REN (Migration)

[2021] AATA 1221

REN (Migration) [2021] AATA 1221 (20 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nan Ren

CASE NUMBER:  2102513

HOME AFFAIRS REFERENCE(S):          BCC2020/1048274

MEMBER:Kira Raif

DATE:20 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 20 April 2021 at 10:02am

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – criminal convictions – discretion to cancel visa – previous student visa cancelled and time as unlawful non-resident – circumstances of offending and lawyer’s advice to plead guilty – conditional release orders – potential hardship – wife’s mental health and treatment – best interests of young Australian citizen child – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 23 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant had been granted the Temporary Partner visa on 11 May 2019. On 15 December 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling the visa under s. 116 of the Act. The applicant provided his response to the NOICC and the visa was cancelled on 23 February 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 20 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

5. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant. It states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had been granted the Partner (Temporary) Subclass 820 visa. It is stated that the Department received information from the NSW Police indicating that on 6 March 2020 the applicant had been convicted of the following offences:

Larceny

Conditional Release Order for 12 months

(6/3/20 – 5/3/21)

Possess housebreaking implements

Conditional Release Order for 12 months

(6/3/20 – 5/3/21)

1. Having regard to that evidence, the Tribunal finds that the applicant has been convicted of offences in the state of NSW. The Tribunal finds that the applicant was a holder of a Temporary Partner visa, which is a temporary visa other than a Bridging Subclass 050 and Subclass 051 visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

2. 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

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

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

4. The purpose of the Partner visa is to enable the applicant to remain with his partner and await the outcome of his application for the permanent visa. The applicant’s evidence to the Tribunal is that he continues to live with his partner in a spousal relationship. The Tribunal accepts that the applicant is fulfilling the purpose of his visa. Further, the presence of his partner and minor child in Australia may constitute a compelling need for the applicant to remain in Australia.

   The extent of compliance with visa conditions

5. The primary decision record indicates that the applicant had previously had a Student visa cancelled for a breach of visa condition and that the applicant remained in Australia as an unlawful non-citizen. The applicant explained to the Tribunal that his mother sent him to study in Australia against his will and selected a major for him that he had no interest in. He felt like a failure and could not face his mother, so he stayed in Australia unlawfully. The applicant states that he was too young at the time and did not know what to do and he did not receive letters from Immigration because he did not tell Immigration about his change of address. The applicant’s past non-compliance with visa conditions and immigration laws more broadly is of considerable concern to the Tribunal.

6. There is no evidence that there has been any non-compliance in relation to the Partner visa.

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

7. In his submission to the delegate the applicant explains that he has been living in Australia for eight years and is used to the Australian way of life. The Tribunal acknowledges that this may be the case, although the Tribunal is mindful that the applicant has not been granted a permanent visa and until such visa is granted, cannot expect to remain in Australia permanently.

8. The applicant provided in response to the NOICC a statement from his partner and his own statement. The evidence suggests that the applicant continues to reside with his partner and they have a child together, who is an Australian citizen. For the purpose of this review, and without the full assessment, the Tribunal is prepared to accept that the applicant may be in a genuine relationship with his partner. The applicant states that if his visa is cancelled, his wife would have to raise the child on her own. The applicant’s refers to his wife’s anxiety and stress due to his conviction and the possibility of having to leave Australia and he presented to the Tribunal a psychological report, as well as other evidence relating to his partner and the family affairs. The Tribunal accepts that the cancellation of the visa, which may lead to the applicant being required to depart Australia and to his separation from his wife and child, would cause considerable hardship not only to the applicant but also his partner.

9. The applicant told the Tribunal that his daughter was born in Australia and is presently three years old and attending childcare. The child is an Australian citizen and is not a citizen of China and would not be able to attend school in China. The Tribunal is mindful that as an Australian citizen, there is no suggestion that the child would be required to leave Australia but acknowledges that if the applicant was to leave Australia and his child to remain in Australia, that would cause separation of the applicant from his minor child.

10. The applicant states that he and his partner have purchased a  property and have a substantial mortgage. The applicant explained that the property was purchased in his wife’s name only due to his visa status. The applicant presented to the Tribunal his financial records relating to the mortgage, income and of a joint account. He states that his wife is the carer for their daughter and is receiving treatment for depression, so she cannot work while he works and supports the family. The applicant refers to his wife’s ‘serious condition’ and regular attendance at the psychologist, stating that it is affecting her ability to care for the child, as well as live independently. The Tribunal accepts that the applicant’s departure from Australia may result in financial and other hardship for the applicant and his family.

11. The applicant refers to the length of time he has lived in Australia, his settlement in this country, being employed and paying taxes and the friendships he has formed. The Tribunal accepts that the applicant has settled in Australia (albeit while holding temporary visas only) and prefers to live int his country.

12. The applicant’s partner gave oral evidence to the Tribunal and spoke about her reliance on the applicant and the need for him to remain in Australia to care for the family.

    Circumstances in which ground of cancellation arose

13. The ground for cancellation arises because the applicant held a temporary visa and had been convicted of offences in Australia. In his statement in response to the NOICC the applicant states that his car was searched by police and they found a credit card which was not in his name and a letter box key. The applicant states that a friend gave him the key and asked him to collect a letter from a girlfriend’s house and he collected the letter. The police told him the key was a master key which could be used on multiple letterboxes and the letter was not addressed to the friend’s girlfriend. The applicant states that he realised he had been ‘conned’ and tried to contact the friend but was unable to. He had been charged. The applicant states that his wife developed post-natal depression and on advice from his barrister, he rushed and admitted the guilt to avoid spending large amounts on the lawyer’s fees.

14. In oral evidence the applicant stated that the crimes occurred because he made bad friends. The applicant states that a friend gave him the key and he did not realise it was a master key. The friend said he was returning to China and asked the applicant for a favour to collect the goods. He has not been able to get in touch with that friend. His lawyer was inexperienced and advised him to plead guilty to minimise the impact but that is not what has occurred and his wife and child had been affected. The applicant expressed remorse for his conduct. 

15. The Tribunal does not consider that  the ground for cancellation arose due to circumstances beyond the applicant’s control.

    Past and present behaviour of the visa holder towards the department

16. Nothing adverse is known about the applicant’s past and present behaviour toward the Department.

    Whether there would be consequential cancellations under s.140

17. There are no persons who would be subject to consequential cancellation.

    Whether there are mandatory legal consequences

18. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he would be detained indefinitely. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period if he is to make an application for a visa offshore and there are very limited types of visas he may be able to apply onshore. If the applicant does not hold the temporary Partner visa, his eligibility for the permanent Partner visa may be affected.

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

19. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm or persecution upon return to China. The Tribunal finds that Australia’s non-refoulement obligations do not arise in this case.

20. The applicant has a three year old child who was born in Australia and is an Australian citizen. The Tribunal accepts that the child relies on the applicant physically, emotionally and financially and the Tribunal considers that it is in the best interests of the child to remain in the care of both parents, given her young age. The Tribunal is of the view that the child can travel to China with both parents but the Tribunal acknowledges the applicant’s evidence that the child is not a citizen of China (the applicant’s evidence is that the child is an Australian citizen and dual citizenship is not permitted under the Chinese law) and as a result, there may be some restrictions to the child’s ability to access health care, education and other social activities. The Tribunal has formed the view that the best interests of the child require the applicant to remain in Australia where he can continue to provide for the child.

21. The applicant’s partner and child reside in Australia and the principles of family unity may require his presence in Australia.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

22. The visa in question is not a permanent visa but is a pathway to a permanent visa. The Tribunal accepts that the applicant has strong family ties in Australia.

    Any other relevant matters

23. The applicant provided in response to the NOICC character references and the Tribunal accepts that those who provided such statement believe the applicant to be a good person. The applicant provided to the Tribunal a psychological assessment relating to his partner. While the Tribunal is concerned about the timing of her approach to the health professional and the fact that many of the symptoms are self-reported, the Tribunal accepts the evidence contained in that report. The Tribunal accepts that for the reason of the sponsor’s health, and other reasons set out above, considerable hardship would be caused to the applicant and sponsor and their family is the visa is cancelled.

24. The applicant told the Tribunal that if he was required to leave Australia, his family would not follow him. He states that his wife suffers from depression and if she was to go to China, treatment may be different and they would not be able to afford it. The Tribunal does not accept that evidence as the applicant has not presented evidence of the treatment required and the cost of treatment in China and that such costs could not be met.

25. The applicant refers to the length of his stay in Australia and states that he and his family visited China for brief periods only. He states that he considers Australia to be his home. This has been addressed above..

26. The Tribunal has considered the totality of the applicant’s circumstances. The applicant has been convicted of offences and held a temporary visa, so there are grounds for cancelling his visa. There are several considerations in favour of the cancellation. In particular, the Tribunal places weight on the applicant’s past non-compliance with visa conditions and immigration laws more broadly (as evidenced by his status as an unlawful non-citizen).

27. However, the Tribunal places weight on the fact that the offences are relatively minor and this is reflected in the sentence. In this case, the Tribunal places greater weight on the hardship that would be caused to the applicant and his family if the visa is cancelled and if the applicant is required to leave Australia as a result. The Tribunal places weight on the fact that the applicant appears to be in a genuine spousal relationship with his partner and that they have a minor child. The applicant is a main breadwinner in the family and the Tribunal has formed the view that his departure from Australia may cause significant financial, as well as other hardship to the family. The Tribunal is also of the view that it would be in the best interests of the child to be in the care of both parents and, given various obligations and restrictions, the Tribunal accepts the applicant’s evidence that his partner would not travel to China, if he was required to leave Australia. That is, the cancellation of the visa would result in the separation of the family unit. The Tribunal also notes that should the applicant commit further offences, his visa may be cancelled or it may be determined that he does not pass the character test. However, on the basis of the present circumstances, taking into account the nature of the offending, as well as the significant hardship that the cancellation would cause to the family unit, the Tribunal has formed the view that the circumstances that weigh against the cancellation should be given greater weight than those that are in favour of the cancellation.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 (Spouse) visa.

    Kira Raif
    Senior Member