1,326,000.

42. Total combined value of the cannabis plants was estimated at $4,886,000. A total number of identified cannabis plants cultivated via enhanced indoor means was 2443, or 12 times greater than the Large Commercial Quantity as per Schedule 1 of the Drug Misuse and Trafficking Act 1985.

43. Staff from Essential Energy attended the premises and advised police that power to the property was being tapped directly into the energy grid at the main power pole/box, with the meter being bypassed.

44. After the hearing, the applicant provided to the Tribunal the following Statutory Declaration dated 28 June 2022 (not corrected for spelling or grammar):

    1.       I was born on 22/05/1993 in Vietnam.

    2.       Today I appear at the AAT Tribunal hearing regarding my student visa cancellation appeal. I was unable to fully express myself as my mind was not cleared due to my nervousness due to my worries regarding my visa cancellation. I wish clarify my response further in regarding the issues relating to my enrolled course.

    3.       I wish to confirm the following details: After I completed studying Diploma of Leadership and Management, I then began studying Certificate IV and Diploma and Advanced Diploma in Marketing and Communication from January 2020. I was arrested in June 2020, so I stopped my studies. I resumed the course again after I was released in April 2021 and stopped in October 2021 after my visa got cancelled.

    4.       I was hoping that I would be able to continue with this course after my visa cancellation gets revoked. However, my old school did not provide me with the offer. I then decided that this would be a good opportunity for me to change my school to Harbourside Institue of Australia as from my research, I found out that this school teaches better and their qualification is more valuable. Therefore, I would also like to use this opportunity to change to Certificate IV in Business at that place ,as I believe that studying Business would give me a broader knowledge in the area of business. Having wider aspects of the knowledge in business, it would definitely help me to successfully run a business in Vietnam. I also know that I would be able be apply for credit from my previous course of Marketing and Communication over to my new course it is apart of the business course.

    5.       The Member also questioned whether I would be able to continue with my study, after relying on a Doctor Certificate's which I had provided to the Tribunal dated March 2022. The Certificate recommended that I would have a six months break from my studies. I wish to confirm that eversince I received treatment from my Doctor and unconditional support from my friends and family, my conditions had improved and eventually I have recovered very fast so I believe that I am now well and would be able to go back to my studies. I have also come to realised that even though, my grandmother had passed away, but she is still there from above, always there keeping an eye on me, looking after me and protect me. Since having that new mentality in my mind, I mentally got stronger, I decided that I did not want to disappoint my grandmother anymore. I was determined to get a hold of myself, take control of my life and future, so I have decided to go back to study again to gain the knowledge and return to Vietnam and start my own business.

    6.       Kindly allow me to remain back in Australia so I can complete my studies so my dreams can be realised, to not upset my grandmother and parents. I promise that I will forever be careful and not be mixed with the wrong crowd ever again.

1. In the hearing, The Tribunal put to the applicant pursuant to s 359AA of the Act information contained in the New South Wales Police Facts Sheet relating to the charges which together with the convictions is relevant because it indicates a not immaterial connection between the applicant and a substantial criminal drug enterprise. Notwithstanding both the successful appeal of the custodial sentence and the fact that the cultivation charges were withdrawn, the applicant has nevertheless been convicted of a criminal offence pertaining to drugs which the Tribunal considers is more than trivial, albeit not at the very serious end of the spectrum, including noting the imposition on appeal of a Conditional Release Order.

2. The fact of the conviction and surrounding circumstances could cause the view of the Tribunal that the applicant has engaged in criminal conduct which removes his entitlement to the privilege of a student visa enabling him to be in Australia. The consequence of relying on this information could result in significant discretionary factors that would lead the Tribunal to exercising its discretion to cancel the visa.

3. The Tribunal noted to the applicant that it will consider in relation to these issues the written submissions and statement (prior to the hearing) that has been provided on his behalf which indicates that the cultivation charges were withdrawn, the successful appeal in terms of the severity of the sentence in that there are no other character concerns with respect to the applicant and that he has been a good student. The Tribunal indicated the claims that the applicant was only gardening will be considered. However, the Tribunal does not likely accept it is plausible that individuals involved in illegal drug cultivation would hire a gardener in proximity of the legal activities. Additionally, the fact of the applicant running for 1.2 kilometres before being caught by police suggests complicity in the illegal enterprise.

4. The applicant was given the opportunity to provide any further information either orally or in writing. In response, the applicant referred to panicking when the police arrived but after 1.2 kilometres of running realised he was culpable, not when detained by the police.

5. In relation to the plausibility of the applicant being hired just to garden the applicant agreed in the hearing that he was to stay overnight at the premises. In terms of this compounding concerns that this would have occurred in the vicinity of a drug enterprise in which he was not involved, the applicant indicated that he cannot explain why he was hired in these circumstances.

6. If it were the case that the applicant had no involvement in the criminal drug enterprise and was there inadvertently this would be a very significant discretionary factor to be weighed in his favour. However, for the reasons put to the applicant the Tribunal is not satisfied that he had no knowledge of or involvement in the criminal enterprise. The Tribunal has taken into account the information in the statement of the applicant provided after the hearing. The Tribunal considers that it begs incredulity the coincidence of the applicant being found running in gardening gloves from the premises together with two others with gardening gloves that he was not involved in the enterprise. As indicated, the Tribunal considers it implausible that a gardener would be hired in proximity of a criminal enterprise particularly to stay overnight or that the applicant would run from authorities for 1.2 kilometres if he had not done anything wrong.

7. The Tribunal is not satisfied that the conviction is as a result of extenuating circumstances beyond the applicant’s control in terms of the applicant having knowledge of the enterprise.

8. The Tribunal considers the applicant’s study history and the hardship he will face if the visa remains cancelled in terms of completing and/or continuing study in Australia.

9. The written submission provided in response to the NOICC and associated study documents provided indicates that in Australia the applicant studied English from 3 December 2018 until 14 December 2018 and completed this intermediate level 2 week course. In January 2019 the applicant started to study a Diploma of Leadership and Management at Business Institute of Australia which is indicated in PRISMS as ‘finished’. Provided is evidence that this diploma was obtained on 22 January 2020 and the applicant being declared competent in 12 units in the course. Provided is a Statement of Attainment July 2020 showing the passing of three units by the applicant and a Certificate IV in Marketing. PRISMS indicates this course was enrolled in from 6 January 2020 but cancelled on 31 July 2020 for non-payment of fees. A CoE is shown in a further enrolment in the Certificate IV in Marketing and Communication commencing on 12 April 2021 ending on 9 January 2022. Evidence is provided of the applicant having completed three units in this course. The submission notes that in about June 2020 the applicant had been arrested. It indicates that in about April 2021 the applicant resumed his study at Business Institute of Australia.

10. More recent documents provided to the Tribunal indicated on 21 June 2022 the applicant being enrolled in a Certificate IV in Business commencing 17 July 2022 followed by a Diploma of Business commencing in July 2023 followed by an Advanced Diploma of Business commencing in July 2024.

11. The Tribunal asked the applicant in the hearing to talk about his future study intensions and how he would use his study on return to Vietnam. The Tribunal asked the applicant as to hardship he would face if the visa was cancelled. In response, the applicant indicated intentions to progress with the Certificate IV in Business in July 2022 and the other courses to follow. The applicant reiterated study intentions in a written submission provided after the hearing.

12. In March 2022 the applicant provided a psychiatrist report to the Tribunal indicating that he needed a six-month break from study because of his mental health issues. However, the Tribunal indicated that the applicant now indicates a desire to study in July 2022 and noted the apparent inconsistency as to the extent of previously claimed mental health issues. The Tribunal indicated that this could indicate disingenuousness on the part of the applicant.

13. The applicant in response indicated that there were many problematic issues arising when this diagnosis was obtained but with treatment and support the issues have resolved much more quickly than expected. The applicant reiterated these points in a written submission provided after the hearing.

14. The Tribunal maintains some concerns as to the applicant genuinely wishing to engage with the Tribunal given the prognosis of claimed mental health issues which have not eventuated. This creates some concerns to a degree as to the applicant’s motivation to genuinely participate in the Tribunal process, which is to a small extent undermining of credibility.

15. The applicant indicated that it would be a hardship if he has to return to Vietnam without undertaking and completing these courses and that it would limit his options in terms of wanting to start a construction equipment business. It would also disappoint his parents and the memory of his deceased grandmother. The applicant’s migration agent reiterated orally hardship in this respect and repeated other written submissions previously made.

16. The Tribunal accepts that the applicant has satisfactorily passed courses and units during his time in Australia. This is a discretionary factor weighed in the applicant’s favour. The Tribunal accepts that the applicant has further study that he wishes to undertake.

17. The applicant already has some qualifications in Australia which could be used to facilitate career options in Vietnam. Nevertheless, the Tribunal accepts some degree of hardship to the applicant if he is not able to continue with further studies having already invested in previous studies and time spent in Australia.

18. The Tribunal accepts there will be disappointment for the applicant and his family if he returns to Vietnam not obtaining the full suite of qualifications that he would wish. The Tribunal accepts some degree of hardship may be caused without further qualifications which may limit employment options in Vietnam and not make his stay in Australia as fruitful as it could have been.

19. The Tribunal accepts hardship to the applicant if the visa remains cancelled in terms of the inability this would cause in applying for other visas onshore. The Tribunal accepts that if the applicant’s visa remains cancelled he could be an unlawful non-citizen, although the Tribunal considers that the applicant would likely be eligible to hold a bridging visa to make his status lawful while he makes arrangements to leave the country.

20. In the hearing, the applicant indicated that there are no children in Australia whose interests are affected by the cancellation. The applicant indicated that he does not fear persecution or significant harm on return to Vietnam.

21. After the hearing, the applicant provided the following testimonials as to character:

    ·Mr Trung Thuy Vu provided a statutory declaration to the Tribunal, declared on 28 June 2022, which states that the applicant is a decent person whom he trusts and relies on. Mr Vu also states that the applicant is a responsible, studious person with a good heart.

    ·Tinh Anh, a Venerable of the Pho Minh Temple in Bankstown, provided a letter to the Tribunal, dated 28 June 2022. The letter states that the author has known the applicant since the beginning of 2020 when the applicant came to the Pagoda to do voluntary work, such as helping out at events and cleaning the temple. The author believes that the applicant is a sincere and honest man who is working hard to correct his past mistakes. The author states that the applicant is remorseful for his actions.

22. The Tribunal accepts testimonials as to the applicant’s good character and these matters weighed in his favour in the Tribunal exercising its discretion.

23. Prior to weighing up discretionary factors the Tribunal notes the following. The Departmental file contains a non-disclosure certificate issued pursuant to s 375A of the Act relating, it would seem, to certain documents on the Departmental file. It is indicated that the certificate has been issued because some of the documents disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods. Another document is subject to the certificate on the basis that it pertains to information provided ‘in confidence’ and that person has not consented to the disclosure of the information.

24. The Tribunal notes that the reference numbers of the documents subject to the certificate are not in fact apparent in the Departmental file. However, on the pages of all of the documents in the Departmental file is in the top left-hand corner of the documents notations indicating the document numbers and other information. A number of those documents contain the notation ‘NDC Redacted’, which would suggest that they are the documents subject to the certificate. Those documents include the New South Wales Police Facts Sheet relating to the charges. As this information would have been provided to the applicant as part of his criminal proceedings, the Tribunal does not consider that the certificate is valid as it pertains to this document. Other documents appear to be internal working documents which the Tribunal does not consider justifies public interest immunity and therefore the certificate as it applies to such documents is also not valid.

25. As the document which purports to contain material provided in confidence is not readily apparent from the face of the certificate, the Tribunal does not consider that the certificate is valid in relation to this document. The Tribunal notes that, other than the Fact Sheet, none of the documents otherwise that would appear to be subject to the non-disclosure certificate are relevant to the matters on review.

26. The Tribunal weighs key discretionary factors. Significantly adverse to the applicant is the fact that the Tribunal does not accept that the applicant had no knowledge of or involvement in the criminal drug enterprise. The Tribunal is not satisfied that there were extenuating circumstances beyond the applicant’s control leading to the conviction. Weighing in the applicant’s favour is the successful study undertaken by the applicant in Australia. The Tribunal accepts a degree of hardship to the applicant and his family if he has to return to Vietnam prematurely without completing the study that he wishes to in Australia, including limiting to at least some degree business and career intentions. The Tribunal takes into account testimonials as to the applicant’s good character and making innocent mistakes.

27. Balancing discretionary factors, the hardship the applicant will face and other discretionary factors in his favour do not overcome the circumstances of the conviction and the Tribunal’s belief that the applicant had at least some complicity in the criminal enterprise, albeit acknowledging that the conviction of the applicant is not at the serious end of the spectrum.

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

    DECISION

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

    David McCulloch
    Member