1811140 (Migration) - [2019] AATA 1366

1811140 (Migration) [2019] AATA 1366 (26 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1811140
MEMBER:Melissa McAdam
DATE:26 April 2019
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 April 2019 at 10:52am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – risk to health safety or good order of Australian community or individual – charged with offences related to prohibited drugs – conditional release on bail – compliance with bail conditions – frequency of police visits – strong and stable support circle – credible witness evidence on applicant’s character and behaviour – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359
CASES
Gong v MIBP [2016] FCCA 561
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 18 April 2018 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).
The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant has been charged with offences involving prohibited drugs. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
CONSIDERATION OF CLAIMS AND EVIDENCE
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). 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.
Section 116(1)(e) of the Act provides as follows:
Section116
Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; …
The applicant was granted a Subclass 500 (Student) visa on 4 December 2017.
The delegate’s decision to cancel the visa has been submitted to the Tribunal by the applicant. The delegate’s decision outlines the following:
a.The applicant was issued with a Notification of Intention to Consider Cancellation (NOICC) of his visa on 19 March 2018.
b.The cancellation was based on charges for offences related to prohibited drugs. The applicant was charged on 30 November 2017 with the following offences:
i.Supply prohibited drug – commercial quantity; and
ii.Possess prohibited drug.
c.According to the [State 1] police information, [details deleted]
d.The delegate referred to information from the Australian Medical Association regarding the “adverse health impacts [of named substance] to individual users” as well as “broader impacts for society”.
e.The applicant provided a written response to the NOICC that there were no grounds for cancellation of his visa for the following reasons:
i.The facts alleged by the police still remain in dispute and the charges will be vigorously defended.
ii.There has been no finding by any court or tribunal in relation to the alleged facts.
iii.As the facts are in dispute it was not open to the delegate to rely on such information.
iv.The record of interview conducted between himself and the police contains the following:
-     [Details deleted]
-     [Details deleted]
-     [Details deleted]
-     [Details deleted]
-     [Details deleted]
-     [Details deleted]
-     He submitted the following documents:
i.copy of a record of police interview
ii.copy of a transcript of [social media] messages
iii.copy of a Statement of a Witness from an interpreter used for the police interview
iv.copy of a District Court Practice Note
v.copies of several photos.
f.The delegate found that the applicant’s presence in Australia may be a risk to the health of the Australian community and that there were grounds for cancellation of the applicant’s visa.
According to police and court documents on the Department’s file:
·the applicant was due to appear in Court on [date] April 2018.
·on [date] April 2018 the applicant was granted conditional release on bail by the Supreme Court in [State 1]. Bail conditions included:
i.a requirement to be of good behaviour;
ii.daily reporting to the police;
iii.reside at a specified address;
iv.not to leave home between the hours of 8 pm and 7 am unless in the company of his aunt.
v.two acceptable persons to deposit cash surety for the applicant’s appearance at his next court date.
b.the applicant’s next scheduled court appearance was on [date] May 2018 in [named] Court.
Pre-Hearing Submissions
On 15 January 2019 the applicant’s Agent submitted a letter to the Tribunal requesting a postponement of the applicant’s scheduled hearing, stating:
In response to the invitation and for the reasons provided below, we request that:
1. The scheduled hearing be stayed pending the determination of the criminal proceedings against [the applicant] in respect of the charges against him;
2. The parties list the proceedings for further directions within 14 days of the conclusion of the criminal proceedings.
Procedural fairness and real prejudice
The reason provided for the cancellation of [the applicant]’s visa is that in accordance with s116(1)(e)(i) of the Migration Act, the Minister was satisfied that 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 Australia community or a segment of the Australia community.
[The applicant] was charged of ‘Supply prohibited drug- commercial quantity’ under [specified legislation] and the ODPP advised that a back-up charge is ‘Possess prohibited drug’ under [specified legislation]. The trial of the offence for which [the applicant] is charged is presently listed in [named court] [in] September 2019 and the estimated trail length is 5 days.
The criminal offences for which [the applicant] was charged and the reasons for the Department of Home Affairs to make the decision of cancelling [the applicant]’s visa arose out of the same factual matrix that [the applicant] was allegedly been found in the possession of a commercial quantity of [named substance].
The factual matrix will be the important consideration for the AAT in reviewing the Department’s decision. Therefore, in deciding whether the presence of [the applicant] is or may be, or would or might be, a risk to the health, safety or good order of the Australia community or a segment of the Australia community, the AAT proceeding has common issues with the element of the offence in the criminal proceedings, including but not limited to [the applicant]’s intention in supplying/possessing certain drugs, [the applicant]’s actual knowledge of his involvement in the supply/possession of prohibited drugs, [the applicant]’s actual knowledge of [details deleted].
We wish to bring the decision of Justice Jagot in Ransley v Commissioner of Taxation [2016] FCA 778 (Ransley) to the Tribunal’s attention. The decision provides rulings in relation to whether civil proceedings should be stayed pending resolution of related criminal proceedings. Her Honour ruled that if prejudice can be established, it justifies the grant of a stay of the civil proceeding. Justice Jagot also considered the case of Golden City Car & Truck Centre Pty Ltd v Deputy Commissioner of Taxation [1999] FCA 922; (1999) 42 ATR 379 (Golden City Car). In the latter case, Cooper J observed as follows:
“… any prejudice of the type referred to by Wilcox J in Cameron's Unit Services Pty Ltd v Kevin R Whelpton Associates (Australia) Pty Ltd (1984) 4 FCR 428. Examples of real prejudice given by his Honour were:
(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;
(ii) the proximity of the criminal hearing;
(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;
(iv) the burden on the defendant of preparing for both sets of proceedings concurrently ;
(v) whether the defendant has already disclosed his defence to the allegations.”
Therefore, in [the applicant]’s case, here are real prejudice that justifies the grant of stay of the current proceeding:
1) For [the applicant] to give evidence in the AAT proceeding is likely to involve him in being required to answer questions about his intentions and his knowledge of [details deleted]. In the present case, [the applicant] should be able to object to answering questions on the ground that his answers might tend to incriminate him, but here are potential prejudice to which [the applicant] will be exposed if forced to the AAT hearing without his evidence or to which [the applicant] will be exposed if he is compelled to give evidence in the AAT hearing. If [the applicant] is required to answer the questions in relation to the factual matrix, he will possibly be put in a position to incriminate himself which will prejudice the criminal proceedings;
2) By disclosure of his defence, it may enable the fabrication of evidence by prosecution witnesses, or interference with defence witnesses that causes miscarriage of justice;
3) Since civil cases and criminal cases have different standard of proof, if the AAT hearing goes ahead of the criminal case, the civil case may have inconsistent factual findings with the criminal case and prejudice the criminal proceedings;
4) If the civil case and the criminal case are run currently, it will cause financial difficulty to [the applicant] to afford both sets of legal fees at the same time. Additionally, limited by time and efforts, it imposes heavy burden to [the applicant] to prepare both cases at the same time and may also cause the consequence of under preparation.
2. Practical difficulty/convenience for AAT
We submit that it is premature to make the decision because of the lacking of accurate information. As I have stated above, the most important consideration at this stage is the police charges against [the applicant]. The charges are themselves in dispute in the aspects of the elements of the offences, including the factual situation, the intention and knowledge of [the applicant] in the involvement in possessing/supply the drugs. The finding of facts is pending the decision of the criminal court. The AAT will have real difficulty in the finding of facts and making a decision before the criminal case is concluded. It may be time-consuming and not cost-effective to conduct the hearing at this stage.
In addition, after the sentence of the criminal case being entered, it will better assist the AAT in making its decision. Therefore, it is premature to conduct a hearing before the conclusion of the criminal case.
Due to the reasons stated above, we kindly request that the hearing be stayed pending the determination of the criminal proceedings against [the applicant]. We also advise that we will appeal the AAT decision if the hearing is conducted before the determination of the criminal case.
On 17 January 2019 the Tribunal wrote to the applicant’s Agent requesting further details of the applicant’s court proceedings.
On 24 January 2019 the applicant’s Agent’s firm wrote to the Tribunal enclosing a Court Order of [date] December 2018, and stating that the court order showed that “the matter is listed [in] Aug 2019 for Mention; listed [in] Sep 2019 for trial with an estimate duration of 5 days”. The Court Order, dated [in] December 2018, stated that the applicant was charged with two offences, namely ‘Possess Prohibited Drug, Seq 1’, and ‘Supply Prohibited Drug, commercial quantity, S1’.
Tribunal Hearing
The applicant appeared before the Tribunal on 7 February 2019 and 15 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from four witnesses on behalf of the applicant.
The following is a summary of the information provided by the applicant at the hearing:
a.He is living with his ‘aunt’ in [Suburb 1]. Her husband, daughter and granddaughter also live there. His ‘aunt’ is related to his father. She is not the applicant’s aunt but his father told the applicant to call her ‘aunt’.
b.The applicant’s parents are financially supporting him.
c.His ‘aunt’ has lived in Australia many years.
d.Every time the police come to his aunt’s house he is always there. The police were coming every one or two weeks. Recently they are only coming every one or two months. He is also reporting to the police every morning.
e.He helps his aunt with the shopping and the housework. He spends a lot of his time with his girlfriend at her house. They have been in a relationship for about one and a half years. He helps her look after her cats. He also cooks for her. His girlfriend lives near the police station. She has a gym and swimming pool in her apartment block which the applicant uses.
f.The applicant has friends. He sees them regularly but most of them are now in China for Chinese New Year. They will return to Australia soon. His friends are his class mates here.
g.None of the applicant’s friends have any problem with the police.
h.[Mr A] is the applicant’s father. He was in Australia when the applicant was granted bail but he has now returned to China.
i.His father is applying for another Visitor visa to return to Australia to see the applicant.
j.The applicant has two other distant relatives in Australia.
k.His mother has visited him in Australia. She plans to visit again later this year.
l.The applicant’s father cares a lot about him.
m.The applicant is not being pressured by anyone to do anything he doesn’t want to do.
n.The applicant provided a transcript of his phone records to show his innocence in relation to the drug possession and supply charges.
o.The applicant’s Agent submitted that the only charge against the applicant was a possession charge as the supply charge had been dropped.
The following is a summary of the information provided by the applicant’s witness [Ms B] at the hearing:
a.[Ms B] is the sister-in-law of [the applicant]’s mother. She has known the applicant since he was born. They had no contact when she first came to Australia but resumed contact when he came to Australia to study.
b.She lives in [Suburb 1] with her husband, daughter and granddaughter. The applicant has lived in her home since April 2018.
c.The applicant doesn’t cause any problems or concerns to [Ms B]. He is a very good boy. He goes out with her on the weekends to do shopping. He also helps with the cleaning, laundry and lawn mowing at her home.
d.The applicant sometimes brings his friends over for dinner. They are his friends from his education course. They are very polite and mostly talk about school life.
e.The applicant sometimes brings his girlfriend over too.
f.The applicant always tells [Ms B] when he is going out and where he is going
g.The police often go to her house to check on the applicant. They were coming almost every week but now it is once or twice a month. The police stay for a few minutes and get the applicant to sign something, then they leave.
h.The applicant never uses drugs. He is always an obedient and kind boy. His family had spent a lot of money on him for his education. Most days the applicant reads and/or watches television. He also helps [Ms B]. He can’t attend school because his visa is cancelled. The cancellation of his visa was a heavy blow to him and his future.
i.His parents send him money every one or two weeks. It is enough for him to live on. He does not ask [Ms B] for money.
j.He is not a risk to the community. He is a good boy.
The following is a summary of the information provided by the applicant’s witness [Ms C] at the hearing:
a.[Ms C] is the applicant’s girlfriend. They met during their studies in Australia. They have been in a relationship for two or three years.
b.She thinks the applicant is a very loving and helpful person.
c.She knows his friends. They are also the applicant’s classmates from his studies.. She does not know if the applicant ever had any ‘bad’ friends. His friends now are very good people who follow the law.
d.She and the applicant spend a lot of time together. He is often at her home. Each evening at a set time she sends him off to the train station so he can be back at his home in time for his ‘curfew’. He always leaves and takes the train on time.
e.She raises a special breed of cats. The applicant helps her with their care. He also cooks for her.
f.The police have never come to see her.
g.She doesn’t know anyone who has any involvement in drugs.
h.She does not think that the applicant may be a risk to anyone. He is a very loving and helpful person.
i.Most of the time they are at her home and go for walks. They sometimes go out to the supermarket or shopping centre together. They also go to the cinema and the beach. When they are out no one causes them any problems.
The following is a summary of the information provided by the applicant’s witness [Mr D] at the hearing:
a.[Mr D] is a friend of the applicant.
b.He attended the same class as the applicant and sat at the same desk. They both became good friends.
c.[Mr D] does not think the applicant may be a risk to anyone in Australia. [Mr D] knows about the applicant’s police problem but believes the applicant was wronged. Their main focus has always been on study. They both worked hard at their studies and for their exams.
d.[Mr D] has not had any problems with the police.
e.[Mr D] is concerned about the applicant. The applicant usually gives positive energy to others but since his problem he is a little sad. He is still trying to be constructive and has tried to find some employment to fil the gap while he cannot study. He has looked for work as a waiter.
f.Initially the applicant was too embarrassed to ask his friends for help with his visa matter. But [Mr D] and the applicant’s other friends very much want to help the applicant. [Mr D] believes the applicant is an upright person. That is why he has come to give evidence for the applicant at the Tribunal.
The following is a summary of the information provided by the applicant’s witness [Mr E] at the hearing:
a.[Mr E] is a friend of the applicant.
b.When he first arrived in Australia he and the applicant attended their first class together. They have been good friends for more than one year. The applicant has offered [Mr E] a lot of help over the time of their friendship.
c.[Mr E] has not had any trouble with the police.
d.It is impossible that the applicant may be any risk to other people. The applicant helped [Mr E] when he first arrived in Australia regarding the ways and rules here. He helped [Mr E] buy [a transit card] and explained how to use public transport. He also explained things like traffic rules to [Mr E].

On 19 March 2019 the Tribunal wrote to the applicant’s Agent under s.359(2) of the Act asking him to clarify whether the charge of ‘supply prohibited drug’ remains against the applicant.
On 1 April 2019 the applicant’s Agent provided a written responses stating that the Agent’s submissions that the only charge against the applicant was a ‘possession’ charge were mistaken. The Agent clarified that the two charges of ‘possession’ and ‘supply’ remain outstanding against the applicant. The Agent apologised for the mistake and emphasised it was his alone and not the fault of the applicant.
Does the ground for cancellation exist?
Section116(1)(e) - risk to Australian community or individual
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]. According to the Court in Gong the standards ‘is or may be’ apply to visa holders in Australia and ‘would or might be’ apply to holders outside of Australia (at [39]). The Tribunal therefore is considering the standards ‘is or may be’ in this review application.
The applicant is currently charged with offences of supply and possess a prohibited drug.
The applicant has submitted that he is defending the criminal charges against him, in Court. He therefore exercised his right not to answer questions about the charges during the Tribunal hearing.
The Tribunal has to assess the risk the applicant presents to health, safety or good order of individuals in Australia, on the evidence before it. In the Tribunal’s view there is little evidence to indicate the applicant’s presence is such a risk, apart from the existence of the charges.
The evidence before the Tribunal indicates the applicant is a person living with his older relatives, including his ‘aunt’ and her husband; spending time with his girlfriend; with a social circle of friends who do not provide him with time or reason to involve himself in illegal activity. The applicant reports daily to police, abides by a court imposed nightly curfew at 8 pm, and who has always been present at home when the police visit to check on his whereabouts.
The Tribunal found the evidence of the applicant’s witnesses very persuasive and consistent in regard to their opinions that the applicant is not a risk to others. They each described their high opinion of the applicant’s character and behaviour. The details they gave also provided a sound base for the views they offered.
The applicant stated he is abiding by his bail conditions. There is no evidence to the contrary. The witnesses each described the circumstances of the applicant’s compliance with his bail conditions in a straightforward and plausible way. The Tribunal accepts the applicant is abiding by his bail conditions. Bail conditions were imposed upon the applicant to reduce the risk the applicant presents in Australia. The Tribunal considers that the bail conditions, and particularly the applicant’s compliance with them, significantly reduce the scope for the applicant to be a risk to anyone in Australia.
The Tribunal also notes that the Department issued the applicant with a Bridging Visa on 23 May 2018 and that the Bridging visa remains valid. The Tribunal considers that the issue of the visa supports a view that the applicant is not considered a risk to anyone in the community.
The Tribunal finds it significant that the police have reduced the frequency of their visits to the applicant’s residence to as low as once a month. This is strong indication that they have determined he is compliant with his bail conditions and that he does not warrant a great deal of attention.
The applicant reports to the police station every day. The Tribunal considers that the applicant’s daily contact with the police also greatly reduces the chances he may be a risk to anyone in Australia.
In the Tribunal’s view, the applicant’s behaviour since receiving his bail conditions; his strong and stable support circle; the ongoing support of his older relatives; the continuing emotional and financial support of his parents; and the daily monitoring and requirement to be responsible have all resulted in an environment in which the risk he presents to others in Australia is negligible.
The Tribunal notes the low standard for ‘risk’ imposed by the amended section 116(1)(e). However in view of the accepted evidence and above findings it is difficult to find a likely context in which the applicant may be a risk to others in Australia. The overwhelming weight of the evidence indicates he is not.
The charges remain outstanding against the applicant and may or may not result in the applicant’s conviction for serious offences. Regardless of the outcome of the applicant’s criminal trial the Tribunal is not satisfied that the applicant’s presence in Australia may be a risk to others in Australia.
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
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Melissa McAdam
Member