1732225 (Migration)

[2018] AATA 3154

1732225 (Migration) [2018] AATA 3154 (20 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1732225

MEMBER:Louise Nicholls

DATE:20 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

Statement made on 20 June 2018 at 4:59pm

CATCHWORDS
Migration – Cancellation – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – Whether the applicant is a risk to the health, safety or good order of the Australian community – Where the applicant has been found guilty of possession and supply of a prohibited drug – Where the applicant has shown significant remorse – Where the applicant was not seeking to make financial gain – Where the prohibited drugs were intended for personal use by friends of the applicant – Grounds for cancellation does not arise – Decision set aside and substituted

LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
Migration Act 1958 (Cth), s 116(e)(i)

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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. The applicant is a citizen of the United Kingdom and is [a particular] age. She was granted a Subclass 417 (Working Holiday) visa on 7 February 2017 and arrived in Australia [in] April 2017.

2. On 2 October 2017 the Department was provided with a copy of a Court Attendance Notice for the applicant’s appearance at the Local Court at [Suburb 1], NSW to answer criminal charges and associated NSW Police Facts Sheets. Those documents showed that the applicant was charged with supply and possessing a prohibited drug. She entered a plea of guilty to those charges in the Local Court.

3. On 7 November 2017 the delegate sent the applicant a Notice of Intention to Consider Cancellation pursuant to s116 of the Migration Act 1958 (the Act).

4. On 22 November 2017, and in response to that notice, the applicant’s representative provided the delegate with a number of documents, including:

   ·            Representative’s written submissions on cancellation.

   ·            Character references from six witnesses including her current employer.

   ·            A letter of support from her employer in relation to the applicant’s proposed application for a subclass 457 Visa.

   ·            The applicant’s statutory declaration made on 20 November 2017.

   ·            A SMART recovery attendance report. (SMART is a group rehabilitation program which assists in managing problem behaviours)

   ·            Letter advising the applicant of the date of her court appearance.

   ·            Statement of agreed facts in relation the criminal charges (to be used for sentencing).

   ·            AFP national police check receipt and AFP national police check certificate.

5. On 13 December 2017 the delegate of the Minister for Immigration and Border Protection cancelled the applicant’s Subclass 417 (Working Holiday) visa under s.116(1)(e)(i) of the Act on the basis that the applicant was involved in the supply of illicit drugs which might pose a risk to the health of members of the Australian community.

6. This is an application for review of that decision and it was lodged on 19 December 2017. The applicant provided a number of documents to support the review including:

   ·            A photocopy of the delegate’s decision record dated 13 December 2017.

   ·            A photocopy of the biodata page of the applicant’s UK passport.

   · Unsworn affidavit of the applicant prepared for NSW District Court appearance [2018].

   ·            Written submissions on sentence made on behalf of the applicant by her solicitor [in] 2018.

   ·            Letter of support from the applicant’s employer addressed to the Presiding Judge, Sydney District Court [in] 2018.

   ·            Four character references prepared for the applicant’s sentencing hearing in the District Court.

   ·            Advice of Court Result District Court of New South Wales dated [in] 2018 and copy of bond conditions.

7. The applicant appeared before the Tribunal on 8 June 2018 to give evidence and present arguments. The applicant gave evidence about her background, the grounds of cancellation and other matters relevant to the cancellation of her working holiday visa. The Tribunal found the applicant to be a credible witness who gave straightforward evidence regarding the circumstances of the cancellation.

8. The applicant was represented in relation to the review by her registered migration agent who did not attend the Tribunal hearing.

9. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION

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

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)(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.

    Background

12. The applicant is [a] citizen of the United Kingdom. She was born in [a particular location in the United Kingdom]. Her parents live in [Town 1]; her father has his own business and her mother is [in a particular occupation]. She has one sister who is living with her parents. The applicant is not married and is not in a de facto relationship.

13. The applicant attended school in [a particular location in the United Kingdom] and then completed [a particular qualification] at [a particular university]. After she finished her course she was employed in [a particular company]. She was promoted to several roles in that company.

14. She travelled to Australia on a tourist visa in September 2016 and then returned to the United Kingdom where she applied for a working holiday visa. She was granted that visa on 7 February 2017 and arrived in Australia [in] April 2017.

15. When she first arrived she found a place to live [in Suburb 2] then four weeks later moved to her current address in [Suburb 3] where she has lived ever since.

16. She is currently working full time in a [company] which is a [company] specialising in [the provision of particular services]. She is [in a particular position] for that company and works in [a particular location in] Sydney.

    Does the ground for cancellation exist?

17. 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].

18. 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.

19. The applicant does not agree that she is 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.

20. At the Tribunal hearing she stated that when she first arrived in Australia she was lonely and made friends with a group of people who were involved in recreational drug and alcohol consumption.

21. Whilst she was out with some members of that group at [a particular venue] in [a particular suburb] [in] May 2017 the group decided to buy some MDMA (Ecstasy). They purchased the drugs and the applicant agreed to keep the drugs in her handbag for distribution amongst the four women friends.

22. Whilst they were out at the [venue] together the police drug detection team entered the hotel with drug detection dogs and they came up to the table where she was sitting. The dog sat near her bag and the police officer asked her if she had any drugs in her possession. She admitted she had drugs in her bag.

23. She was arrested and taken to [a particular] police station where the drugs were examined and weighed and she was charged with two offences, that is, supply and possession of prohibited drugs. She agreed to be interviewed and admitted she had the drugs in her bag and that the drugs were for the joint use of herself and her three friends.

24. She attended the Local Court in [Suburb 1] and pleaded guilty to two offences, that is, Possess Prohibited Drug and Supply Prohibited Drug (Indictable quantity). In his written submissions her representative pointed out that if the amount of the drug seized is an indictable amount then the accused is automatically deemed to be “supplying” a prohibited drug. However, he submitted that she had no intention to supplying the drug and that the ecstasy was for her personal use and social supply (not for profit) with individuals who were recreational drug users.

25. The applicant stated that her former friends had not given statements to police or attempted to assist her when she was arrested and she felt quite let down by their behaviour. She is no longer friendly with members of that group and now has another circle of friends who have a healthier and more outward looking lifestyle.

26. The applicant gave evidence that she cooperated with police, admitted her guilt and has not attempted to justify her behaviour or blame others. She was sentenced in the NSW District Court [in] 2018 for the two offences and the court made a finding of guilt without proceeding to a conviction on condition that she enter a s.10 good behaviour bond for 2 years pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999.

27. She told the Tribunal that she was not a regular drug user but had enrolled in the SMART recovery program for persons who wanted to manage problem behaviours. She found the program very useful in helping her manage stressful situations, finding alternative approaches to stress relief and recognising risk factors which might lead to problem behaviours. She provided evidence of her enrolment and attendance. Her ability to discuss the nature of the program and how it has assisted her indicates that she made a serious commitment to managing her behaviour and change her lifestyle.

28. The applicant described how her conduct and the conviction had affected her aspirations for her future and had caused her family heartache. She was quite distressed when discussing the effect on herself and her family. She described herself as a honest person who was quite career driven. She loves her work in Australia and would be devastated if the offences had an adverse impact on the possibility of working in Australia in the future.

29. The applicant was able to provide copies of references she had used for her sentencing hearing in [2018] and these had all consistently described her as a responsible, caring person who was extremely remorseful. Her referees describe the offence as an isolated incident which is not indicative of the character or background of the applicant.

30. It is also noteworthy that her employer has provided a reference and has continued to employ the applicant in a responsible position in his business and has promoted her to a more senior position during her time in the business.

31. The statement of agreed facts provided to the District Court in the sentencing hearing noted the following;

    ·            There were no aggravating factors relating to the offence or the offender.

    ·            The applicant had no criminal record and was of prior good character.

    ·            The applicant had good prospects of rehabilitation by virtue of her admissions to police, cooperation and prior good character. Additionally the overwhelming observations on the character reference material and the support she has from her parents’ family and employer indicate that she is of good character.

    ·            The applicant demonstrated her remorse. In addition to her plea of guilty the agreed facts reflect the substantial admissions made by the applicant.

    ·            The applicant arrived in Australia in April 2017 and met a group of people through a mutual friend. She began socialising with this group at least once a week and this would involve drinking and drug use. She had known this group for one month prior to being charged. However following her charge the applicant immediately began to distance herself from the social group and within one month she had cut off all contact.

    ·            Since the offence she has made a conscious decision to shift her focus to work on career growth and this has proved successful.

    ·            She has formed new positive friendship circles which are not associated with parting were drug taking. She has remained abstinent from drug taking and has undertaken the Smart Recovery Program and completed the full program.

    ·            In terms of objective seriousness of the offence the following factors are noted:

    ·the offence is not part of any sophisticated criminal activity,

    ·there was no sophisticated concealment of the drugs,

    ·the quantity of the drug is at the very lowest end of the indictable range, and the offence was not committed for financial gain.

32. The Tribunal notes that in [2018], after hearing the evidence put to it on the issue of an appropriate outcome, the NSW District Court proceeded to make a finding of guilt without proceeding to a conviction on the applicant entering a two year good behaviour bond. This indicates that the court accepted the statement of agreed facts and submissions on sentence made on behalf of the applicant.

33. The Tribunal has considered the evidence before it and does not accept 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.

34. It found that the applicant was a credible and honest witness and takes particular note of the following factors in its determination. The Tribunal finds that; the applicant immediately admitted her guilt and was co-operative with police, was genuinely remorseful and has attended a rehabilitation program to help her manage problem behaviours, the applicant was not supplying drugs for profit and was only holding the drugs for personal use and on behalf of her friends, that she is of prior good character, that she has distanced herself from her former friends and not engaged in any drug taking since the charges and that she has applied herself to her career and a healthy lifestyle.

35. The Tribunal does not consider that the applicant will engage in possession or supply of drugs even for social use in the future and thus does not accept she poses any risk to the evidence indicates that she poses 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.    

36. For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

37. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 417 (Working Holiday) visa.

    Louise Nicholls
    Senior Member