Oliveira Da Silva (Migration)

Oliveira Da Silva (Migration) [2022] AATA 1844 (31 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thiago Oliveira Da Silva
REPRESENTATIVE:  Mrs Alessia Comandini
CASE NUMBER:  2119582
HOME AFFAIRS REFERENCE(S):          BCC2021/474758
MEMBER:David McCulloch
DATE:31 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 31 March 2022 at 8:47am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –criminal conviction – risk of the applicant reoffending is minimal – absence would cause hardship to his partner – impact on his relationship with his Australian citizen partner – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994 (Cth), r 2.43
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 17 December 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).
The applicant is a citizen of Brazil born on 10 September 1985. The visa that was cancelled was granted on 15 May 2020, expiring on 25 August 2022.
A Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 3 November 2021. The applicant provided a response to the NOICC on 8 December 2021.
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.
According to the applicant’s movement details held by the Department of Home Affairs (the Department), the applicant is currently staying in Australia on a Bridging visa E, Subclass 050, which was granted on 4 January 2022 with the following conditions: 8401 (must report); 8506 (must notify address); 8510 (must show or obtain passport); 8207 (no study); 8564 (must not engage in criminal conduct).
The applicant appeared before the Tribunal on 23 March 2022 at 9.30am to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review, and the representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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?
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 (Cth) (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)).
According to the court result provided by the Local Court of NSW obtained by the Tribunal, the applicant pleaded guilty and was convicted of the following criminal offence on 14 September 2021 at the Downing Centre Local Court: intentionally import tier 1 goods without approval (joint commission) – under s 20(1)(a) of the Crimes Act 1914 (Cth), released without passing sentence on condition that the defendant upon giving security in the amount of $500.00 is to comply with the following condition: that the defendant is to be of good behaviour for a period of 12 months.
In the hearing, the applicant agreed that he had been convicted as indicated.
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
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, and 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.
The New South Wales Police Facts Sheet outlines the allegations against the applicant relating to the charges.
The applicant was charged with six counts under s 233BAA(4) of the Customs Act 1901 (Cth). A co-accused was named Bruno Falcao Xenofonte.
Australian Border Force (ABF) and Australian Federal Police (AFP) collaborated in Strike Force Tambelin investigating the importation of prohibited drugs into the Eastern suburbs of NSW. On 6 November 2020, a consignment said to contain ‘medicine’ arrived from India via Australia Post. ABF examined the parcel and identified: 60 vials containing testosterone enanthate, 30 vials containing Somatropin (human growth hormone), 100 tablets of Clenbuterol (steroid) hydrochloride, 300 tablets of Stanozolol (steroid), 50 tablets of Anasterone (Oxymetholone – steroid) and 400 tablets of Oxandrolone (steroid). The consignee’s details were Thiago Oliveira Da Silva, with a delivery address of 75 Birrel St, Queens Park NSW 2022.
Investigators substituted the content of the parcel with an inert substance. Upon further investigation and analysis, on 1 February 2020, the parcel was taken to Bondi Beach Post Office for secure storage. A parcel delivery card was placed in the letter box at the above address for collection.
On 2 February 2021 at around 12:20 pm, Xenofonte, in the company of Juan Narvaez, attended Bondi Beach Post Office to collect the parcel while presenting a permission slip from the applicant. Police were contacted.
Xenofonte was arrested. During an interview with police, Xenofonte denied knowledge of the contents of the parcel. Police reviewed Xenofonte’s mobile phone and observed a number of messages between Xenofonte and the applicant. The messages indicate that they planned collection of the package. One message in particular at 10:50 am on 7 November 2020 from the applicant to Xenofonte said, ‘Hoping hasn’t been stopped’ in Portuguese.
On 2 February 2021 at 8:45 pm, police attended 75 Birrel St, Queens Park NSW 2022 and met the applicant. The applicant was subsequently charged.
A submission was provided on behalf of the applicant in response to the NOICC. It indicates relevantly as follows. The applicant arrived in Australia on 18 November 2016. The applicant is employed as a store manager in a supplements store where he works 40 hours a week and is highly regarded. References from employers are referred to. Reference is made to other references attesting to the applicant’s good character.
The submission acknowledges the convictions. It indicates that as a result of impending financial stress from COVID-19 and the impact on the fitness industry, the applicant made the imprudent decision to seek to import substances to increase his physical appearance. The applicant had the mistaken belief that this would increase his own marketability and income from his work.
Given that the maximum penalty for the offences is five years’ imprisonment or $110,000 fine, the penalty ultimately imposed by the court together with the Director of Public Prosecutions not electing to have the matter heard on indictment indicates the level of the offence and level of risk of the applicant. The applicant does not represent a risk to the Australian community.
The applicant is no longer employed as a personal trainer and has no need or intention to resort to similar behaviour in the future. The applicant has no criminal history in Australia or Brazil.
Submissions are made in relation to relevant discretionary factors. Submissions are made with respect to the purpose of the applicant’s stay and need to remain in Australia. It is indicated that the applicant is currently enrolled in a Master’s of Accounting which is scheduled for completion in June 2022. Hardship will be suffered by the applicant if the visa is cancelled because his enrolment in this course will be unable to be maintained. The approximately $30,000 he spent on this course will be lost. This would cause significant financial hardship to the applicant. If the visa is cancelled, the Australian community will lose the benefit of a feepaying student. Australia will also be deprived of a valuable asset in the applicant being employed in Australia as an accountant after the conclusion of his study.
It is submitted that the applicant being unable to maintain his enrolment would be an unintended consequence of the conviction and sentence by the court.
Upon completion of his study, the applicant intends to commence working in the finance industry as an accountant and to continue his relationship with his de facto partner. Evidence is provided as to the applicant’s successful academic performance, with evidence provided.
If the visa is cancelled, the applicant will not be able to forge a successful, happy and safe life in Brazil and the applicant’s written statement is referred to.
It is submitted that, other than the conviction, the applicant has complied with conditions on his visa.
In terms of hardship, this will not only be suffered by the applicant if the visa is cancelled, but also by his partner and family. The applicant has been in a de facto relationship with Chiara Berlusconi since June 2020. A Notice of Intended Marriage is provided. The relationship is committed. They live together and share financial resources and intend to eventually marry. Prior to commencing the relationship, Miss Berlusconi was hospitalised with a mental health condition and continues to suffer from depressive episodes due to childhood trauma. The applicant has had a positive impact on his partner’s welfare. The applicant also cares for Miss Berlusconi’s elderly and disabled parents. If the visa is cancelled, this will negatively impact the Berlusconi family more broadly.
In conclusion, it is submitted that the risk of the applicant reoffending is minimal. Without seeking to trivialise the conduct leading to the convictions, the circumstances were transient. The applicant has taken positive steps to ensure that he does not reoffend. It is in the public interest for the applicant not to have his visa cancelled and to remain in Australia as a contributing member of society. The applicant has a compelling need to remain in Australia. His absence would cause hardship to his partner and her vulnerable and dependent parents.
Provided to the Department in support were the following:
·A character reference letter from Harrison Kaissis, the applicant’s former employer, undated. The letter stated that the applicant was professional, friendly, non-confrontational and patient. He was also accountable to his work. The author of the letter submitted that the applicant had ‘pushed back heavily against the ordering of a banned product as a warning had been provided which he didn’t want to risk further disciplines which wasn’t adhered to by the other parties in question’.
·A character reference letter from Thomas Doig, a general manager of Elite Supplements Australia, dated 2 December 2021. The letter stated that the applicant was very regretful and remorseful for his actions. The applicant was said to be an ‘upstanding’ employee, trustworthy and honest with a strong moral compass.
·A joint character reference from Camila Siqueira dos Santos Malafaia and Thalles Elvas Malafaia, undated, which stated that the applicant was a positive influence on the couple’s health and lifestyle. The authors also shared some life stories and mentioned the applicant’s relationship with his grandmother.
·A letter from Ademir Cortes, campus manager at Kaplan Business School Australia, dated 1 December 2021 confirming that the applicant was a full-time student at the institution from 15 July 2020.
·A financial statement from Kaplan Business School Australia showing the applicant’s transaction history and a total balance of zero as at 27 October 2021.
·An academic transcript from Kaplan Business School Australia.
·A statutory declaration of the applicant dated 8 December 2021.
·Notice of intended marriage to Miss Chiara Irene Berlusconi. The notice was signed on 1 December 2021 by both parties.
·A statutory declaration from Chiara Irene Berlusconi dated 8 December 2021, which declared that the declarant was a victim of sexual molestation and explained how it has affected her life since. The declarant declared that the applicant had been an immense support to her mental health. The applicant was providing ‘aid’ to her family, including care and respite to the declarant’s father and other support to her mother. The declarant declared that she and the applicant were planning a long-term life together and the applicant’s absence in her life would be adverse to her mental health.
·A witness statement to NSW Police. This document is illegible.
·A statutory declaration from Stephanie Monique Berlusconi dated 8 December 2021, which declared that the declarant’s father suffers from chronic kidney disease and required daily dialysis and assistance for daily necessities. Her mother is deaf and aging. The applicant had been helping the declarant’s mother communicate. The declarant stated that her sister, Chiara, who is the applicant’s partner, suffers from mood disorders. She has noticed changes to Chiara’s mental state in a positive way since Chiara’s relationship with the applicant became serious. The applicant’s assistance with her family allowed her to pursue her career. The declarant also declared that she relies on the applicant providing respite to herself physically and emotionally.
The applicant provided on 21 March 2022 the following additional documents to the Tribunal:
·Screenshots of selected text messages between the applicant and an unidentified person which have been translated into English by a NAATI-certified Portuguese to English translator. The date/s of the text messages are not shown.
·Payment receipt for the applicant’s National Police Check on 20 March 2022.
·The applicant’s criminal record check from the Ministry of Justice and Public Security Federal Police in Brazil, dated 19 March 2022. The report notes in bold and underlined font that ‘[t]his certificate was issued based on data reported by the applicant and shall be deemed valid only if accompanied by personal documentation to confirm such data’. It further notes that the authenticity of the document ‘MUST’ be confirmed.
·A clearance certificate from the Federal Court of Appeals for the 2nd Circuit in Brazil, dated 19 March 2022. It has a remark that the authenticity of this certificate can be confirmed on the webpage of the Federal Court of Appeals for the 2nd Circuit.
·A relationship certificate between the applicant and Miss Chiara Irene Berlusconi, issued on 1 September 2021 in NSW.
·A character reference from Amanda O’Driscoll, dated 2 December 2021, which stated that the applicant was a kind and giving person, always helpful to other students and always going the extra mile in his work to keep customers happy. The author also stated that the applicant had a positive influence on other students, was well-liked, reliable, trustworthy and selfless. The author believed that the applicant was manipulated and used in relation to his criminal conduct, which put him in a compromising position.
·A character reference from Lynette Berlusconi, dated 13 March 2022, which stated that that applicant was a gentle person, placid, considerate and well-mannered. He was helpful and a wonderful support to the author and her family. The author also stated that the applicant studied hard.
·A character reference from Miss Stephanie Berlusconi, dated 16 March 2022, which stated that the applicant was a diligent student, an introverted and reticent person who was humble and very quiet. The author believed that the applicant’s criminal conduct was caused by a lack of understanding and was uncharacteristic of him; in addition, it was done without malice and disrespect to the Australian government. The author stated that the applicant regretted the situation and was frustrated at his naivety and lack of awareness.
·A character reference from Harrison Kaissis, undated. The author previously provided a character reference to the Department which was very similar in wording. While there are slight differences in some of the words in the latter reference, particularly with a new paragraph added and some re-wording of sentences, the substance of this character reference is very similar to the previous one.
·A character reference from Jay Bonaretti, undated, which stated that the applicant was gentle, intelligent, honest, very hard-working and passionate about his study. The author believed that the applicant’s criminal conduct was out of character and without malice.
·A statutory declaration of the applicant which is unsigned. The wording of this statutory declaration is largely similar to the applicant’s previous statutory declaration dated 8 December 2021 that was provided to the Department, with some new paragraphs added or changed. The applicant also submitted a photograph of the signature page of what appears to be taken from a statutory declaration. This page was dated 18 March 2022 and signed by the applicant.
·A witness statement by Pedro Telleria Teixeira, dated 4 June 2021, accompanied by a joint certification from Language Services and Multicultural NSW. In the statement and certification, Mr Teixeira declared that text consisting of 274 pages has been translated from Portuguese to English accurately. The certification notes that the translator did not sight the original document from which the translation was derived.
·274 pages of text messages, partially translated into English.

In the applicant’s statements he refers to his life in Brazil, including growing up. The applicant indicates that during COVID-19 in Australia he thought that if he was in better condition he could get more personal training clients. The applicant got involved with a person who was a friend at the time and offered to get substances for the applicant, which the applicant gave him money to do. At the time he did not know where this was coming from and his friend ordered the substances ‘putting on my address and my name’. A couple of days later the applicant received a letter from border control saying that the parcel was seized. The applicant immediately told his friend to stop whatever he was doing and that the applicant didn’t want any problems. The friend insisted and ordered again because he said the person wouldn’t give them money back. Everything was in the applicant’s name and address against his will and without authorisation. The applicant regrets being involved. He thought he could trust the other person. People should be able to redeem themselves.
After the hearing, on 23 March 2022 a written submission was provided on behalf of the applicant. The submission provided further detail of the circumstances of the offences, and claimed that the applicant requested that his co-accused stop the second importation of the prohibited substances, but this was unsuccessful. Reference is made to the fact of the applicant having no other criminal history, which the Tribunal accepts. Submissions are made as to the consequences of cancellation and the hardship that would be suffered by the applicant and his partner and her family. Submissions are made in relation to other discretionary factors argued as favourable to the applicant in the exercise of the Tribunal’s discretion.
In the hearing, the applicant reiterated different aspects indicated in the various written statements and submissions. The applicant indicated that he was not the initiator of the importation of steroids and sought to backtrack from the arrangement after it was initially facilitated. Nevertheless, the applicant took responsibility for some degree of complicity in the importation of the restricted substances. The applicant indicated that he took steps to avoid being the person who picked up the package addressed to him from the post office, and this is confirmed in the text messages provided.
Oral submissions were made as to the very significant hardship the applicant would face if the visa remained cancelled. The applicant had been making good progress in his Master of Accounting, which he was not able to continue from January 2022 as a result of restrictions on his Bridging visa. The applicant indicates that he has two semesters to complete before gaining this degree and has already spent $32,000 on tuition fees, which would be wasted if he is not able to continue to study. The Tribunal accepts from evidence provided that the applicant has been making appropriate progress in his studies and that prior to his study of the Master of Accounting he undertook and completed various English language and health fitness courses from late 2016.
The applicant indicated that if the visa is reinstated, he will finish his current degree and then seek employment opportunities in Australia.
The applicant indicated that he has been with his Australian citizen partner, who he intends to marry, for approximately two years. The Tribunal accepts from the evidence provided that the applicant has provided not insignificant emotional and practical support to both his partner and her family. The Tribunal accepts very considerable hardship to the applicant if the visa remains cancelled in terms of the applicant having to return to Brazil without his partner and not being eligible to apply, if that were his wish, for a partner visa onshore.
The Tribunal asked the applicant if ultimately he has an intention with his partner to make a life in Australia or to return with his partner to Brazil. The applicant indicated that that is a matter still being considered, but clearly relevant is the presence of his partner’s aged mother in Australia. The applicant’s partner’s father had recently died.
The Tribunal indicated to the applicant in the hearing that an individual in Australia with the privilege of being here on a student visa should have that entitlement seriously questioned if they behaved in a way that resulted in a criminal conviction, even if the penalty was not severe. The Tribunal would need to be persuaded of quite considerable countervailing factors to not exercise the discretion to cancel the visa.
In this case, the Tribunal is persuaded that there are requisite countervailing factors.
Considering all of the evidence, the Tribunal was persuaded and impressed by the contrition of the applicant for his role in the illegal importation and the fact that he accepted a degree of criminal responsibility. The Tribunal accepts that the applicant was not the initiator of the importation of the restricted substances and that at a certain point he tried to cancel the arrangement. Nevertheless, the applicant takes responsibility for having some involvement in the criminal enterprise. The Tribunal takes into account the relative leniency of the penalty.
The Tribunal has, in the applicant’s favour, considered the various supportive character references provided on his behalf.
The Tribunal considers a significant degree of hardship would be caused to the applicant if the visa remained cancelled due to a combination of him not being able to continue and finish his current degree, which he has made good progress in to date. The Tribunal also takes into account in the applicant’s favour his positive study record in Australia previously.
The Tribunal considers an even more significant degree of hardship would be caused to the applicant if the visa remains cancelled in terms of the disruption of future employment plans in Australia and the impact on his relationship with his Australian citizen partner who he intends to marry.
In summary, weighed against the applicant is the fact that the applicant has been convicted of a criminal offence in Australia while being here with the privilege of holding a student visa. This significantly weighs in favour of exercising the discretion to cancel the visa. However, the Tribunal accepts that the applicant was not the initiator and at a certain point tried to cancel the arrangement for importation, unsuccessfully.
The Tribunal balances in the applicant’s favour the very significant hardship he will face if the visa remains cancelled in terms of: him not being able to complete his degree in Australia and wasted tuition fees; being unable progress to employment options; serious disruption to his relationship with his Australian citizen partner who he intends to marry; and potentially in relation to progressing visa pathways to permanent residence in Australia.
The Tribunal considers that the penalty and hardship to the applicant if the visa remains cancelled is disproportionate to his wrongdoing in terms of the circumstances leading to the conviction. The Tribunal considers that a sufficient penalty has been suffered by the applicant as a result of the conviction and penalty given, combined with the very significant uncertainty he has faced since as to whether he would be able to remain in Australia, and particularly the future of his relationship with his partner.
In all of the circumstances, the Tribunal determines not to exercise its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
David McCulloch
Member

[2022] AATA 1844

31 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Charge

Jurisdiction