tran (Migration)

[2018] AATA 1364

tran (Migration) [2018] AATA 1364 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Trong Tran

CASE NUMBER:  1729116

DIBP REFERENCE(S):  BCC2017/2636143

MEMBER:John Cipolla

DATE:4 April 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 04 April 2018 at 4:12pm

CATCHWORDS
Migration – Cancellation – WA - Bridging A (Class WA) visa – Subclass 010 – Completed a range of studies in Australia – Hoping to continue studies – Pleaded guilty to drug offences – Received a good behaviour bond and no conviction – Applicant failed to attend Tribunal hearing – Concerns applicant may go underground if his student visa application is refused

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, r 2.43

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 November 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancellation of the applicants visa existed under regulation 2.43(1)(oa) of the Migration Regulations on the basis that the applicant had been convicted of an offence in the state of New South Wales on 27 July 2015. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was invited to appear before the Tribunal on 4 April 2018.  The Tribunal notified the applicant of the time and date of the scheduled hearing in an e-mail (the mode requested for service by the applicant) on 16 March 2018.  The applicant failed to attend the scheduled hearing and no reason for the applicant’s non-attendance was provided to the Tribunal and the Tribunal is accordingly able to proceed to decision.

4. 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

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). 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?

6. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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.

7. The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Bridging A visa on 29 August 2017.  The applicant held a Bridging A visa which was granted to him on 11 March 2016 on the basis of an application for a Subclass 573 Student visa that he had lodged with the Department.  The NOICC indicated that the Department of Immigration had been advised that the applicant had been convicted of supplying a prohibited drug (commercial quantity) in the District Court of New South Wales on 27 July 2017 for which he was placed on a good behaviour bond for 2 years with no conviction recorded.  The Departmental delegate invited the applicant to provide any reasons as to why his visa should not be cancelled.

8. The applicant provided a statutory declaration to the Department which he had provided to the District Court prior to his sentencing which is dated 26 July 2017.  The Tribunal has had regard to the statutory declaration.  In this document the applicant states that prior to his arrest for the supply of a prohibited drug he had never had any problems with the police either in Australia or in Vietnam. The applicant claims that he was minding around 25 ecstasy pills for a friend   . The applicant claims that he knew that the pills were ecstasy and that they were illegal. The applicant claims that he was truthful with the police and was guilty of having illegal drugs in his possession. The applicant also acknowledged that he was guilty of the supply of illegal drugs. The applicant made reference to his immigration history in Australia noting that he travelled to Australia in 2008 when he was 17 years old and that he had undertaken a range of studies in Australia. The applicant stated from 2013 he had been studying for a Bachelor of Nursing degree at the University of Technology in Sydney however he claims that his study was interrupted when his father was diagnosed with cancer in 2014. The applicant took a year off from his study to return to Vietnam to spend time with his father who passed away in November 2015 at aged 61. The applicant returned to Australia in early 2016 and claims that he was sad and depressed. The applicant stated that he started attending nightclubs on the weekends and started taking ecstasy when he went out to nightclubs. The applicant claims that he met the person Leo, who asked him to hold the drugs for him whilst he was at a nightclub. The applicant stated that because of his arrest and court proceedings his application for a student visa that was currently pending would most likely not be approved by the Department because of his conviction for a criminal offence. The applicant claims that he was remorseful for his actions and the applicant apologised to the court, the police, and the community who had been affected by illegal drugs.

9. The applicant also provided a submission to the Department dated 10 September 2017 stating that the District Court judge found that his involvement in the offence was very low and for this reason he was put on a good behaviour bond and no conviction was recorded. The applicant claimed that his family would be deeply affected if his student visa was cancelled and that his late father who was a Medical Practitioner hoped prior to his death that his son would obtain a qualification in nursing. The applicant claimed that the District Court judge that sentenced him gave him a second chance to change his behaviour and that he hoped the Department of Immigration would give him a similar opportunity. A copy of the good behaviour bond was provided with the submission which indicates that the applicant was found guilty but without proceeding to conviction and he was directed to enter into a good behaviour bond for 2 years commencing on 27 July 2017. The applicant provided a copy of a presentence report prepared for the District Court dated 25 July 2017. The presentencing report noted that the applicant, through the support of his partner in Australia, had remained drug-free since the commission of the offences and was hopeful to continue his studies in Australia.

10. On 15 November 2017 the Departmental delegate determined that the ground for cancellation of the applicant’s visa existed and after considering the relevant discretionary considerations proceeded to cancel the applicant’s visa.  On 21 November 2017 the applicant lodged an application to the Tribunal seeking a review of the Departmental decision. Annexed to the review application was a copy of the Departmental decision.

11. 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?

12. A visa may be cancelled under s.116(1)(g) if the Minister or the Tribunal 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.

13. The Tribunal is satisfied that the applicant was the holder of a subclass 010 Bridging A visa, which is a temporary visa. The Tribunal is also satisfied that the applicant has been convicted of offences against the law of NSW on 27 July 2017. 

14. The Tribunal is therefore satisfied that r.2.43(1)(oa) is met and hence there is a prescribed ground for cancelling the applicant’s visa under s.116(1)(g).

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

16. In this particular case, the Tribunal has had regard to the relevant policy considerations as follows.

17. The purpose of the visa holder's travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.

    ·The applicant originally came to Australia in 2008 as the holder of a student visa.  The applicant in the affidavit that he provided to the District Court and the Department in response to the NOICC advised that after his arrival he studied a foundation programme for a course at the University of Western Sydney.  He then completed a Diploma of Commerce at Curtin International College followed by an Advanced Diploma of Accounting in September 2012.  The applicant states that he commenced a Bachelor of Nursing degree at the University of Technology Sydney in 2013, however his study was interrupted when his father was diagnosed with cancer and the applicant at this point decided to take a year away from his studies so he could return to Vietnam and spend time with his father.  The applicant had applied for a further student visa in March 2016 and he was awaiting the outcome of this application when he was charged and convicted in 2017. He claims a compelling need to remain here in order to complete his studies in nursing something he promised his late father he would do.  The applicant however, acknowledges in his affidavit of 26 July 2017 that he had been advised that as a result of the criminal conviction he would not be granted a further student visa.

18. The extent of compliance with visa conditions: delegates should assess whether the visa holder has otherwise complied with visa conditions now and on previous occasions.

    ·The visa in question is a Subclass 010 visa. There is no suggestion by the Department that there are breaches of conditions of this visa

19. The degree of hardship that may be caused to the visa holder and any family members: delegates should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision.

    ·The applicant has claimed hardship for himself if he is unable to complete his nursing studies but he also acknowledges in his affidavit of 26 July 2017 that he is unlikely to complete his studies as the Department have advised him that a further student visa is unlikely to be granted as a result of the criminal conviction.

    ·The applicant’s girlfriend provided a statutory declaration to the District Court prior to his sentencing. That document dated 26 July 2017 indicates that the applicant’s girlfriend was from Vietnam. She advised that she had been with the applicant for about 18 months. She makes no reference to whether she had any rights of residency in Australia. She noted that as a result of the applicant’s father passing away as a result of cancer that the applicant had become depressed and had dabbled with illicit drugs prior to being arrested for the offence for which he was convicted. The submission notes that the applicant was determined to complete his nursing studies to fulfil the wishes of his late father.

    ·The Tribunal has not been provided with any updated evidence of review. The applicant failed to attend the scheduled hearing on 4 April 2018. There is no evidence before the Tribunal to indicate that the applicant is in an ongoing relationship with the woman who provided an affidavit in support of his criminal proceedings on 26 July 2017.  As noted the Tribunal has no information or evidence pertaining to this person’s residency status in Australia.

20. The circumstances in which the ground for cancellation arose: delegates should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. If cancellation is being considered because of a relationship breakdown, delegates should consider whether the relationship has broken down as a result of family violence. As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the control of the visa holder.

    ·The evidence indicates that the applicant attended a casino in Sydney on 8 July 2016. At 12:40am on 9 July 2016 police observed the applicant entering the retail area of the Star Casino located in Pyrmont. Upon the applicant observing uniformed police officers in attendance at the casino the applicant turned away from the casino entry heading away from the casino. Police pursued the applicant and approached the applicant. The applicant was searched because police suspected that he was in possession of prohibited drugs. The police located a large plastic resealable bag containing 40 red and white coloured capsules. The police noted that these were concealed in a further 3 plastic bags. One containing 10 capsules, a further bag containing 5 capsules and 15 capsules loose within the larger bag.  The police asked the applicant what were in the capsules and he advised “a little bit of MDMA”. The applicant was asked how many capsules were in the bag and he advised 25 and further advised that he was holding them for a friend. The drugs were analysed and found to contain 3 grams of MDMA with a purity of 58%.

    ·In a presentencing affidavit provided to the District Court the applicant stated that he had never had any problems with the police prior to the offence and had a clean criminal record in Vietnam prior to coming to Australia. The applicant claimed that his father passed away in November 2015 and that as a consequence the applicant suffered with depression and began to use illicit drugs.

    ·The Tribunal notes that the applicant did not appear to have any criminal antecedents prior to the drug possession and supply conviction. However in the view of the Tribunal this incident was indicative of a significant lack of judgement on behalf of the applicant.

    ·The Tribunal notes that the applicant was charged and convicted of supplying a prohibited drug and that the amount of the MDMA in the applicant’s possession at the time of his arrest was an indictable quantity, and the severity of this is reflected in the fact that the applicant’s case was dealt with by the District Court.

    ·In conclusion having regard to all the evidence before it, the Tribunal finds that the applicant’s involvement in drug possession and supply was a significant lapse in judgement. The Tribunal finds it puzzling that the applicant failed to attend the merits review hearing scheduled for 4 April 2018. The Tribunal finds that this suggests that the applicant may go underground if his student visa application is refused and this may be compounded if he continues in a relationship with the golfer and the provided affidavit evidence on his behalf to the District Court in July 2017.

21. The visa holder's past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).

    ·Based on the evidence before it the applicant has been co-operative with the Department

22. Whether there are persons in Australia whose visas would, or may, be cancelled under s140.

    ·There are no such persons

23. Whether there are mandatory legal consequences to a cancellation decision

    ·The applicant has not claimed and there is no evidence before the Tribunal that the applicant cannot return to Vietnam for reasons of safety or possible persecution, which should prevent refoulement

    ·Prior to visa cancellation the applicant lodged a student visa application which based on the evidence before the Tribunal does not appear to have been finalised.

    ·Upon affirming the cancellation of his Bridging A visa the applicant would be able to seek a Subclass 050 Bridging visa, valid until his student visa application is finally determined.

24. Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

    ·Based on the evidence before the Tribunal there are no children affected in the current case. 

    ·Cancellation would not lead to removal in breach of Australia's non-refoulement obligations, as noted above

    ·No possible breaches have been raised by the applicant

25. Any other relevant matters

    ·As noted, the applicant’s student visa application based on the evidence before the Tribunal has not yet been determined.  The applicant in his affidavit evidence for the purposes of his criminal proceedings and in response to the NOICC notes himself that this application is unlikely to succeed based on advice from the Department as a result of his criminal conviction.

    Overall consideration

26. The applicant arrived in Australia in 2008 as a 17 year old holding a Student visa.

27. The Tribunal notes that the applicant was charged with an indictable criminal offence of possession and supply of a prohibited drug, namely MDMA. The applicant pleaded guilty to this criminal offence before the District Court on 27 July 2017 and he was sentenced to a two-year good behaviour bond. The Tribunal notes that no conviction was recorded. The Tribunal notes that the regime regulating illicit drug use and supply in Australia is such that there is zero tolerance and there are harsh penalties in place for contravention of the law in this regard.  The applicant has been in Australia for an extended period as a temporary visa holder and whilst being afforded the privilege of studying in Australia made a decision as an adult to contravene these laws in New South Wales and this is indicative of a wilful disregard for the laws that apply in this country.

28. The Tribunal accepts that there would be a degree of hardship if the visa was cancelled and the applicant may potentially have to return to Vietnam, but the evidence before it does not lead the Tribunal to being satisfied that this would be severe enough to warrant not cancelling the visa.

29. The applicant’s student visa application, based on the evidence before the Tribunal is yet to be determined and in these circumstances the applicant will be able to make an application for a Subclass 050 Bridging visa until such time.

30. In light of all the circumstances and consideration of the relevant discretionary considerations the Tribunal finds that the visa should be cancelled.

    DECISION

31. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    John Cipolla
    Senior Member