Vo (Migration)

[2020] AATA 1386

Vo (Migration) [2020] AATA 1386 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nguyen Dang Khoa Vo

CASE NUMBER:  1926757

HOME AFFAIRS REFERENCE(S):          BCC2019/4195152

MEMBER:David McCulloch

DATE:15 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 15 April 2020 at 10:07am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to safety of Australian community – criminal charges and conviction – good behaviour bond and community service – discretion to cancel visa – no prior criminal history or visa non-compliance – cooperation, remorse and early plea of guilty – abidance by conditions imposed – study and work history and future plans – parents’ health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(e)

CASES

Gong v MIBP [2016] FCCA 561

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Vietnam. The visa that has been cancelled was granted on 29 March 2018 and valid until 15 March 2020.

3. The delegate wrote to the applicant on 9 September 2019 providing a Notice of an Intention to Consider Cancellation of the visa (NOICC) and requesting a response from the applicant. A response was provided by the applicant on 16 September 2019.

4. The delegate cancelled the visa under s.116(e) on the basis that the visa holder may be, or would or might be, a risk to the health, safety or good order of the Australian community or segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The Tribunal exercised its discretion to hold the hearing by telephone on 3 April 2020. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing by telephone.

7. 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

8. 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(e). 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?

9. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

10. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

11. There is information before the Tribunal which suggests that the applicant is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

12. The Tribunal put the following information to the applicant in the hearing pursuant to the procedural requirements of s.359AA of the Act.

13. Put to the applicant was that, according to information provided by the Australian Federal Police to the Department on 23 August 2019, the applicant was charged with one count of reckless threat to kill a person, one count of stalking, one count of use carriage service to menace/harass/offend, and one count of threaten to capture or distribute intimate images.

14. Put to the applicant was information provided to the Tribunal by the Office of the Director of Public Prosecutions (ACT) on 3 February 2020 indicating that the applicant was convicted of the charge of threatening to capture or distribute intimate images, with the other charges being withdrawn. It was advised that the applicant was sentenced to a 12 month good behaviour order with 75 hours of community service.

15. The Tribunal put to the applicant the following alleged facts leading to the charges according to the Australian Federal Police Fact Sheet.

16. The victim (a female) had been in a relationship with the applicant for approximately 18 months prior to its breakdown. The victim attended the Belconnen Police Station on 20 August 2019 to report that the applicant had threatened to post her intimate images, and had been blackmailing her and attempting to force her back into the relationship.

17. The victim stated that the applicant had picked fights with her, yelled, swore, and called her offensive names. The victim stated that she wanted to end the relationship and was scared of the applicant, and stated that the applicant had threatened to post all of her images on social media and send it to her mother if she broke up with him.

18. The victim stated that, on 15 August 2019, the applicant had posted an image on Zalo and sent the victim a screenshot, and that the applicant told her that he had the victim’s old Facebook account and would post images and let the victim’s family see it, and said he would slowly kill her. The victim had met the applicant for lunch and he had asked her to renew the relationship, and the victim declined. The applicant then posted on Facebook “check my Zalo tonight, I have a link.” The applicant made other comments and posted images of the victim’s social media accounts stating he had images of her and to message the applicant for a link.

19. The victim asked the applicant not to release the images and stated that she was worried about the impact these images would have on her family and community. The police arranged to meet the applicant and subsequently arrested him. At interview, the applicant admitted to having threatened to post intimate images of the victim on social media, that he had posted a topless image of the victim on social media, and had removed the image when she asked him to take it down.

20. The Tribunal put to the applicant in the hearing that all of this information was relevant because the fact of the applicant being found guilty of the charge of threatening to capture or distribute intimate images in the context of the facts alleged, including the admission by the applicant that he had threatened to post intimate images of the victim on social media and that he had posted a topless image of the victim on social media, but removed it when she asked him to take it down, could readily cause the Tribunal to conclude that the applicant would or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

21. The Tribunal put to the applicant that it seems readily apparent from the conviction and the alleged facts that the applicant at least temporarily posted an intimate image of the victim without her consent and that the applicant threatened to post intimate images blackmailing the applicant that he would do so if she did not reinstate the relationship with the applicant. The temporary posting of intimate images, together with the threats to post images and the apparent blackmailing of the applicant, would be behaviour which would suggest that there may or might be a risk to the health, good order and safety of at least a segment of the Australian community, namely the victim or other potential victims. The fact of the applicant being sentenced to a good behaviour bond of 12 months with 75 hours of community service would indicate an offence more than a minor level of seriousness. The magistrate in her sentencing remarks indicated the offence was in the mid-range of seriousness. The consequence of relying on the information would be to conclude that the ground of cancellation is made out.

22. The Tribunal addresses further below the applicant’s response to these issues in the hearing. The Tribunal sets out here the applicant’s response to the NOICC and submissions and supporting documents provided to the Tribunal prior to the hearing.

23. The response to the NOICC indicates that the charges in relation to a threat to kill had been withdrawn. It is submitted that the other charges relating to threats to upload intimate images of the victim on a social media site without her consent do not involve any element of physical harm, injury or violence towards the applicant’s former partner. They do not involve injury, danger or risk to the safety of an individual. The applicant indicates that he does not believe he is a risk to the health or safety of the victim. He has ceased all contact with her in accordance with his bail conditions. The applicant will fully comply with these conditions. The applicant indicates that he is not the subject of any enforceable Apprehended Violence Order in relation to the matter, which supports his claims that he is not a real risk to the health or safety of his former partner.

24. The applicant indicates that he recognises the gravity of the remaining charges laid against him. He indicates that they are at a lower level of criminality than the primary charge of a threat to kill. It is submitted that if the Tribunal were to find that the ground of cancellation is made out it should consider the limited level of the risk that the applicant poses when exercising the Tribunal’s discretion and balance it appropriately with factors against the cancellation of his visa.

25. The applicant’s representative provided submissions to the Tribunal on 30 March 2020, prior to the hearing. These contain submissions which are relevant both to whether the ground of cancellation is made out and issues relating to the exercise of the Tribunal’s discretion as to whether the visa should be cancelled.

26. The submission summarises the applicant’s migration history: he came to Australia in 2014 on a student visa in order to study at the Caroline Chisholm High School and then Lake Tuggeranong College, and subsequently enrolled in a Certificate III and Certificate IV in commercial cookery at the Canberra Institute of Technology. The submission notes that the applicant has indicated that he would like to enrol in a Diploma of Hospitality Management. The submission states that the applicant’s visa was cancelled following charges against him in regards to his former girlfriend, Ms Sophie Nguyen. The submission notes that three of the charges were withdrawn, and the applicant was convicted on 31 January 2020 of threatening to capture/distribute intimate images and was sentenced to a 12 month good behaviour bond and 75 hours of community service.

27. The submission states that the existence for the ground of cancellation is indisputable as found by the delegate. The submission notes that the applicant cooperated with the police and made admissions during his first interview, and has cooperated with the court proceedings through remorse and an early plea of guilty. Reference is made to the sentencing remarks made by Magistrate Boss in regards to the applicant, stating that the applicant has no prior criminal history and has spent his time away from family studying and working in Australia.

28. The submissions state that the applicant has acknowledged his offence and continues to express his remorse, noting that he has abided by the conditions imposed, that he is undergoing counselling with a student counsellor at the Canberra Institute of Technology, Ms Margaret Chua, that he has given up paid work in order to complete the community service hours, and that he has continued with his studies. It is submitted that the applicant’s efforts to better himself should be given significant weight when considering the case’s merits. It is further submitted that the applicant has acknowledged his wrongful conduct and has overcome his hurtful feelings, and that the applicant no longer presents a risk to the health and safety of the victim or the broader community. The submission states that rehabilitation has already shown positive outcomes for the applicant, as noted in the sentencing remarks.

29. The submissions state the offence arose from the applicant’s frustration and depression following the sudden breakdown of his relationship, and his attempts to ‘win’ the victim back, but note that the applicant has acknowledged that the behaviour impacted negatively on the victim’s mental health. Reference is made to a statutory declaration made by the applicant (and annexed to the submissions) that the applicant regrets his behaviour and wishes he had not done it. Further reference is made to the statement, and that the applicant has been abiding by his conditions as an act of recognition and acceptance of responsibility. It is noted that the applicant completed 34 out of his 75 hours of community service between 12 February and 23 March, and reference is made to an annexed letter from the ACT Corrective Services confirming this.

30. It is submitted that the offence resulted in part from a mental breakdown, and that the applicant is attending regular counselling sessions at the Canberra Institute of Technology. Reference is made to an upcoming report by the counsellor, which would be submitted once prepared.

31. The submission states that the applicant arrived in Australia when he was 15, that he has been living and studying for the past 6 years and progressed from high school to college and the Canberra Institute of Technology. It is submitted that the applicant is a young man with a brilliant future, who was conducting a happy life with good and positive attitudes as witnessed by family, friends and employers. It is submitted that the sudden breakdown of his relationship caused a mental breakdown, where the applicant was in a poor frame of mind and made an immature decision in circumstances where he did not understand its implications. The submission states that the applicant’s conduct is unprecedented and should not be interpreted as ongoing criminal behaviour on the applicant’s part, nor as an indication of ongoing risk to the health and safety of the victim or the good order of the community. In support, reference is made to an annexed written statement from the applicant’s mother, noting the applicant’s general good character and that the incident was a one-off and that the applicant has matured and wants to make positive changes, continue his study, and achieve his career goals.

32. Mention is made to the applicant’s stable employment in a part-time job for over three years at the Hudson Dickson Café, and that the owner, Mr Tai Phat Huynh, has previously provided support to the applicant in a submission to the Department, and also provided a reference in regards to the criminal charge. Reference is made to Mr Huynh’s annexed statutory declaration in support of the applicant, noting his observations of the applicant’s general good character during his time as an employee. Reference is made to a reference provided by a family friend and the applicant’s former employer of the applicant, Mr Duyet Ngoc Tran, referring to the applicant’s good character. The submissions also annexed letters of support from two of the applicant’s friends, Ms Minh Thuan Le, and Mr Nhan Phu Pham, noting the applicant’s general good character and the applicant’s remorse regarding the offence.

33. It is submitted that the applicant has never violated any conditions imposed on his visas since coming to Australia. It is submitted that the applicant came to Australia with the sole purpose of having a better education and building his career as a chef following his studies. The submission notes that there is no evidence showing any neglect from this main purpose or non-compliance with visa conditions.

34. It is submitted that the applicant wishes to finish his current course and complete a diploma of hospitality management. Reference is made to the annexed testamurs, transcripts, and a letter from the Canberra Institute of Technology confirming the applicant’s enrolment. Reference is made to the applicant’s statutory declaration regarding the degree of hardship endured since the cancellation of the visa. It is noted that the criminal proceedings and visa cancellation have interrupted the applicant’s study, and caused him anxiety. The submission states that the applicant’s only hope has been to continue his studies, which is significant to him and his parents, and that the applicant would have to leave Australia without completing his current course, and be subject to condition 4013 and therefore the applicant would be excluded from returning to Australia for 3 years.

35. It is further submitted that there is no equivalent education in Vietnam which would grant the applicant credit for his prior learning in Australia. The submission states that this would be a waste of time and financial resources and result in the applicant being forced to discontinue a nearly-completed degree. It is submitted that preventing the applicant from completing his course would impact negatively on the applicant’s mental health, self-esteem, and motivation to better himself following the offence. It is submitted that the applicant is young, responsible and kind, and that he committed a one-off offence due to immaturity and depression, and deserves a second chance.

36. It is also submitted that, due to the outbreak of coronavirus, the cancellation of the visa would result in the applicant’s immediate departure from Australia, which would be impossible at present due to border closures and lack of flights, and that this would pose unnecessary risks to the applicant’s health and his family.

37. The Tribunal notes the sentencing remarks provided by the applicant’s representative, particularly her Honour’s remarks that the offence is towards the mid-range of objective seriousness, that the victim has been put into considerable distress and humiliation through the offence, and that this type of offence can have long-lasting effect on the individuals concerned as well as the broader community.

38. The Tribunal notes that the report from the applicant’s counsellor was received on 31 March 2020. The report confirms that the applicant has attended four counselling sessions, once per week, since 13 March 2020. The report states that the counselling sessions have focussed on reflecting on the events leading to the applicant’s behaviour as well as learning coping and communication skills. The report mentions that the applicant has been taught to practise meditation, and that the applicant’s employer has taken him to meditation classes at a Buddhist temple. The report notes that the applicant has expressed understanding of the requirement not to contact his ex-girlfriend, and that the applicant will continue to attend counselling and commit to homework assigned from the sessions.

1. In the hearing the applicant provided the following further comments in relation to the adverse information put to him pursuant to the procedural requirements of s.359AA of the Act. 

2. The applicant indicated that he had been in a relationship with the victim for 18 months and believed that they loved each other. The applicant and his family were very happy with the relationship. The applicant indicated that the relationship ended without any apparent reason. The applicant then indicated that he found out that his former partner was in a relationship with someone else and this caused significant distress and the applicant to undertake the acts that he did. The applicant admitted to posting an intimate picture of the applicant online.  However, this was posted just for a couple of hours and only the applicant and the victim were able to see the image. The applicant indicated that he was arrested the next day and made admissions to the police. The applicant indicated that he did not have a malicious intention to provide images to the public or to hurt the victim.

3. The Tribunal assesses all of the evidence as to whether the ground of cancellation is made out.

4. The Tribunal considers that the conduct of the applicant leading to the conviction was a threat to the health, safety or good order of the victim. The Tribunal does not consider ‘health’ should be considered in a narrow sense and should also include mental health. The Tribunal would consider that threats by a former partner to post intimate images online would impact in a not insignificant manner on the mental health of the person threatened. Further, the applicant has admitted to, albeit on a temporary basis, actually posting an intimate image of the victim.

5. Notwithstanding the remorse expressed by the applicant, the efforts he has taken in terms of rehabilitation and supporting statements, the fact of the applicant engaging in the acts leading to the conviction result in the Tribunal being satisfied that there remains a requisite risk from the applicant to the victim and/or the broader community. The level of seriousness of the conduct is, as indicated by the magistrate, at the mid-range level. The offence therefore is not minor or insignificant. In addition, the level of risk is couched in the terms of ‘may’ and ‘might’ rather than simply ‘would’.

6. In all the circumstances, including in the context of the factual matters leading to the conviction, the Tribunal considers that the applicant remains or would or might be, a risk to the health, safety or good order of the victim and/or the Australian community.

7. This establishes to the Tribunal in the context of the factual circumstances leading to the conviction and following that the ground of cancellation is made out.

8. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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

9. There are no matters specified in the Act or Migration Regulations 1994 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’.

10. These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

11. In the response to the NOICC, the applicant indicated that he arrived in Australia in 2014 on a student visa. He graduated high school and college in Canberra. He has been progressing steadily with his studies, having completed a Certificate III in Commercial Cookery and is currently studying a Certificate IV.  The applicant wishes to graduate and complete his course at the end of this year (2019).

12. The applicant’s education in Australia will help him to have the English skills and work experience to start a successful career in Vietnam. The applicant has always intended to return to Vietnam to work as a head chef in an internationally recognised restaurant. The applicant is currently working part-time in the industry. The applicant hopes one day to be able to run his own restaurant business.

13. Cancellation of the visa would have a devastating impact on the applicant’s education, future and career prospects in Vietnam. Cancellation would occur only months away from the applicant completing his course. The applicant would be forced to return to Vietnam without completing his Certificate IV.

14. Cancellation would prevent any further study in Australia. The applicant would wish to apply for further study to complete a Diploma of Commercial Cookery. This will be the minimum qualification required to obtain the jobs that the applicant wants.

15. Without the Certificate IV, the applicant’s career options as a chef in a good restaurant in Vietnam will be very limited. It is unlikely the applicant will be able to find well-paid cooking jobs in Vietnam, which will make it difficult for him to financially support himself in the future.

16. The applicant’s parents, who have financially supported the applicant’s studies, will be devastated if he is not able to complete his course. They had intended that the applicant return to Vietnam and gain employment and repay them for supporting the applicant’s studies.

17. The applicant’s parents are in poor health, which will be exacerbated by the stress that would be caused by the cancellation of the applicant’s visa.

18. Cancellation of the visa will cause the applicant to be isolated from the Vietnamese community. The applicant will be considered a failure by family, friends and the local community. The applicant will be shamed for being deported from Australia due to the alleged charges. The applicant’s future and that of his family will be threatened by the cancellation decision.

19. The applicant indicates that the factual matters leading to the charges (and conviction) arose outside the applicant’s control. The applicant submits that the alleged conduct occurred during the high stress and emotion of his relationship breakdown with the victim.

20. The applicant indicates that he has always complied with his student visa conditions while in Australia. The applicant indicates that he has always been truthful and honest in his dealings with the Department.

21. In terms of other relevant matters, the applicant indicates that he is a person of good character. He has been a good student and achieved good academic results. He works well with colleagues and always is respectful to others. The applicant has a clean police record and has never had issues with law-enforcement either in Vietnam or Australia. The applicant has previously undertaken volunteer work at a Vietnamese temple in Canberra and supported his local community.

22. Further submissions relating to discretionary factors, and also relevant to whether the ground of cancellation is made out, were contained in the submission and documents provided to the Tribunal prior to the hearing. These include submissions as to claimed mitigating circumstances, compliance with other visa conditions, and the degree of hardship to the applicant if the visa is cancelled. These are summarised in the section of this decision relating to whether the ground of cancellation is made out.

23. In the hearing, the Tribunal noted that the response to the NOICC indicated that the claimed events are outside of the applicant’s control because of the relationship background. The Tribunal put to the applicant that this appeared to be a failure of the applicant to take responsibility for his conduct. In response, the applicant indicated that he admits his responsibility for what he did.

24. On that basis, the Tribunal does not consider that the applicant is claiming that there were extenuating circumstances beyond his control that explain his conduct leading to the ground for cancellation being made out. The Tribunal would not otherwise accept that the understandable stress of a relationship breakdown would justify or excuse the conduct of the applicant in posting and threatening to post intimate images online of the victim.

25. However, the Tribunal does accept that the applicant has dutifully fulfilled his community service obligations as part of his sentence. The Tribunal does accept that the applicant has received counselling for the conduct leading to the conviction. The Tribunal does accept that the applicant has support from his employer, family and friends, as demonstrated by the various testimonials provided for the applicant, including as to the applicant’s good character. The Tribunal accepts that there is a risk posed by the applicant to individuals and the community, but does not consider that risk to be high.

26. The applicant has submitted that he has not breached any other conditions, and the Tribunal accepts this to be the case. However, the fact of the applicant having been convicted of a criminal offence would potentially have been a ground on which to cancel the applicant’s visa under s.116(1)(g). This is adverse to the applicant.

27. In the Tribunal hearing, the applicant reiterated the hardship he would face in not being able to complete and continue his studies in Australia. The applicant indicated that the Certificate IV in Cookery is still being studied by him, and due to be completed in June 2020. The applicant thereafter indicates that he intends to study a Diploma in Cookery, which is scheduled to finish in December 2020.

28. The applicant indicated that if he has to return to Vietnam prematurely this would be a hardship to both himself and his family. The applicant also indicates that he provides support for two aunts who live in Australia and that this is a further hardship if the applicant has to return to Vietnam prematurely.

29. The applicant indicates that he has been in Australia since the age of 14 (in his formative years) compounding the hardship if he has to return to return to Vietnam.

30. The Tribunal accepts not inconsiderable hardship to the applicant and his family if he has to return to Vietnam without completing and continuing his studies in Australia for the various reasons claimed by the applicant in both written submissions and the hearing, including as a result of the COVID-19 virus.

31. The Tribunal accepts that a hardship to the applicant if the visa remains cancelled would be his inability to apply for a considerable period for further visas to enter Australia.

32. The Tribunal accepts that if the visa remains cancelled the applicant could be an unlawful noncitizen if not granted a bridging visa.  However, the Tribunal considers that it is likely the applicant would be eligible for a bridging visa, which he currently holds.

33. The applicant indicated in the hearing that there are no Australian children whose interests would be affected by the continuing cancellation of the visa. The applicant indicated that he does not fear persecution or significant harm on return to Vietnam.

34. The Tribunal weighs relevant discretionary factors. The Tribunal accepts remorse and a degree of rehabilitation following the events in question. The Tribunal accepts that the applicant has undertaken counselling and has the support of an employer and friends. Whilst the Tribunal considers that there does remain a risk from the applicant to individuals and the community as a result of the events leading to the conviction, the Tribunal does not consider that the risk is high.

35. The Tribunal accepts that there would be a not insignificant hardship to the applicant if the visa remains cancelled in not being able to complete his current studies or progress to further cookery studies as he desires. The Tribunal accepts hardship to the applicant and by extension to his family if the applicant has to return prematurely to Vietnam. The Tribunal considers that the hardship is compounded by the fact that the applicant has been in Australia for a considerable period during his formative years.

36. These factors in the applicant’s favour are weighed against by at least some degree of ongoing risk by the applicant towards the health and safety of the Australian community, a segment of the community or individuals. These factors are significantly weighed against by the fact that the applicant has been convicted of an offence of a mid-range of seriousness. This is in the context of the applicant having the privilege of being a temporary resident in Australia and studying in Australia by virtue of his student visa.

37. In all of the circumstances, weighing matters adverse and favourable to the applicant, the Tribunal determines to exercise its discretion to cancel the visa. At its core, the Tribunal considers that the applicant has forfeited his right by his conduct, conviction and in the context of all the circumstances to continue to hold a student visa, at least for a period. The applicant will be in a position to reapply for a student visa and return to Australia once the exclusion period in relation to future visas expires.

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

    DECISION

39. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member