Supaporn (Migration)

[2023] AATA 3006

Supaporn (Migration) [2023] AATA 3006 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sirikamol Supaporn

REPRESENTATIVE:  Ms Angela De Silva

CASE NUMBER:  2311009

HOME AFFAIRS REFERENCE(S):          BCC2021/496373

MEMBER:Kira Raif

DATE:7 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Partner (Provisional)) visa.

Statement made on 07 September 2023 at 6:59am

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – criminal conviction, intensive correction order and community service –discretion to cancel visa – genuine and continuing relationship – false information or misleading information and non-compliance with conditions of previous visa, period as unlawful non-citizen, immigration detention and deportation – circumstances of offending – mental health and emotional and financial hardship – legal consequences of cancellation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 17 July 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Partner (Provisional)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Thailand, born in December 1981. She was granted the temporary Partner visa in November 2020. In October 2020 the applicant was convicted of an offence and she was subsequently issued with the Notice of Intention to Consider Cancellation (NOICC). The applicant provided her response to the NOICC and her visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 5 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Yu. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

5. 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(g).

6. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in reg 2.43(1)(oa) is relevant. It relevantly 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)) …

7. 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?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in October 2022 the applicant had been convicted, at the Downing Centre District Court, of Import/Export marketable quantity of border controlled drugs/plants. The applicant was sentenced to two years’ imprisonment, to be served by way of intensive correction order, and 300 hours of community service work.

9. In her responses to the NOICC and in her submission to the Tribunal of 29 August 2023 the applicant concedes that there are grounds for cancelling her visa.

10. The Tribunal finds that the applicant was a holder of a Subclass 309 visa, which is a temporary visa other than a Bridging visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of an offence against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s 116(1)(g) and reg 2.43(1)(oa).

11. 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

12. 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

13. The purpose of the applicant’s stay in Australia, as a holder of a temporary Partner visa, is to remain with her partner, who is an Australian citizen. In her evidence to the delegate and the Tribunal, the applicant states that the relationship has been in existence since 2016 and her partner relies on her emotionally and financially (as he would have to visit the applicant overseas if she is to leave Australia). In oral evidence to the Tribunal, the applicant stated that she has nobody left other than her partner and his family.

14. The applicant submits that her partner could not relocate with her to Thailand due to the language barrier and lack of employment opportunities and the presence of his family in Australia. The applicant refers to her partner’s substantial financial interests and properties in Australia, his connection to Australia and inability to speak Thai, stating that he could not relocate to Thailand if she is deported. The applicant states that if her visa is cancelled, that would lead to her separation from her partner. The Tribunal accepts that this is the case, although the Tribunal is also mindful that the applicant may be eligible to seek another visa in the future.

15. The Tribunal is prepared to accept, for the purpose of this review, that the applicant has a genuine and long standing de facto relationship with her partner. The Tribunal accepts that the applicant is fulfilling the purpose of her stay in Australia. The Tribunal is also prepared to accept that the presence of her long-term partner in Australia, the particular circumstances of the applicant and the sponsor (including their mental health issues) and the hardship that may be caused if the applicant is to leave Australia, may constitute a compelling need for the applicant to remain in Australia. This factor weighs strongly against the cancellation.

    The extent of compliance with visa conditions

16. There is no evidence of any non-compliance with visa conditions associated with the Partner visa. There is, however, evidence of non-compliance with the previously held Student visa.

17. In her submission to the Tribunal, the applicant states that she travelled to Australia in 2014 holding a Subclass 573 visa but did not commence the Bachelor course she was enrolled in and her enrolment was cancelled in March 2015. The Tribunal finds that the applicant did not comply with condition 8202 of her Student visa (which was a mandatory condition for all Student visas) by not maintaining enrolment in a registered course.

18. The applicant also admits that she was working full-time in a brothel in order to support her family in Thailand. The Tribunal finds that the applicant would have breached the work restriction in condition 8101 by engaging in full-time employment as a holder of a Student visa.

19. The applicant also concedes in her submission to the Tribunal that she remained in Australia as an unlawful non-citizen for over two years and four months. While that does not indicate a breach of a visa condition, it is relevant, in the Tribunal’s view, as an ‘other’ consideration. The circumstances discussed under this heading are relevant either to indicate the applicant’s non-compliance with visa conditions or to ‘other’ considerations but are set out here as a matter of convenience.

20. In seeking to explain the breach of visa conditions, the applicant refers in her response to the NOICC to her family’s poverty in Thailand and she claims she was responsible for providing financial support to her children and mother, particularly as her former partner has abandoned the children. (She presented to the delegate evidence of financial transfers to her family overseas.) However, the delegate notes that the applicant separated from her former partner in 2009 and she declared that she had been working in Thailand and supporting her family between 2009 and 2014. The applicant’s evidence to the delegate is that she travelled to Australia in September 2014 to gain tertiary education and work to support her family. That would suggest that she had some funds to do so. The applicant told the Tribunal that she had miscalculated the amount of money she needed, she did not realise she would have to pay rent to her cousin and that she was defrauded by her cousin. Noting the very significant cost of tertiary education in Australia for international students, the Tribunal notes that the applicant had been able to access what would have been a substantial sum to enable her to travel to Australia and undertake at least initial study (she claims to have completed an English course). Having regard to the applicant’s ability to find the funds to travel to Australia and settle in Australia and to undertake at least limited study, and recognising in particular that the applicant did have the option of leaving Australia if she could not engage in study for any reason, the Tribunal does not accept the applicant’s claim that she had no choice but to engage in full-time employment in Australia, contrary to visa conditions, to support her family in Thailand.

21. The applicant has expressed remorse for her past non-compliance with the visa conditions. She states that there is no risk of her breaching visa conditions again and she has complied with the conditions of her Partner visa. However, in her written submission to the Tribunal, the applicant also states that the breaches were committed due to external stressors beyond her control. The applicant refers to being mistreated by her cousin when working in a restaurant and states that she was forced to work full-time to pay for her living expenses and support her family in Thailand. The applicant states that as a single parent, she had the responsibility to provide for her two children and she began to work for the sake of the family’s well-being. She also states that once she met her partner, she wanted to stay with him in Australia.

22. The Tribunal finds the applicant’s evidence problematic. The applicant was holding a Student visa. The purpose of that visa was not to support her family in Thailand and her residence in Australia. If the applicant had no intention of studying, or was unable to engage in study as she undertook to do when seeking the Student visa, it was imperative upon the applicant to seek another visa and she obviously had the option of returning to Thailand if she was unable to remain in Australia as a student. For the applicant to give up her study and engage in full-time employment because she believed it was preferable to do that and justified by her circumstances shows that the applicant lacks appreciation of her obligations under the Australian laws and the need to abide by visa conditions.

23. The applicant also claims that she was scared to return to Thailand so as to not jeopardise her relationship with her present partner, who was providing for her financially. It is unclear to the Tribunal why the applicant believed that her personal interests and motivations and her desire to be with her partner were of greater importance than her obligations to comply with the Australian immigration laws, which did not permit her to remain in Australia as an unlawful non‑citizen for over two years.

24. In oral evidence to the Tribunal, the applicant suggested that she did not understand the visa requirements and did not have sufficient English to get advice. The Tribunal does not accept that explanation. In the Tribunal’s view, the applicant would have been well aware that as a holder of a Student visa, she was required to engage in studies. The applicant ultimately stated that she did understand that she would have to attend school but she said she was going through a rough time and all she could think about was to make money to support her family overseas. She also told the Tribunal that once she had met her partner, she wanted to remain in Australia. The applicant seems to believe that her desire to live in Australia to be with her partner or to work and make money justified the breach of visa conditions.

25. The applicant claims that there is little possibility of her breaching visa conditions in the future. The Tribunal accepts that this is so, particularly as there are unlikely to be visa conditions attached to a Partner visa.

26. The Tribunal finds that the applicant has not complied with the conditions of her previously held Student visa and has shown a broader disregard for the Australian laws, for example by remaining in Australia as an unlawful non-citizen for a lengthy period and by engaging in employment when she was not allowed to. The Tribunal does not consider that these actions were taken because the applicant had no choice or that the circumstances were beyond her control. The Tribunal finds that  the applicant’s past non-compliance with visa conditions weighs strongly in favour of the cancellation.

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

27. The applicant refers to her longstanding relationship with her Australian partner and states that her partner would be affected emotionally and financially if she is to leave Australia and her partner would be unable to relocate to Thailand. She refers to the significant psychological distress that would be caused to her partner and his family if her visa is cancelled. The applicant provided in her response to the NOICC her own statement, outlining her circumstances, as well as a statement from her partner and his parents.

28. The applicant states in her response to the NOICC that her previous separation from her partner resulted in relapse of her depression and she attempted suicide (the applicant presented to the delegate hospital discharge records and other medical records). The Tribunal is prepared to accept that if the applicant was to depart Australia, that may have a detrimental effect on her mental health.

29. In her submission to the Tribunal, the applicant refers to the longstanding relationship with her de facto partner and states that the sponsor relies on her for emotional support and his own well‑being. The applicant states that the sponsor nominated her as a partial beneficiary on his will. She states that her departure from Australia would cause significant psychological distress to the sponsor. The applicant refers to her relationship wi th her partner’s family in Australia and provided in her submission to the delegate statements from Mr Yu’s family. She states that her well-being is dependent on being together with the sponsor, who provided her with love and stability and had regulated her emotions. The applicant states that her last departure from Australia resulted in a mental breakdown and relapse into drug use, and if she was to be deported again, she may again relapse into drug use.

30. The applicant’s partner provided a statement to the Tribunal describing the significant emotional and financial impact that the applicant’s departure from Australia would have on him and his family. In oral evidence, Mr Yu spoke about his own mental health issues and the adverse effect the previous separation from the applicant has had on him. The Tribunal is prepared to accept that evidence.

31. The applicant provided with her submission to the Tribunal statements from her partner’s parents outlining the support the applicant has provided to them. The Tribunal is prepared to accept that evidence and accepts that the applicant’s departure from Australia (if that is the consequence of her visa being cancelled) would cause hardship not only to the applicant’s partner Mr Yu but also to his family in Australia.

32. The applicant states in her written submission to the Tribunal that she intended to bring her two daughters to Australia but the cost of including them in her Partner application was too high. The applicant told the Tribunal that her dream is to bring her daughters to Australia and her daughter wants to study nursing. The applicant explained that she did not include her daughters in her own visa application because she had no confidence that her visa would be granted and also because of financial issues. (It is not clear to the Tribunal why the cost of including dependent children as secondary applicants in the applicant’s Partner visa application would be significantly higher, given that there is no separate application fee, particularly compared to the cost of the children making separate visa applications in the future.)

33. The applicant told the Tribunal that she has spoken to her partner and they now have the funds to sponsor her daughter. The Tribunal is concerned that throughout the applicant’s visa process (which enabled her to include the children as secondary applicants) and during the applicant’s stay in Australia as a holder of the temporary visa (which enabled her partner to sponsor the children for the Subclass 445 visa), it is only now when her visa has been cancelled that the applicant claims that she had a conversation with her partner and they have found the funds to sponsor the children. In the circumstances, and given the applicant’s failure to take any steps to bring her daughters to Australia prior to the cancellation of her visa, the Tribunal does not accept that the applicant intends to bring her children to Australia in the immediate future, although she may have the intention to do that at some time in the future.

34. The applicant’s evidence to the Tribunal is that her partner has been supporting her financially in Australia, and if she was to leave Australia, he may be able and willing to continue to support her financially. Mr Yu also told the Tribunal that he would be willing to support the applicant financially if she was to leave Australia. The Tribunal is of the view that the financial hardship that the applicant claims would result from her departure from Australia would be considerably lessened if she receives financial support from her partner.

35. The applicant states that she and her partner have been trying to have a baby, and if she was to leave Australia, she would lose the chance to have the baby with her partner, causing them both distress. The Tribunal accepts that if the parties live in separate countries, there would be limited opportunity for them to have a baby together, noting, however, that the applicant will be eligible to seek other Australian visas in the future and that the sponsor may be able to travel to see the applicant if she was to leave Australia. (The Tribunal acknowledges his evidence about the high costs associated with such travel.)

36. The applicant states that if her visa is cancelled, she would need to apply for a Bridging E visa and, if not granted, may become unlawful and may be detained, which would have a significant psychological impact on her, particularly in light of her previous immigration and criminal detention and the distressing experience leading to a suicide attempt. The applicant refers to a study concerning the impacts of detention on mental health. She states that given her previous suicide attempt during detention, she would likely suffer an intense decline in her mental health again and her life would be at significant risk if she is placed in detention. The Tribunal finds such claims to be purely speculative. The applicant’s evidence to the Tribunal is that she has made an application for a Bridging E visa which remains outstanding. There is nothing to suggest that any steps have been taken to detain the applicant, even if she appears to be an unlawful non-citizen and is liable to be detained as such.

1. The applicant submits that her poor English skills would prevent her from adequately communicating with the guards for her basic needs such as contacting her loved ones or when she is having suicidal ideations. The Tribunal is mindful that the issue of the applicant’s detention is also speculative – she may or may not be granted a Bridging visa and may or may not be detained. The applicant does have the option of leaving Australia, if her visa is cancelled, and she need not remain in detention if she is placed in detention. The applicant claims to have adequate English to communicate with her ‘loved ones’ in Australia, and it is not readily apparent why she could not communicate with the guards if needed. Should the applicant be detained, it is also not readily apparent why she would need to communicate with her family through the guards (i.e. why she could not use her mobile phone or another publicly available phone). The Tribunal finds the applicant’s claims regarding her detention and its effect on her purely speculative and unpersuasive.

2. The applicant refers to lack of employment opportunities in Thailand and her past jobs in Australia, noting that her income would be much higher in Australia. The Tribunal is prepared to accept that this would be the case, noting, however, the applicant’s evidence that she had been financially reliant on the sponsor in the past, irrespective of her own income and unemployment.

3. The applicant claims that she has recently spoken to her mother, who told her that unless she is granted the Australian visa, she ‘should not show her face’ in Thailand and she should take the children away. The applicant states that her mother does not love her much and she would be like that if the applicant cannot financially support her. The Tribunal does not consider that these matters, if true, are a consequence of the cancellation of the applicant’s visa.

4. The applicant told the Tribunal that she would have nowhere to live in Thailand. Prior to coming to Australia, she was living with her mother and she claims that her children continue to live with her mother but only because she provides financial support to them. However, the applicant’s evidence is that her partner would continue to support her financially if she is to leave Australia. It is not readily apparent why the applicant could not rely on such support to find accommodation (even if her mother’s was no longer available) and to support her children. It is also not apparent why the applicant could not support herself through employment, as she had done in the past. The applicant told the Tribunal that it might be hard for her to find a job due to her age but she presented no evidence to support that contention (for example, no evidence of having sought, and been denied, employment) and the applicant told the Tribunal that she did not think about returning to Thailand because she wants to live in Australia.

5. The applicant states that her well-being is dependent on being with the sponsor. As noted elsewhere (even if that claim is accepted), the applicant does not hold a permanent visa that would enable her to be with the sponsor. There is no guarantee, and it cannot be assumed, that she would be granted one.

6. The applicant also states that if she does not hold a visa, she cannot sponsor her children to migrate to Australia. This claim is addressed elsewhere, and the Tribunal generally accepts that if the applicant does not hold a visa, her children are unlikely to be granted any family type of visa.

7. The Tribunal notes that many of the applicant’s claims are based on the assumption that she would be able to remain in Australia permanently. Thus, the applicant refers to her relationship with the sponsor, emotional hardship of separation, employment opportunities in Australia, lack of employment and housing in Thailand and inability to return to Thailand. However, the applicant does not hold, and has never held, a permanent visa. She has not been granted permission to remain in Australia permanently and cannot assume that such permission would be granted. Even if the applicant’s relationship with the sponsor is genuine, there are other visa criteria that she would have to meet before the permanent visa can be granted, most notably in this case the character criteria. In the Tribunal’s view, it cannot be assumed that the applicant will be able to remain in Australia even if the present cancellation is set aside. That is, if the applicant’s temporary visa is cancelled, the applicant may be required to leave Australia and possibly experience the consequences to which she refers. If the applicant’s visa is cancelled, she will be eligible to seek other visas, including a Partner visa in the future. However, even if the applicant’s temporary visa is not cancelled, there is no guarantee that she will not be required to leave and experience the consequences to which she refers.

8. The applicant states that if her visa is cancelled, she could not bring her children to Australia and her children will miss out on the better environment and opportunities. This claim is addressed more fully below, but generally the Tribunal is of the view that in the circumstances where the applicant does not hold a permanent visa and a right to sponsor, and in the circumstances where the children have not been granted Australian visas or even applied for such, any reference to the loss of opportunities associated with their residence in Australia is purely speculative.

9. Overall, the Tribunal accepts that due to a variety of factors, considerable hardship would be caused to the applicant, her partner, his family and possibly others if the applicant’s visa is cancelled. This consideration weighs strongly against the cancellation.

   Circumstances in which ground of cancellation arose

10. The ground for cancellation arose because the applicant had been convicted of an offence.

11. In her response to the NOICC, the applicant refers to the remarks of Judge Walmsley SC who noted that the applicant’s upbringing and deprivation led to her drug use and reduced ability to make appropriate judgements and decisions, including whether or not to offend. The applicant refers to her statement provided in the criminal proceedings outlining her upbringing. The Tribunal acknowledges that evidence, although the Tribunal is also of the view that the nature of the sentence reflects the serious nature of the offending. The Tribunal does not accept the applicant’s classification of importation of a marketable quantity of drugs as ‘a relatively small amount’. The Tribunal is also prepared to accept – as did the sentencing judge – that the applicant intended to use the proceeds of the sale to support her family overseas, but it is not clear to the Tribunal why the applicant chose to support her family by breaching the Australian laws, rather than through lawful means.

12. The applicant submits that her decision to import the drugs was due to financial stressors of her family and was largely outside her control. As noted above, the Tribunal is of the view that the applicant had the option of earning funds through lawful means, as she had done during her previous residence in Australia. The Tribunal does not accept the applicant’s submission that her decision to engage in criminal conduct was outside her control, even when taking into account the applicant’s claim that her decision making capacity was reduced due to her circumstances.

13. The applicant refers to her past trauma, leading to drug use and the fear of COVID‑19 quarantine, and she claims the offending was an isolated incident driven by psychological dependence on drugs, past traumatic experiences and financial desperation, and she has cooperated with the police upon arrest.

14. In her written submission to the Tribunal of 29 August 2023, the applicant repeats the evidence that was provided in response to the NOICC. The applicant states that she acknowledges the seriousness of the offence but claims that there were extenuating factors. The applicant refers to the life history of trauma and external factors placing her in a vulnerable position where she was under intense pressure to commit the offence. The applicant refers to the sentencing remarks of Judge Walmsley SC who found that the applicant’s upbringing and deprivation led to her drug use and reduced ability to make the appropriate judgement call. The applicant outlined her background, travel to Australia and her employment history. She refers to the positive impact from her relationship with her partner. She also claims that she decided to import drugs, for personal use, as she was fearful of having mental distress during the quarantine period upon her entry to Australia.

15. The Tribunal is prepared to accept that the applicant’s background and general circumstances may have affected her ability to make appropriate decisions and acknowledges the applicant’s submission that her culpability when offending had been reduced. This appears to have been accepted by the sentencing judge, although, as noted above, the Tribunal is also of the view that the significant sentence imposed reflects the seriousness of the offence and the applicant’s culpability.

16. The applicant states that the offence was an isolated incident that was driven by her dependence on methamphetamine, past traumatic experiences and financial desperation to support her family in Thailand. The applicant states that her daily drug use meant that she was incapable of making rational decisions and her use of drugs was caused by the external trauma and desire to numb the pain of past abuse. The applicant refers to the financial stressors that were outside of her control.

17. It is not in dispute that the applicant had been convicted of an offence. The Tribunal finds that the offence was of a serious nature, given the potential harm that drugs could bring to others. While the sentencing judge recognised the applicant’s reduced culpability, the fact that the applicant was sentenced to two years imprisonment (to be served as a community corrections order) indicates that the offence was considered to be a serious one by the court. In the Tribunal’s view, and while taking into account the applicant’s explanation about the circumstances leading to the offending, the nature and the seriousness of the offence are such that this consideration weighs in favour of the cancellation.

    Past and present behaviour of the visa holder towards the Department

18. The applicant states that she was fully cooperative with the Department in the past and with the police. The delegate noted that the applicant displayed adverse behaviour towards the Department during her previous visit to Australia when she failed to comply with visa conditions and remined in Australia as an unlawful non-citizen for over two years before being voluntarily removed in August 2018. However, in the Tribunal’s view, these factors are more relevant in assessing the applicant’s compliance with visa conditions, rather than her behaviour towards the Department. The Tribunal is mindful that the applicant had provided her response to the NOICC and had engaged with the Department in relation to the cancellation process.

19. The delegate also notes that when applying for the Student visa, the applicant claimed she had owned a construction business since 2007. The applicant told the Tribunal in oral evidence that the business was owned by her brother and she did small jobs for her brother and sometimes she earned funds and sometimes she did not. She said that she also had other sources of funds. When asked if she gave false information in her Student visa application about business ownership, the applicant changed her evidence and said that at the time she was the one who owned the business and did odd jobs. In her post-hearing written submission to the Tribunal the applicant explains that the business was technically in her name and she owned the bank account where its income was deposited but the business and the funds from the business always belonged to her brother who paid her at his discretion. She cites this as another form of abuse by her brother.

20. The Tribunal found the applicant’s evidence unsatisfactory. The applicant claims that she genuinely held the funds shown in her Student visa application, but she also claims that she could not access the funds from the business and that she had no actual ownership of the business as it was hers on name only. If the applicant’s present submission are true, then it would seem that she did provide false or misleading information in her Student visa application when claiming that she had income from the business which could support her residence in Australia.

21. The primary decision record also notes that the applicant failed to declare her children in the Student visa application, despite a requirement to detail both migrating and non‑migrating family members. The delegate noted that the applicant would have provided false or misleading information in her Student visa application, contrary to her assertion in response to the NOICC that she had never provided false or misleading information to the Department. The applicant explains in her evidence to the delegate and the Tribunal that she received assistance with the application and was not aware of the content of the application and that false or misleading information was provided. Even if that is the case, the Tribunal is of the view that the content of any visa application is the responsibility of the applicant (and that may include checking the content of the application form). The Tribunal does not consider that the fact that the applicant received assistance removes any responsibility from her and does not justify provision of false or misleading information.

22. The delegate also noted in the primary decision that in October 2021 the applicant provided a statement in which she claimed that she did not know how the drugs were found in her luggage and stating that she was innocent. The applicant explains in her submission of 29 August 2023 that she was at the time scared of being separated from her partner and of being sent to jail and she accepts that her statement was misleading, and in her oral evidence to the Tribunal the applicant also admitted that the statement was incorrect. Again, the Tribunal has formed the view that the applicant placed her personal needs and preferences above her obligations under the Australian law.

23. The Tribunal is of the view that the applicant has been persistently untruthful in her past dealings with the Department. She provided false or misleading information in her Student visa application and in her statement in October 2021. The Tribunal finds that the nature of the applicant’s past dealings with the Department and her past lack of candour weigh heavily in favour of the cancellation.

    Whether there would be consequential cancellations under s 140

24. There are no persons whose visas would be subject to consequential cancellation.

    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, how long it would be for, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. If the applicant’s visa is cancelled and if she does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although she would be subject to an exclusion period in relation to some visas (imposed by PIC 4013 and/or PIC 4014) and would have limited opportunities to make visa applications onshore due to the operation of s 48. The applicant may also be subject to an exclusion period if she was to make an application for certain visas offshore (noting that the exclusion period does not apply in relation to all visa applications and would not apply if the applicant was to apply for another Partner visa in the future). If the temporary Partner visa is cancelled, the applicant may not be eligible for the permanent Partner visa. She will not be able to act as a sponsor for her children.

26. As noted above, the applicant states in her submissions to the delegate that if her visa is cancelled and if she is not granted another visa, she may become an unlawful non‑citizen and would be subject to detention, which would have an adverse effect on her mental health. The Tribunal acknowledges that may be the case, while noting the applicant’s evidence that her application for the Bridging visa remains unresolved. There is no suggestion that the applicant would be subject to indefinite detention.

27. The applicant states that she would be subject to the exclusion period and the PIC 4013 and 4014, preventing her return to Australia for three years. The applicant claims that the exclusion period would have a negative impact on her and her family. The Tribunal accepts that this would be the case, although the Tribunal is mindful that the exclusion period does not apply with respect to all visas (for example, the applicant would be eligible to make an application for another Partner visa in the future prior to the expiration of the three‑year exclusion period and she told the Tribunal that her partner would sponsor her for a visa).

28. If the applicant is to seek another visa, she would be required to meet the character requirements. However, that is the consequence of her criminal offending, rather than of the cancellation of her visa.

    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

29. In her various submissions, the applicant refers to being unable to support herself while in Thailand, having no place to live and having difficulties finding a job. She also refers to her problematic relationship with her mother. As noted above, the Tribunal does not accept these claims, given that they are completely unsupported (in particular the applicant’s claim that she could not support herself or that she could not find a job) and contrary to the evidence that the applicant’s partner would continue to provide financial support to the applicant if she was to leave Australia. The Tribunal does not consider that these matters give rise to Australia’s non-refoulement obligations. The Tribunal has formed the view that the non-refoulement obligations do not arise in this case.

30. In her responses to the NOICC, the applicant states that if her visa is cancelled, she will not be able to sponsor her children to migrate to Australia, which was her intention. She states that her children will have a better life and a better education and a stable household in Australia. The Tribunal is prepared to accept that the applicant may wish to sponsor her children to Australia (noting that one of the children is no longer a minor). However, she has not done so yet and her children have not been granted the Australian visas. The applicant herself has not been granted a permanent visa and cannot act as a sponsor for her children until her visa is granted. The applicant’s assumptions that she will be able to sponsor her children in the future and that her children will be able to migrate to Australia and have better opportunities in this country are purely speculative and dependent on several factors which may or may not occur. In these circumstances, the Tribunal does not consider that the best interests of the applicant’s minor child would be adversely affected by the cancellation of her visa.

31. The applicant also refers to her work as a nanny in Australia. There is no suggestion that the applicant has ever developed or maintains any parental responsibilities in relation to the children she worked with. The applicant has not been employed as a nanny for these children for a number of months and she told the Tribunal that she has not had any contact with the children since she stopped working. She stated that she had stopped working because her pay was not sufficient (that is, she had voluntarily removed herself from these children). There is no evidence to indicate that the children’s interests have been affected in any way as a result of the applicant not being present in their lives. On the limited evidence before it, the Tribunal does not accept that the best interests of these children would in any way be affected by the cancellation of the applicant’s visa.

1. As for the principles of family unity, the Tribunal accepts that the applicant’s partner and his family reside in Australia and, as noted above, the Tribunal is prepared to accept that there are strong and ongoing relationships between them. The Tribunal is mindful that if the applicant’s visa is cancelled, she would be eligible to seek another visa in the future. The Tribunal also notes that the grant of the permanent visa is not guaranteed (notably, the applicant would need to pass the character test).

2. The Tribunal finds that this consideration is neutral.

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

3. The visa in question is a temporary visa but leading to the grant of a permanent visa. To the extent relevant to this or another visa consideration, the Tribunal acknowledges that the applicant’s partner resides in Australia and she claims to have a close relationship with his family. The applicant has been living in Australia for a number of years and had previously engaged in study and employment. The Tribunal is prepared to accept that the applicant has formed strong family, social and other ties in Australia. This consideration weighs against the cancellation.

   Any other relevant matters

4. The applicant refers to her past employment as a nanny and states that she has made contributions to Australia through her employment. She provided in her response to the NOICC a statement from her employer. The Tribunal is prepared to accept that this may have been the case, although the Tribunal is also of the view that the applicant had caused significant detriment to the community through the importation of drugs. In her written submission, the applicant refers to her plan to work in the childcare industry, citing a shortage of staff, and she states that it is in Australia’s interest not to cancel her visa. Again, the Tribunal considers that claim questionable, as the applicant has not yet shown her capacity to work in that industry (for example, there is no job offer), has not demonstrated her ability to find employment in that industry and to contribute through such employment. It is insufficient to state that there is a shortage of staff in a particular industry which the applicant intends to fulfil. Further, the applicant told the Tribunal that she plans to open a cleaning business if she is not able to work in the childcare industry or she could work as a private nanny. The Tribunal is not satisfied that the applicant genuinely intends to or that she will work in the childcare industry. The Tribunal does not consider that Australia’s interests would be adversely affected by the decision relating to the applicant’s visa.

5. The applicant states that when she was previously deported in 2018, this had caused her mental breakdown contributing to her relapse into drugs, and she states that if she was to be deported again, this could again lead to depression and drug use. The applicant refers to her mental health conditions and states that she would be placed at significant risk if placed in a stressful environment or isolation. The Tribunal considers that claim to be speculative, and in any case, the Tribunal does not consider that the potential for the applicant to relapse into drug use or develop depression upon departure from Australia (noting that she does not have a permanent visa allowing her to remain in Australia) is a strong consideration in favour of setting aside the cancellation.

6. The applicant claims that she has been diagnosed with borderline personality disorder, has a history of depression and a suicide attempt, and there is a significant risk she would commit suicide if forced to leave Australia (and she also claims she would relapse into drug use if removed from Australia). With respect, the Tribunal finds these submissions highly speculative and, as noted above, the cancellation of the visa is not the only factor that may result in the applicant having to leave Australia, given the fact that she is not a holder of a permanent visa.

7. The Tribunal has considered the psychological report by Anita Duffy who refers to the applicant having persistent depressive disorder and stimulant use disorder in remission. The Tribunal accepts the professional opinion expressed in that report.

8. The applicant refers to the low likelihood of her reoffending. She claims that the factors that led to the offending (financial desperation and mental illness during the COVID‑19 isolation and impaired decision making) are no longer present and she is unlikely to commit offences again. The applicant states that she no longer uses drugs, has no connection to the industry and has the support of the sponsor. However, the applicant also submits that if she is to be removed from Australia, she will likely return to drug use. The applicant seems to be suggesting, on one hand, that she is no longer addicted to drug use (which was a key cause for offending) and is capable of dealing with the issues that led to drug use, but on the other hand, she also claims that if faced with adversity (such as removal from Australia), she would relapse into drug use. It is unclear to the Tribunal why the applicant would only relapse into drug use (increasing the prospect of reoffending) when faced with adversity in Thailand but that would not occur if the applicant is faced with adversity in Australia. To the extent that the applicant claims she would not return to the drug use due to the support of the sponsor, the Tribunal is of the view that emotional support can be provided when parties do not reside in the same country and such support can continue whether or not the applicant’s visa is cancelled.

9. The Tribunal has formed the view that some of the applicant’s claims are self‑serving, speculative and unpersuasive.

10. The applicant provided statements from her two daughters, who seek to explain the circumstances of her offending. The applicant states that she has shown remorse for her conduct, was given a relatively low sentence and complied with the community corrections order. The Tribunal accepts that it is the case, although the applicant’s suggestion that she would relapse into drug use if returned to Thailand detracts significantly from the applicant’s claim that she is now better able to cope with stressors and will not reoffend.

11. The applicant refers to her contribution to the community, including through her work as a nanny, and refers to the statements from her employer who expressed the view that the removal of the applicant from Australia may affect the childcare industry and the family she worked for. This claim has been addressed above. Given the fact that the applicant has not been employed for some time (with no apparent effect on the childcare industry), and her stated intention to find other forms of employment in the future, the Tribunal does not consider that if the applicant was not in Australia, that would adversely affect the childcare industry.

12. The applicant refers to the high risk of suicide, given her diagnosis of borderline personality disorder, history of depression and previous suicide attempt. As noted above, the Tribunal finds such claims to be speculative. The applicant refers to the effect of the visa cancellation upon her sponsor, and in oral evidence Mr Yu spoke about the hardship he had experienced, his own struggles with mental health, and the emotional and financial hardship that would result from his separation from the applicant.

13. Mr Yu told the Tribunal that if the visa is cancelled and if the applicant is to leave Australia, it would have a significant adverse impact on him. He refers to the financial hardship, having to make repayments to his parents and mortgage repayments. He refers to having a hard time and the emotional hardship that he has experienced in the past and would experience if he is to be separated from the applicant. Many of these claims have been addressed above. Mr Yu refers to his past mental health issues and the difficulties of obtaining another visa. He states that his mental health had deteriorated in recent years and he states that nobody takes care of him like his partner does. She also supports his parents and she is the daughter‑in‑law for them. Mr Yu states that the applicant has been his support and he does not think he would have the strength to go on without her.

14. These claims have been addressed above and the Tribunal generally accepts that hardship would be caused to the sponsor (and others) if the applicant’s visa remains cancelled.

15. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had committed an offence and held a temporary visa. The Tribunal finds that there are grounds for cancelling the visa.

16. In considering the applicant’s circumstances, the Tribunal accepts that the cancellation of her visa may cause significant hardship to the applicant, her partner, the applicant’s family in Thailand and Mr Yu’s family in Australia. The Tribunal accepts that it may adversely affect the applicant’s mental health and emotional well-being if she was to be detained and required to leave Australia and be separated from the sponsor and these are possible consequences of the visa being cancelled. The Tribunal is also prepared to accept that Mr Yu’s health and well-being may be affected by the separation from the applicant. The Tribunal acknowledges the claims of financial hardship, although the Tribunal notes the applicant’s and Mr Yu’s evidence that financial support by Mr Yu will continue. The Tribunal accepts that if the visa is cancelled, the applicant will lose the opportunity to sponsor her children (unless she is granted another visa in the future) and may be separated from her partner (also unless she is granted another visa in the future). The Tribunal accepts that if the applicant was to depart Australia, this may have an adverse effect on the sponsor’s health and well-being. These are significant considerations in favour of the setting aside of the cancellation.

17. The Tribunal has formed the view that international obligations would not be breached as a result of the cancellation. The Tribunal acknowledges that there would be significant legal consequences to the cancellation, in particular limiting the applicant’s options of remaining in Australia or returning to Australia in the near future. The Tribunal accepts that other forms of hardship may be caused if the applicant is to be separated from the sponsor and leave Australia, including the delay in starting a family, the adverse effect on the applicant’s career, and financial implications. All of these are strong reasons for setting aside the cancellation.

18. However, there are other considerations that weigh strongly in favour of the cancellation.

19. The Tribunal has considerable concern about the applicant’s apparent lack of appreciation of her own obligations in relation to migration compliance. The applicant blamed her desire to live in Australia and support her family as reasons for not complying with the conditions of her Student visa. She blamed a person assisting her for providing false or misleading information in the Student application by not mentioning her children. She blames being scared of removal as a reason for providing false information about the drugs in her luggage. Despite the applicant’s statements that she accepts responsibility for her actions and is remorseful, the applicant appears to have little appreciation of the need to comply with migration laws.

20. The Tribunal places significant weight on the applicant’s past dealings with Immigration, noting that she had not been truthful in many of her dealings with the Department, particularly in relation to her first visit to Australia. The Tribunal places significant weight on the applicant’s past non-compliance with visa conditions and broader non-compliance with the immigration laws (such as overstay as an unlawful non-citizen simply because she preferred to live in Australia with her partner). The Tribunal places significant weight on the circumstances in which the non-compliance occurred, noting that importation of drugs is a serious offence which has the potential of causing significant harm to the community. While some of the drugs were for personal use, the applicant concedes that some of the drugs were to be sold and were imported for financial gain (albeit to support her family).

21. Having considered all the circumstances of the case, and while acknowledging the strong factors that favour the setting aside of the cancellation, the Tribunal has decided to give greatest weight to the circumstances in which the non-compliance occurred (being the commission of a serious offence), the past non-compliance with visa conditions and the applicant’s untruthful past dealings with Immigration. All these factors weigh strongly in favour of the cancellation and, in the Tribunal’s view, outweigh other factors.

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

    DECISION

23. The Tribunal affirms the decision to cancel the applicant’s Subclass 309 (Partner (Provisional)) visa.

    Kira Raif
    Senior Member