1727772 (Migration) - [2018] AATA 2762

1727772 (Migration) [2018] AATA 2762 (12 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1727772
MEMBER:Denis Dragovic
DATE:12 July 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.
Statement made on 12 July 2018 at 12:23pm

CATCHWORDS
Migration – Cancellation – Subclass 020 (Bridging B) visa – Risk to the health safety and good order of the Australian community– Drug trafficking charges – Indictable offence – Harm to the community – Discretionary factors – Immediate family are Australian citizens – Meaningful contribution to society – Small business owner – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 375A
CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR
MZAJA v Minister for Immigration [2017] FCCA 448
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 31 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant was charged with possessing a large commercial quantity of a controlled drug for sale, specifically 5kg of methamphetamines. The delegate found the applicant to be a risk to the health and safety of the Australian community because the [State 1] police found that there was enough evidence to substantiate laying charges for trafficking of a large quantity of a drug that they identified as being damaging to the health of those who use it including potential death. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 26 March 2018. As the applicant was pleading not guilty and progressing through the court process all the while in remand it was decided that the decision be deferred until after the applicant’s next court date which was the 20 April 2018. The second hearing was held on the 18 June 2018. The applicant had been refused bail. His case was set for trial in April 2019. Based upon these circumstances and after informing the applicant of my preferred course of action I have decided to complete this decision on the evidence available. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.
The applicant was represented in relation to the review by his registered migration agent.
The department had placed a s.375A certificate on the file. I explained the purpose of the certificate. I found the certificate to be valid. I gave a brief summary of the type of document behind the certificate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 2762
Decision Date: 12 July 2018

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Subclass 020 (Bridging B) visa. The applicant, who had resided in Australia since 2004, sought to have the cancellation decision set aside. The Tribunal was required to consider whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed and, if so, whether the visa should be cancelled in the exercise of the Tribunal's discretion.

The primary legal issue before the Tribunal was whether the applicant's conduct, specifically drug trafficking charges constituting an indictable offence, posed a risk to the health, safety, and good order of the Australian community, thereby satisfying the ground for cancellation under section 116(1)(e). Following the determination that this ground was met, the Tribunal had to consider the discretionary factors relevant to whether the visa should be cancelled, weighing the applicant's circumstances against the harm to the community.

In its reasoning, the Tribunal acknowledged the applicant's long-term residence in Australia, his completion of education, and his military service in South Korea. However, it found that these factors did not establish a compelling need for him to remain in Australia. The Tribunal gave limited weight to the absence of prior breaches of visa conditions, deeming it a minimum expectation. It found no significant hardship to family members, as the applicant was not married, had no children, and his family's concerns were limited to his sister's depression and his mother's loneliness. The Tribunal also noted the applicant's claims of ignorance and innocence, but found no extenuating circumstances. The Tribunal considered the mandatory legal consequences of cancellation, including the limitations imposed by section 48 of the Act, but afforded this little weight. No international treaty obligations were found to be breached by cancellation, and the possibility of applying for a protection visa was noted.

The Tribunal was satisfied that the ground for cancellation existed and, after considering the discretionary factors, affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 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 PAM3 ‘General visa cancellation powers’. The applicant came to Australia to live with his family who are Australian citizens. He completed his high school studies and university degree in Australia. He freely returned to South Korea to complete his military service there. He has been in Australia since 2004. Based upon this information I find that the applicant does not have a compelling need to remain in Australia. I give this factor some weight in favour of cancelling his visa. Other than the current alleged transgression the applicant has not had prior breaches of visa conditions or any negative behaviour towards the Department. I give this limited weight against cancelling his visa for the reason that it is a bare minimum expectation not to breach visa conditions. In considering whether the applicant or any family members would face financial, psychological, emotional or any other hardship I have considered his current circumstances. His family is not dependent upon him. He has no children nor is he married. He has been in prison for over eight months with no claims of what I would term hardship arising from his incarceration. The applicant said that his sister is suffering depression and his mother is lonely. Without any dependents and with only expressions of concern limited to a sister’s depression and a mother’s loneliness I find that future immigration detention will not amount to any form of hardship to his family. As such I give no weight in this regard. In considering the circumstances in which the ground for cancellation arose and in particular whether there are any extenuating circumstances I note that the applicant has maintained his ignorance of the circumstances and his innocence. Based upon these claims there are no extenuating circumstances and as such I place no weight on this consideration. There are no persons in Australia whose visas would or may be cancelled under s.140 was the applicant’s cancelled. I note that there are mandatory legal consequences to a cancellation decision for this applicant. There are provisions in the Act that prevent the applicant making future valid visa applications without the Minister intervening specifically section 48. This section allows for the applicant to apply only for a prescribed series of visas. I find that this limits the applicant’s scope of options but not such that it would lead me to give it anything more than little weight I have also considered whether Australia has obligations under international treaties which may be breached if the applicant’s visa was cancelled. I find that there are none. The applicant has not raised claims against being able to return to South Korea. If he were to in the future, the opportunity remains for him to apply for a protection visa as it is one of the prescribed visas that he can apply for despite having a cancelled visa. I give this element no weight.