Sae Ang (Migration)

Sae Ang (Migration) [2021] AATA 1559 (21 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Watcharin Sae Ang
CASE NUMBER:  2101234
HOME AFFAIRS REFERENCE(S):          BCC2020/2711721
MEMBER:Antoinette Younes
DATE:21 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Statement made on 21 April 2021 at 3:43 pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – criminal convictions – community correction order – discretion to cancel visa – visa and study history – circumstances of offences – potential hardship – application for substantive visa in progress – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3), 359AA
Migration Regulations 1994 (Cth), r 2.43(oa)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that the applicant has been convicted of offences in NSW. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 20 April 2021 to give evidence and present arguments.
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
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 r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant.
Section 116 provides:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(g) a prescribed ground for cancelling a visa applies to the holder.
The prescribed grounds for cancellation under s. 116(1)(g) are found in regulation 2.43(1)(oa) of the Regulations which provides:

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

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

The applicant was granted on 2 November 2020 the Bridging A (subclass 010) visa, in association with a pending application for a Student (subclass 500) visa.
During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.
The information before the Tribunal indicates that:
- On 23 November 2020, the applicant was convicted and sentenced for three offences at the Sydney Downing Centre Local Court in NSW, namely, Behave in offensive manner in/near public place/school, Intentionally record intimate image without consent etc-T2, and Intentionally distribute intimate image w/o consent etc-T2.
- For the first offence, the outcome was S10A conviction with no other penalty. For the second and third offences, the outcome was Community Correction Order for 18 months commencing on 23/11/2020 and expiring on 22/5/2022, reporting to the City Community Corrections Office by 4pm on 25/11/2020.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) & RESPONSE
On 14 December 2020, the Department sent to the applicant a NOITCC on the basis of the above convictions which suggested that s.116(1)(g) is enlivened. On 20 December 2020, the applicant responded to the NOITCC by accepting that he has been convicted of the above offences. He provided explanations as discussed below.
There is no dispute that the applicant has been convicted of offences against laws in NSW. Therefore s.116 (1)(g) is enlivened in that there is a prescribed ground for cancelling the applicant’s visa, as contemplated by r. 2.43(1)(oa).
On the evidence, 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’.
·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
The applicant gave evidence that he came to Australia originally in 2012 as the holder of a Work and Holiday visa (WHV) and subsequently, he was granted a number of student visas. He gave evidence that whilst holding the student visas, he completed a Diploma and an Advanced Diploma in Business, as well as Diploma and Advanced Diploma in Marketing and Leadership. He stated that he has applied for a student visa which is pending finalisation.
The Tribunal asked the applicant about his future study plans and he indicated that he would like to complete the Certificate IV in Business course in which he was enrolled but has been unable to complete subsequent to the cancellation of the visa.
The Tribunal notes that the delegate’s decision record refers to information contained in the Provider Registration and International Student Management System (PRISMS) confirming the applicant’s holding of student visas subclass 572 and 500 and completion of various courses.
The Tribunal is satisfied on the evidence that the applicant’s purpose to travel and stay in Australia was to work and study. The Tribunal is satisfied that he has studied and completed courses consistent with the student visas which he has held. There is no information before the Tribunal to suggest that the applicant did not engage in work whilst holding the WHV.
The applicant is also remaining in Australia to meet his legal obligations in terms of the community corrections order which commenced on 23 November 2020 and expires on 22 May 2022.
The Tribunal gives this consideration weight in favour of the applicant.
·the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with visa conditions. The Tribunal is of the view that compliance with visa conditions is a legitimate expectation.
The Tribunal gives this consideration neutral weight.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant gave evidence that in case of the visa cancellation, he would need to return to Thailand in circumstances where the country is experiencing economic instability as well as Covid-19 challenges.
In response to the NOITCC, the applicant noted that his visa should not be cancelled because the student visa is his last hope and his family in Thailand wanted him to finish the course which is a “perfect combination for studying abroad in order to get the best of an opportunity for working in the future”. Moreover, he could not imagine his life if he were to return to Thailand in these circumstances, including political issues in Thailand. He is now studying a Certificate IV of Business and he enjoys that course. During the hearing, the applicant confirmed that he is no longer studying that course due to the cancellation of the visa.
The Tribunal accepts that in case of cancellation, the applicant may face difficulties in completing his studies in Australia, noting however that this is the cancellation of a Bridging visa and not the substantive student visa, the application for which has not yet been finalised. The applicant gave evidence that he works between 15 to 20 hours a week.
The Tribunal acknowledges that the applicant could potentially suffer financial, psychological and emotional hardship due to the cancellation. The Tribunal appreciates also that the applicant has been in Australia for a number of years and that during this time, it is plausible that he would have formed ties and connections in Australia.
The Tribunal gives this consideration weight in the applicant’s favour.
·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The circumstances in which the ground for cancellation arose were that the applicant was convicted of a number of offences as outlined above.
In his response to the NOITCC, the applicant indicated that:
·   He is deeply apologetic for what has happened and he is not proud. He knows it was wrong and he fully cooperated with the New South Wales police. He went to Court and respected the legal process. He pleaded guilty and he is now serving the Community Corrections Order for 18 months for which he is committed.
·   He experienced the toughest time in living, working and studying during the coronavirus outbreak in Australia. His work was limited and he lost hours of work. The cost of living in household expenses in Sydney are higher in comparison to his home country. He has been a careful resident and he has complied with the expected coronavirus practices such as wearing a mask and practising social distancing.
·   The sentencing Judge sent him to a psychologist who noted that the coronavirus as well as associated pressures had “caused me a tough time and mainly do anything to get by day by day.”
In accordance with s.359AA, the Tribunal discussed with the applicant the existence of a New South Wales Police Facts Sheet setting out the details of the offences. In essence, the Tribunal advised that the offences relate to events of 4 June 2020 when police officers were conducting routine patrols inside Central Railway Station Grand Concourse and they observed two males in the main male bathrooms perform oral sexual acts in cubicle 10 of the bathrooms. It is noted that the police had a conversation with the applicant who informed them that he had approached the other male earlier offering a variety of sexual acts to be performed while inside the public bathroom and that the applicant agreed to perform oral sexual acts.
It is further noted in the Facts Sheet that the applicant had a bottle of liquid amyl nitrate inside his jacket which he had intended to inhale during the sexual act. The applicant made admissions to using his personal mobile device to film sexual acts in public and filming other males without their consent during sexual acts. The police opened the device which apparently contained multiple images and videos which the applicant had filmed. Subsequently digital evidence revealed that “explicit images and videos extracted from the accused phone… The numerous digital recordings depict the accused recording unknown victims in a private act and at times the accused engaging in sexual acts. Most of these recordings appear to be made without the victims’ consent…shared publicly online…”
The Tribunal advised the applicant that it considered the above matters to be serious. In response, the applicant stated that he understands the seriousness of those matters and that he “shouldn’t have done it”. He stated Covid-19 impacted on his part-time employment and in order to make money he recorded videos from which he obtained a financial benefit. He stated that due to lack of experience, he did not fully appreciate consent issues and that after the Court’s verdict, he started to see a psychologist and a social worker who assisted him in appreciating consent issues.
The Tribunal discussed with the applicant the an undated letter from Kate Solomon, Forensic Psychologist, New South Wales Justice Corrective Services, Leichardt Community Corrections titled To whom it may concern, noting that the applicant is currently attending psychological sessions to address his offending behaviour and that he has attended on two occasions, namely on 15 March and 29 March 2021. There is also a letter from Cody Westaway dated 12 April 2021, New South Wales Justice Corrective Services, Community Corrections Division noting that consistent with the Community Correction Order, the applicant is required to report to Leichhardt Community corrections on a fortnightly basis. The Tribunal asked the applicant why he started seeing Ms Solomon as late as March 2021 and he stated because he was unable to obtain an earlier appointment.
The Tribunal has taken into consideration the applicant’s responses and acknowledgement of wrongdoing. However, the applicant has been convicted of offences which the Tribunal considers to be serious as they involve offensive behaviour which could have impacted on other users of the public toilets, potentially including miners who needed to use those facilities. The Tribunal also considers to be serious the applicant’s recording without consent victims been involved in explicit sexual acts, for the applicant’s financial benefit.
The Tribunal has noted the applicant’s version of the events. The Court’s finding is that the applicant had committed the offences with which he was charged. It is not open to this Tribunal to go beyond the findings of the Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point…
It is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. The Tribunal must accept those findings and conclusions.
The Tribunal is satisfied on the evidence that the applicant’s behaviour was not beyond his control.
The Tribunal gives this aspect significant weight in favour of cancellation.
·past and present behaviour of the visa holder towards the department
The Tribunal notes that the applicant responded to the NOITCC.
The Tribunal gives this aspect weight in favour of the applicant.
·whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that they would be any consequential cancellation under this s.140.
The Tribunal gives this aspect in neutral weight.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia. He would be subject to s.48 which may prevent him from applying for certain visas whilst in Australia. The applicant would also be subject to Public Interest Criterion (PIC) 4013.
The Tribunal considers potential detention, removal from Australia, the impacts of s.48 and PIC 4013 to be intended legislative consequences.
The Tribunal gives this aspect neutral weight.
·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 (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)
There is no evidence before the Tribunal to suggest that Australia would be in breach of its international obligations, including non-refoulement, in case of cancellation of the applicant’s visa.
The Tribunal gives this aspect neutral weight.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Bridging Visa is not a permanent visa.
The Tribunal gives this aspect neutral weight.
·any other relevant matters
There are no other matters before the Tribunal warranted consideration.
The Tribunal acknowledges that the cancellation of a visa is a serious outcome for a visa holder. The Tribunal considers on the evidence that there are limited matters in favour of the applicant and that those in favour of cancellation outweigh those favourable to the applicant. The Tribunal has carefully considered the applicant’s circumstances. The task of weighing up considerations is not a numerical or a prescribed process; it is a question of balance. Although there are some considerations favourable to the applicant, the applicant has committed offences which the Tribunal considers to be serious and the evidence in totality supports a finding that the visa should be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.
Antoinette Younes

Senior Member

[2021] AATA 1559

21 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction