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

1. 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).

2. 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.

3. 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.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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 to a level of detail as was found on the certificate itself. In brief, I explained that the document was for the purposes of priority assessment of his case, it goes through all of the steps taken in engaging with the applicant and considering whether to cancel the visa. I explained that the reason the Department put the certificate is that it reveals the email addresses and names of Department officials as well as revealing Departmental processes in considering such matters. I explained that there is no adverse information in that document. The applicant had no objections.

6. 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

7. 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)(e)(i). 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 has been charged with the possession of 5 kilograms of methamphetamines. He provided the following explanation. The applicant runs a courier business in [Australian city 1]. One of his high school friends from South Korea asked him to visit him in [Australian city 2] and then to drive to [Australian city 3]. The friend paid for the trip. The applicant spent a week in [Australian city 2] before getting a rental vehicle, in the applicant’s name, to travel to the east coast. As the applicant was driving in [State 1] the police stopped them and upon a search of the vehicle found the methamphetamines. He claimed that he hadn’t seen it before. It was found in the speakers of the car.

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. I now turn my mind to the question of whether the presence of the applicant in Australia is, or may be, or would or might be, a risk to the health, safety or good order of the Australian community noting the observations in Tien as to the meaning of ‘good order’ in that it connotes a public order element and requires that there be an element of risk that the person’s presence in Australia might be disruptive to the observance of the law (among other matters).

12. Having regard to the language in the regulation and noting Gong v MIBP [2016] FCCA 561 at [45] a criminal conviction after trial is not required before I may form a state of satisfaction that the applicant is, or may be, or would or might be a risk to the Australian community. To the contrary, in my view the nature of the language used in the regulation: ‘risk’, ‘may be’, ‘might be’, calls for a lesser degree of certainty than is required for a criminal conviction.

13. I note that the Department’s Procedures Advice Manual (PAM3) states,

    If a person has been charged with offences relating to the manufacture or possession of large quantities of illicit substances, a delegate may be able to be satisfied that the s116(1)(e) ground exists if they are able to draw a logical link between the alleged commission of the offences and a risk to the Australian community, or a segment of the community.

    The logical link in this case is what would be required to come into possession of a commercial quantity of drugs. This is not an amount consistent with personal use. It is an amount that would have required access to international drug rings or domestic manufacturing sources if not personal knowledge of manufacturing techniques. Access to such a network or possession of such knowledge in of itself can be a risk as it can’t be destroyed or withheld by the police and can be used again even in part through advice and guidance to others.

14. The risk to the Australian community if methamphetamines were to be available is high. The Alcohol and Drug Foundation provides the following information:

    Ice psychosis

    High doses of ice and frequent use may cause ‘ice psychosis’. This condition is characterised by paranoid delusions, hallucinations and bizarre, aggressive or violent behaviour. These symptoms usually disappear a few days after the person stops using ice.

    Dependence

    People who regularly use ice can quickly become dependent on the drug. They may feel they need ice to go about their normal activities like working, studying and socialising, or just to get through the day.

    Mental health problems

    Some people who regularly use ice may start to feel less enjoyment of everyday activities. They can get stressed easily and their moods can go up and down quite quickly. These changes can lead to longer-term problems with anxiety and depression. People may feel these effects for at least several weeks or months after they give up ice.[1]

    The Hon. Chief Justice Wayne Martin AC, has said:

    The number of murders and armed robberies committed by people addicted to methamphetamine is "truly frightening", Western Australia's Chief Justice says.

    Justice Wayne Martin said 95 per cent of armed robberies and up to half of all murders could be attributed to people taking methamphetamine, also known as ice or crystal meth.[2]

    [1] What is ice? Alcohol and Drug Foundation, accessed 12 July 2018

    [2] ‘Number of crimes committed by methamphetamine addicts 'truly frightening', WA's top judge says’ ABC Radio Perth, 25 February 2015 accessed 12 July 2018

15. Although the applicant has not been convicted and as such has not been found to have the knowledge or networks I accept that there can be a logical connection between the offence and a risk to the Australian community.

16. In considering whether the risk reaches the threshold of ‘may be, or would or might be’ I have taken into consideration the severity of the charges in a manner not dissimilar to a risk matrix. In a risk matrix, an event which has a low likelihood of occurring and low impact if it occurred poses a low risk. An event with a high likelihood of occurring and a high impact if it occurred is a very high risk. In this circumstance we have a situation where the impact upon the Australian community or a segment of the Australian community if a commercial quantity of methamphetamines was to be released into the community through his direct involvement or advice it would amount to a very high impact but the likelihood of this applicant being capable of doing so must be assumed to be low, only for reasons of limited evidence before this Tribunal of his networks and knowledge. It is a matter for me then to balance these two factors. In doing so I find that the nature of the alleged crime and as discussed the knowledge or networks required is so severe that despite the low likelihood, the presence of the applicant in the community may be a risk to the health, safety and good order of a segment of the Australian community.

17. 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

18. 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’.

19. 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.

20. 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.

21. 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.

22. 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.

23. There are no persons in Australia whose visas would or may be cancelled under s.140 was the applicant’s cancelled.

24. 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

25. 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.

26. I note that the applicant has played a meaningful contribution to Australian society including running a small business, studying a degree and participating in the broader sporting community.  I give this some weight against cancelling his visa.

27. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled for the following reasons. The applicant has been charged by the [State 1] police for a major indictable offence leading to the conclusion that the presence of the applicant in the community may be a risk to the health, safety and good order of a segment of the Australian community. The applicant’s circumstances, as described above, are not sufficiently compelling to outweigh the risk to a segment of the Australian community.

    DECISION

28. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

    Denis Dragovic
    Senior Member