1820418 (Migration)

[2018] AATA 4834

1820418 (Migration) [2018] AATA 4834 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820418

MEMBER:Justin Meyer

DATE:24 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

Statement made on 24 July 2018 at 4:07pm

CATCHWORDS
Migration – Cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – Whether the applicant may be a risk to the public health, safety or good order of the Australian community – Unlawful noncitizen – Criminal charges – Credibility concerns – Seriousness of the allegations against the applicant is a counterweight to financial hardship – Decision affirmed

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 3

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K 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 11 July 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 030 (Bridging C) 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 charges that the faced indicate that the applicant may be a risk to the public health, safety or good order 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.

3. The applicant appeared before the Tribunal on 23 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A].

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

5. 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

6. 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

7. The applicant is [age old] man who is a citizen of Lebanon. He arrived in Australia in 2011 on a student Visa. He studied [a certain subject] but did not finish his course. He has not worked whilst in Australia. He has received payments from [various community organisations] to cover his living expenses.

8. The applicant allowed his student Visa to lapse as he was not studying, but did not address his unlawful visa status in Australia until 2016 when encouraged to do so by a friend. He visited a law firm in 2016 and lodged a protection Visa application. A bridging Visa was granted in connection with that application. That application was refused by the Department, and the applicant has appealed that decision in a separate matter before the Tribunal. That appeal is yet to be heard by the Tribunal.

9. The Tribunal was informed at the hearing that the applicant made a separate application for a partner visa as recently as 20 July 2018. This application was made on the basis of being in a de facto relationship with [Ms A], and Australian citizen. A waiver of Schedule 3 of the Migration Act is sought in this case by virtue of having children in Australia from the relationship. This application is yet to be decided upon by the Department.

10. Whilst holding a Subclass 030 (Bridging C) visa the applicant was charged with the following criminal offences, as evidenced by a charge sheet before the Tribunal:

    ·The accused at [Town 1] on 13 June 2018 did traffic a drug of dependence namely cannabis

    ·The accused at [Town 1] on 13 June 2018 did cultivate a narcotic plant namely cannabis

    ·The accused at [Town 1] on 13 June 2018 did use a drug of dependence namely cannabis

11. On 11 July 2018 a delegate of the Minister for Home Affairs decided to cancel the applicant’s Subclass 030 (Bridging C) visa under s.116(1)(e)(i) of the Migration Act 1958 (the Act). The subsection is as follows:

    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

12. The applicant provided a copy of the decision record to the Tribunal.

13. The applicant also made a written submission via his representative.

14. The applicant supplied a copy of birth certificate for the [children] that he has with his [partner].  The applicant also supplied photographs of himself with his partner and his children.

15. The applicant’s partner also gave evidence over the telephone.

    Does the ground for cancellation exist?

16. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

17. The applicant provided a copy of the cancellation decision record indicating that he had been charged as described above.

18. The applicant gave oral evidence at the hearing that he had been charged with these offences and he was due to appear in court next in August 2018. He also provided a copy of the [court] Information Sheet which outlined the charges set out above.

19. The applicant did not provide the Tribunal with any documents or other evidence in relation to his plea. He has not made a decision on what his plea will be. He said that he possessed a single cannabis plant, and used its leaves entirely for his own consumption. He said he used seeds from a previous amount of cannabis he had once bought whilst living in Melbourne years before and planted the seeds years later. He claimed that he had neither bought or sold cannabis or any other drug after that period or shared his plant with anyone else. It was indicated in the hearing that some charges might be dropped or amended at the time of the hearing in the [Town 1 court] in August 2018. Exactly what course the police prosecutor might take is unknown however.

20. The applicant’s evidence at the hearing led to there being concerns from the Tribunal.  In particular, the Tribunal found it concerning that the applicant previously claimed to have bought cannabis in the past, but had put a stop to this and grew a plant when he moved to [Town 1] from seeds of previously purchased cannabis. This train of submission means that the applicant sustains an admitted regular marijuana habit from just one plant, the leaves of which he presumably dries and then smokes, or reduces to an ingestible in some other way. He claimed to have no contact with anyone involved in illegal drugs for a period of years. He stated that he had neither bought nor sold, nor did he know anyone involved in illegal drugs. He learnt what he could from watching YouTube videos. When asked why the police would raid his house, he claimed ignorance. He did not know of anybody who had “dobbed him in,” he said that he had no involvement with anybody connected to drugs. When asked by the Tribunal whether he had any enemies he replied ‘no’.

21. All of this evidence stretched credibility. Even bearing in mind the privilege against self-incrimination which was explained to the applicant in simple terms, I am still concerned about this evidence. It seems unlikely to the Tribunal that the applicant would have no associates whatsoever for a period of years in connection to regular illegal drug use and alleged cultivation.

22. The Tribunal makes no finding on what offences if any have occurred, and again notes that the applicant has a privilege against self-incrimination which was carefully explained.

23. Nonetheless the Tribunal finds that the applicant has not been entirely forthcoming with the Tribunal as to the nature of his activities with what is an illegal substance. The degree of seriousness of his encounters with cannabis is yet to be determined, and may well be at the lower end, however his attempts to explain his conduct are concerning and puzzling to the Tribunal, and lead the Tribunal to conclude that his evidence is not credible.

24. In considering this material in the light of there being a risk to the good order of the Australian community I am mindful of the fact that the word risk is not defined in the Act. I give regard to PAM3 in its description of the level of risk, and its explanation of the term risk is not defined in the act and is by its very nature speculative and uncertain. However the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future. I note that for the purposes of the relevant subsection the need only be a risk, and it does not need to be high or extreme risk in order to enliven the ground for cancellation.

25. In considering the phrase “good order” I am mindful of PAM3’s description under ‘25.7 risk to good order’, which describes there is an element of risk that a visa holder’s presence in Australia might be disruptive to the proper administration or observance of the Australian law”. Mindful as I am that PAM3 is a guidance only, it must be considered by the Tribunal. I have concluded that there is at least some risk of continued non-observance of the Australian law in this instance.

26. Having considered the evidence before it, the Tribunal is satisfied that the presence of the applicant in Australia is or may be a risk to the good order of the Australian community The Tribunal is therefore satisfied that the ground for cancellation in s.116(1)(e)(i). As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

27. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

28. Those circumstances include the purpose of the visa holder’s travel and stay in Australia. In this case the applicant’s travel and stay in Australia has been to study (now abandoned), flee his home country and migrate to Australia, and to remain in Australia as the partner of an Australian citizen. Cancellation of the bridging visa does not of itself preclude those of his current purposes. The Tribunal places some weight on this in favour of cancellation.

29. The applicant was granted the bridging visa on 28 November 2016. From that date until the before mentioned events which led to cancellation of the visa it appears that the applicant was compliant with his previous visa conditions. This weighs in the applicant’s favour and against cancellation of the visa.   

30. However between the lapse of his student visa, which he claims he was not notified of, and the granting of his bridging visa he had a period of unlawfulness. He soon dropped out of his course in or around 2011 and thus had a period of unlawfulness in the vicinity of four years. I find that the applicant was aware within a reasonable amount of time after ceasing study that he was in breach of his visa conditions and was not living lawfully in Australia. This situation continued on without excuse up till 2016. I do not accept the applicant’s evidence that he only became aware of his unlawfulness or turned his mind to the topic when a friend discussed the matter with him. It goes against reason that he could be living without permission in Australia for such a long period without knowing. I do not find a commendable that he sought legal advice so late in the piece. This weighs against the applicant, and in favour of the cancellation of the visa.

31. Another relevant circumstance is the degree of hardship that may be caused if the visa is cancelled. Cancellation would make the applicant subject to further detention. There is no doubt that detention is harder for the applicant compared to others and that a continued period of further detention is undesirable. There appears to be relatively recent mental health issues including a diagnosis of anxiety and depression by medical doctor at the behest of the Department whilst the applicant has been in detention for the last few weeks. The applicant stated that he had not previously suffered from adverse physical or mental health issues. Nonetheless I acknowledge that being in detention would be unhelpful to his mental state. Still,  I note that he has been prescribed medication for this issue, which he is taking, which I find would ameliorate some of the effects.

32. This factor carries significant weight in not cancelling the visa but is ultimately outweighed by the seriousness of the allegations against the applicant.

33. The Tribunal has considered the circumstances in which the ground of cancellation arose. It is sufficient in this context to reiterate the seriousness of the allegations against the applicant.

34. The decision record and evidence indicates that the applicant was cooperative with the Department and the police as the delegate considered the cancellation of his visa. This weighs in the applicant’s favour and against cancellation of the visa.    

35. Another relevant circumstance is whether cancellation would result in the applicant being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation. The Tribunal refers to its remarks on the subject of hardship to the applicant.

36. The applicant’s partner gave evidence about the hardship that would be suffered to her and her children if the applicant continued to be detained and I give this evidence regard. She has little if any family and friend support and the applicant was previously involved in rearing the children and caring for the household. Whilst this is a factor which weighs against cancellation of the of the applicant’s visa, I nonetheless reiterate the seriousness of the allegations against the applicant as a counterweight to this factor.

37. Both the applicant and his partner gave evidence about the financial hardship that they experience. The applicant noted that his payments from a community organisation were cut off when he entered detention, which effectively halved the family’s income. The applicant’s partner receives government benefits, particularly in regards to raising the parties’ children. The Tribunal accepts that reliance on a government benefit given to the applicant’s partner is in the order of $600 per fortnight with rent assistance and this is very difficult. Nonetheless the Tribunal also notes the applicant is being housed in an immigration facility with his basic physical needs being taken care of. The Tribunal still considers it possible for the applicant’s partner to care for herself and her children on a government benefit, difficult as this may be. Whilst the factor does weigh against the cancellation of the applicant’s visa, I nonetheless reiterate the seriousness of the allegations against the applicant is a counterweight to this factor.

38. The applicant has made some remarks in his written submission that all of the charges were categorised as serious by the Department in yet not all of them are. The the drug use of cannabis cannot be and is not a serious offence in the submission of the applicant. The Tribunal notes a submission however it also notes that cultivation and trafficking are of a more serious order and they remain charges that the applicant faces. Overall there is a consideration of the good order of the Australian community, which I have made consideration of regarding future compliance with the law. From the evidence and the history of the applicant with the authorities in Australia I have reached the conclusion that there is a risk of non-compliance with the law in Australia in the future were a decision made not to cancel the bridging Visa, the consequences of which would be that the applicant would reside in the community.

39. Evidence was provided in the hearing about certain other issues that the applicant has had with the authorities. The applicant has one other conviction where he was found [guilty].  He was convicted and required to pay a $1000 fine. It related to a previous [friend].  At the time it occurred he in fact took his friend to get help. Two weeks after he reported it to the police. The applicant entered into a plea bargain with the police. The victim did not attend the [hearing].

40. The applicant also had to attend court in April 2018 because of a report that was made by his partner’s mother on an alleged unlawful assault on his partner. The applicant stated that no conviction was entered but he was required to attend an anger management class by the magistrate. The applicant has attended certain of the aspects of this course, which was interrupted by his immigration detention. The applicant said the incident was a misunderstanding and that he did not touch his partner. He said he was outside the house when his partner’s mother called the police out of panic but there was no yelling or physical altercation. It was put to the applicant that even if this were the case he has in fact been instructed by a court to undertake an anger management course. This still remains  a live with the authorities as the course is not complete.

41. The applicant was also asked why on the birth certificate of his children he listed a different address to his partner. His reply was intriguing to the Tribunal. He stated that this was his previous address which he had inserted out of fear or panic even though he was no longer living at that address. He said that he was claiming rent assistance for that address and should have notified the government of his new address, where he was residing with his partner. It was later submitted that although both his partner received separate rent assistance from the Australian government whilst they were living apart, they could continue to claim two rent assistance amounts whilst cohabiting. The Tribunal has severe concerns about this being a legitimate situation. The Tribunal accepts that the applicant was eventually convinced by his partner two months after the event of moving in with her that he should notify the Australian government of his new address. Nonetheless in the overall context of difficulties with the authorities, the Tribunal remains concerned about whether the law is being followed by the applicant in the past and whether future compliance with the law will occur. It is another factor which weighs against the applicant’s future compliance with the law. Even bearing in mind that bail was granted to him and he appears to have met bail conditions where possible, I find that bail does not mean that there is no risk of non-compliance with the law in the future (and I reiterate that the Tribunal finds there is a risk of this occurring).

42. I note the evidence of the applicant and his partner that he has not touched substances since his troubles with the police, and has undertaken to engage in a substance education course. I note the applicant’s statements of a remorseful nature to the Tribunal about the taking of cannabis, and his determination to shed weaknesses in his character. I also note the applicant’s partner’s abhorrence of drug use and what appears to be her good influence over the applicant. Nonetheless in the light of my earlier concerns and my other concerns about whether the law is being followed by the applicant in the past, his general conduct with the authorities and government, and whether future compliance with the law will occur, this earlier factor is outweighed.

1. Another relevant circumstance is whether any international obligations would be breached as a result of the cancellation. In this respect the Tribunal is mindful that cancellation of the bridging visa is not determinative of the applicant’s immigration status more broadly. There is nothing before the Tribunal to indicate that the applicant could be refouled if his bridging visa were cancelled.

2. If the applicant’s bridging visa is cancelled he will remain in detention until the finalisation of his application for a protection and/or partner visa. He will either be successful and be granted a visa or his application will be refused and he will eventually leave or be removed from Australia. There is no prospect of indefinite detention. 

3. He is a citizen of Lebanon, and is able to obtain a travel document and return to Lebanon.

   CONCLUSION

4. The consequence is that, even if the applicant’s presence in Australia is not an actual risk to the safety of the Australian community, it at least may or might be a risk to the good order of the Australian community. This means that grounds exist for cancellation of his bridging visa. The Tribunal considers that, for the reasons it has given, in the exercise of its discretion, the visa should be cancelled.

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

   DECISION

6. The Tribunal affirms the decision to cancel the applicant’s Subclass 030 (Bridging C) visa.

   Justin Meyer
   Member