1903544 (Migration)

[2019] AATA 5189

1903544 (Migration) [2019] AATA 5189 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1903544

MEMBER:Melissa McAdam

DATE:23 July 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 573 Higher Education Sector visa.

Statement made on 23 July 2019 at 4:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – risk to the health of the Australian community – illegal drug cultivation – abiding by bail conditions – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116
Drug Misuse and Trafficking Act 1985 (NSW), s 23

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. This is an application for review of a decision dated 15 February 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

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

   NOICC

3. On 21 January 2019 the Department Delegate sent the applicant a written Notice of Intention to Consider Cancellation under Section 116 of the Migration Act 1858 (‘NOICC’). The NOICC included the following information:

   -    The department received information that the applicant was allegedly involved in activities relating to the cultivation of commercial quantities of cannabis.

   -    As a result of his alleged involvement NSW police charged the applicant on [a date in] August 2018 (Charge Number [number]) with the following offences:

   §  Cultivate prohibited plant, commercial quantity cannabis

   §  Enhanced indoor cultivate cannabis for commercial purpose

   §  Deal with proceeds of crime

   §  Knowingly participate in criminal ground assist crime

   §  Use/consume/waste etc. electricity without authority.

   -    The police information indicated the following:

   §During investigations regarding large scale cannabis cultivation in Sydney, police conducted surveillance and identified a residence in [Town 1] as being utilised for the cultivation of cannabis plants.

   §On the night of [date] August 2018, police surveillance indicated a motor vehicle …  entered … [an address in], [Town 1] adjacent to the identified residence in [Town 1]. The visa holder was observed driving the vehicle and later entering the residence. Further surveillance indicated that the visa holder remained within the residence for approximately an hour and left the residence carrying a plastic bag.

   §At about 23:38 on [the same date in] August 2018, police stopped the motor vehicle and a subsequent search of the vehicle revealed a plastic bag containing cannabis. Police allege the bag was similar to the plastic bag carried by the visa holder as he left the residence. Police also found $[amount] in cash along with multiple mobile phones in the visa holder’s possession. Following this, the visa holder was arrested by the police.

   §A short while later, police attended the property in [Town 1] with a search warrant. Police discovered four rooms that had been set up to hydroponically grow approximately [number] cannabis plants. Police also found a seedling tray containing between [number range] infant cannabis plants.

   §Police also observed that the electricity supplied to the premises had been illegally bypassed.

   -    The Delegate referred to information that cannabis was damaging to health. Therefore it appeared that the applicant’s continued presence in Australia may pose a risk to the health of the Australian community.

4. Information in the Department’s file also states that the applicant was granted conditional bail [in] September 2018.

   Response to NOICC

5. On 24 January 2019 the applicant provided a written response to the Delegate, stating:

   a.He confirmed that the specified charges existed and that he was named as the offender.

   b.His solicitor has prepared documentation to defend the charges in court.

   c.His last court appearance was [in] January 2019 at [Court 1].

   d.His next court appearance will be [in] February 2019.

   e.He believes his Student visa should be held without cancellation while the matter is being investigated.

   f.He attached a copy of a Court order from [Court 1], dated [in] January 2019, which stated:

   i.The offences he was charged with (as listed above);

   ii.His bail is to continue

   iii.His bail conditions are:

   1.   To report daily to [Police Station 1].

   2.   Not to enter any international airport or point of departure.

   3.   To live at [an address in Town 2]

   4.   To not be absent from those premises between the hours of 10 pm and 6 am.

   5.   To not be in contact with the co-accused.

   6.   His passport to be released into the custody of his legal representatives to be used for his immigration medical examination, and then returned to the Court registry before 4pm on [a date in] January 2019.

   7.   An acceptable person, [named], deposit the sum of $[amount] in cash and enter into a bail security agreement.

   Delegate’s Decision

6. The Delegate found that the applicant had allegedly been involved in activities relating to the cultivation of commercial quantities of cannabis, which has a range of adverse health consequences. On 15 February 2019 the delegate cancelled the applicant’s visa under s.116(1)(e) on the basis that his presence in Australia may pose a risk to the health of the Australian community.

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

   Tribunal Hearing

8. The applicant appeared before the Tribunal on 3 June 2019 to give evidence and present arguments. The following is a summary of the information the applicant provided at the hearing:

   a.The applicant has married. He lives in [Town 2 in] Sydney, with his wife. No one else lives with them.  His wife was unable to get time off from her work to attend the hearing.

   b.The applicant pleaded guilty to the charge of knowingly take part in the cultivation by enhanced indoor means, of a prohibited plant, namely, cannabis.The other charges against him were dropped by the prosecution.

   c.His next Court appearance date for sentencing is [in] June 2019.

   d.There are two co-accused in the applicant’s criminal matter. The applicant is not allowed to see or talk to them. One of them is on bail and the other is bail refused. The one on bail was a friend of the applicant. The applicant has had no contact with either co-accused since his arrest.

   e.The applicant has been released on bail since mid-September last year. His bail conditions include reporting to [Police Station 1] every day; to not be outside his home after 10 pm; to not obtain another passport; to not see the co-accused; and to not go overseas.

   f.The applicant has reported every day to [Police Station 1]. The police have not conducted any home visits.

   g.His current friends are his school friends.

   h.At the time of the offence the applicant’s then friend asked him to give him a lift in a car because the friend did not drive. That person wanted the applicant to drive him to a place the applicant had never been to before. The applicant drove him there but did not enter any building. The person told the applicant to wait for him at the end of the street.  The applicant waited and then picked up the person and drove away. On his way home he was arrested by police.

   i.The applicant became aware that cannabis was involved while he was at the place.  He had had no involvement with illegal drugs before this time.

   j.He has never used cannabis.

   k.He no longer has any contact with the friends who got him involved in the incident. He spends his time with other people and learning [vocational] skills.

   l.He believes he will not do any harm to Australia. The Prosecutor also agreed to cancel the other charges.  He did not intentionally get involved in the offence. This was the first time he had been involved in such a thing and he never will again.

   m.There are no other police charges against him.  He has had no other problems with the police.

   n.He has lived with his wife at [Town 2] for five or six months.  Before this he lived with friends of his parents at [Town 3].  He refers to his parents’ friends as uncle and aunt.  They guaranteed his bail for his release.  He has phone contact with them and visits them every one or two weeks.  He has a very good relationship with them.  They have a [business] at [a location].

   o.He met his wife at the beginning of last year.  She was born in Australia. They married [in] March 2019.  He found out last week that his wife is pregnant.

   p.He works as a [specified occupation] but his parents are mostly financially supporting him.  His parents know about the previous charges against him and his and his conviction. They were surprised and very worried when they found out. They have applied to visit him in Australia but their Visitor visa application was rejected.

   q.He spends his time at home, at school, and at work.  He does voluntary work every Saturday evening, assisting at the [named] Buddhist Temple.

   r.He is also learning [vocational skills] as an apprenticeship. He is currently studying a [Field 1] course.  He previously completed his Certificate III in [Field 2].  He started studying his Certificate IV but did not complete it because of his arrest.

   s.He has passed most of his subjects in the [named] course.  He has to repeat one or two subjects.

   t.If his visa remains cancelled he will have to live apart from his wife.

   u.He has been granted a Bridging Visa E.

   v.The applicant submitted court documents confirming his conviction of the one charge.

   Post-Hearing Submission

9. On 18 and 22 July 2019 the applicant submitted the following documents to the Tribunal, through his Agent:

   i.NSW Marriage certificate, dated [in] March 2019, for the applicant’s marriage to [Ms A].

   ii.Medical documents from June 2019 confirming [Ms A] is pregnant.

   iii.Photographs of the applicant and [Ms A] at home and in various social settings.

   iv.Receipts for the applicant and [Ms A’s] rent payments from April 2019 to the present.

   v.Statements from the applicant’s joint bank account.

   vi.An electricity bill from [a named utility] for the applicant and [Ms A’s] address.

   vii.A Confirmation of Enrolment for the applicant at [a named college] in a [Field 1 course].

   viii.A statutory declaration from [Ms A], dated 17 July 2019.

   ix.A statutory declaration from the applicant’s ‘aunt’, [Ms B], dated 14 July 2019.

   x.A statutory declaration from the applicant’s ‘uncle’, [Mr B], dated 19 July 2019.

10. The following is a summary of the information in [Ms A’s] Statutory Declaration:

    She is the applicant’s wife. They have been in a relationship with each other since 2018 and married [in] March 2019. They live together. She is currently pregnant with their first baby.

    She is aware that her husband has had issues with the law In the past and this is what caused his current issues with the Department cancelling his visa.

    However, she also knows that her husband was not directly involved with any of the illegal actions relating to the drugs. He has told her that he was only involved in driving his friend around as a favour and he did not leave the area or report anything when he realised what was happening.

    He told her that his friends were involved in this drug activity and he naively agreed to help them with a favour when they asked. He did not know what he was getting himself involved with at the time.

    Since the issues with the offences happened, she knows that her husband has made sure to not associate with friends that he knows have involvement in criminal activities, and he is very careful with the types of people he socialises with. She believes that the applicant no longer socialises with the same people who got him in trouble in the first place, and he has new friends that he socialises with now.

    She knows that the applicant has to report to the police station every day at [Police Station 1] as part of his bail conditions, and he has been very consistent with this. He does not miss a day.

    Her husband and she have a very normal life together. He works with a friend In [a vocational] apprenticeship and studies at the same time. He also regularly volunteers at a local temple and helps with the community.

    Since they live together and are married, she believes that she knows the applicant very well. She knows that he is a very kind and loving person, and he would never actively engage in any illegal activities.

    His support network includes herself, his parents in Vietnam who still support him very much, and his parents' friends in Australia who he lived with when he first lived in Australia.

    She thinks that the applicant is going to be a very good father and will continue to be a good member of the community. She does not think that he is a risk to the safety or wellbeing of society. He has definitely learnt from his mistakes in the past and is more careful about trusting the wrong people. She thinks that their coming child will be additional reason for him to be careful with his friends and activities in the future.

11. The following is a summary of the information in [Ms B’s] Statutory Declaration:

    She is friends with the parents of the applicant. He stayed with her and her husband at home when he first came to Australia to study.

    In February 2018, the applicant moved out and lived on his own.

    When she first found out that the applicant had trouble with the police and drugs, she was very shocked. She could not believe that he would do anything so dangerous and bad. She has known him for some time now and did not know him to be anything other than a kind and generous person and a dedicated student.

    When she finally spoke to the applicant about it, she found out that it was not what she thought and that he was accused of the wrong things. She believes the applicant when he tells her that he was only doing a friend a favour and accidentally got involved in the crimes related to drugs. She has never met this friend, but she knows that the applicant does not see or talk to this person anymore. She sees that the applicant has new friends now and tries to be more careful with his life and actions.

    Before the criminal problems, the applicant was always a very kind person, who was respectful towards her and her husband. He was a hard-working student and she and her husband enjoyed having him live at their house with them.

    His daily life was just studying and going to school. He would sometimes go out with friends, but this was not often.

    She does not know exactly what his life is like now because he does not live with them, but she does speak to him and his parents often and she thinks he lives a very simple life.  She knows that he is still studying and is also working with his friend in [the business].

    He married his girlfriend [Ms A] this year in March and he lives with her in [Town 2]. She thinks that [Ms A] is now pregnant, and they are very happy about this news and their future.

    She still believes that the applicant is a very good person and he is not a risk to Australia. He is a hard worker and knows that his mistakes were very bad, but he is doing a lot now to make up for his problems and be a good person in Australia for his wife and future child.

12. The following is a summary of the information [Mr B’s] Statutory Declaration:

    He and his wife are friends of the applicant’s parents. Since the families are close, the applicant calls them aunty and uncle, and they consider him as a nephew. When the applicant first arrived in Australia to study, he stayed with [Mr B] and his wife and lived with them for just over one year before moving out in February 2018.

    The applicant always seemed like a very kind person and a good student. He was very respectful to [Mr B] and his wife, as well as to his parents, and he was always considerate of others and very kind to friends and strangers alike.

    While the applicant was living with them, he would study very hard and go to school regularly. His usual routine involved working part-time, studying, and would only sometimes go socialising with friends. He did not seem any different from a regular person at his stage in life, and even to this day seems to be the same.

    [Mr B] knows that the applicant did get in trouble with the law and the police recently, which caused a lot of issues for him. Like his parents, [Mr B] and his wife were very shocked and surprised at this news. They did not know the applicant as the kind of person who would be involved with this kind of behaviour and actions.

    [Mr B] is aware that the applicant did not intentionally get involved in this activity and is not a criminal like others. He believes that the applicant was just doing a favour for a friend and he thought that he was just driving his friend to help him.  [Mr B] does not know who this friend was, but the applicant tells him that he does not see them or talk to them anymore. [Mr B] trusts the applicant.

    [Mr B] thinks that since everything happened, the applicant has been very worried about disappointing his parents and even [Mr B] and his wife, so he is very careful with what he does, and he is just focused on his studies and working now.

    [Mr B] knows that the applicant married his girlfriend [Ms A] this year and now they live together in [Town 2].  [Mr B] talks to the applicant and his parents regularly, so knows what happens with his life. [Mr B] recently found out that [Ms A] and the applicant are expecting their first child together.

    To [Mr B], the applicant will always be the same kind and considerate boy that they have known him to be. He does not think that he intentionally acted this way or did these crimes.  His parents and [Mr B] are very worried about his future and time in Australia, especially now that he has a wife and child on the way, so they hope that he can have a good result with his visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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.

    Does the ground for cancellation exist?

14. 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].

15. 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.

1. The applicant has recently been convicted of the offence, knowingly take part in the cultivation by enhanced indoor means, of a prohibited plant, namely Cannabis, under s.23(1A) of the NSW Drug Misuse and Trafficking Act 1985. 

2. The Tribunal has to assess the risk the applicant may present to the 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 conviction. 

3. The applicant stated he is abiding by his bail conditions. There is no evidence to the contrary.  There is also no indication of any police reports that the applicant has not abided by his bail conditions. The Tribunal therefore 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 applicant reports to the police station every day. The Tribunal considers that the applicant’s daily contact with the police greatly reduces the chances he may be a risk to anyone in Australia.

4. The Tribunal found the evidence of the applicant’s witnesses persuasive and consistent in regard to their opinions that the applicant is not a risk to others.  They each described their good opinion of the applicant’s character and behaviour, and some detail of the basis for their views.

5. The evidence before the Tribunal indicates the applicant is now living with his new wife; spending time with her and at work and study; 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 and abides by a court imposed nightly curfew. 

6. The Tribunal notes in the applicant’s favour that there are, and no other  or remaining charges against him, and no other reports of any involvement with criminal offences  after the incident [in] August 2018.

7. The Tribunal also notes that the Department issued the applicant with a Bridging Visa on 28 February 2019 and again on 4 April 2019, and that the Bridging visa remains valid.  The Tribunal considers that the grant of bridging visas supports a view that the applicant is not considered a risk in the community.

8. In the Tribunal’s view, the applicant’s good behaviour since receiving his bail conditions; his strong and stable support circle; his financial stability; the ongoing support of his wife and older relatives; the daily monitoring by police; and his new responsibilities as an expectant father have resulted in an environment in which the risk he presents to others in Australia is negligible.

9. The applicant has been convicted of an offence and may be sentenced to a custodial sentence.  The Tribunal considers that if this occurs, the applicant’s incarceration will remove the possibility of the applicant repeating his offence  or anything similar. It would thereby substantially reduce the possibility his presence in Australia may be a risk to the health of the Australian community.  If the applicant does not receive a prison sentence, or is given a suspended prison sentence,  so that he remains at large, the Tribunal would expect his bail conditions would cease to be applicable. However he would likely be under other court sanctioned imperatives not to re-offend. In such circumstances the Tribunal is satisfied that the applicant would respond to these positively so that there is little possibility he may pose a risk in Australia.

10. 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.

11. 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.

    Consideration of discretion

12. While it is not necessary to discuss the Tribunal’s discretion in this matter the Tribunal does note that if it was required, the Tribunal would likely find favourably for the applicant on this basis, in view of his recent marriage, pregnant wife, and commitment to his work and study in Australia.

    DECISION

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Melissa McAdam
    Member