1906824 (Migration)

[2020] AATA 858

1906824 (Migration) [2020] AATA 858 (19 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906824

MEMBER:Melissa McAdam

DATE:19 March 2020

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 19 March 2020 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – risk to safety of Australian community – criminal charge, guilty plea, intensive correction order and electronic monitoring – discretion to cancel visa – factors for and against cancellation – purpose of order – applicant’s compliance – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(e)

Migration Regulations 1994 (Cth), r 2.43

Crime (Sentencing Procedure) Act 1999 (NSW), ss 7, 66(1)

Crimes (Administration of Sentences) Act 1999 (NSW), ss 81, 91

Drug Misuse and Trafficking Act 1985 (NSW), s 25

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 20 March 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 her registered migration agent, Mr [A] of [Agency].

   NOICC

3. On 5 March 2019 the Department 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:

   It appears that a ground exists for the cancellation of the visa holder’s Student (subclass 573) visa because she has allegedly engaged in activities relating to the supply of a large quantity of a prohibited substance, namely [Drug 1].

   As a result of this alleged behaviour the visa holder was charged by the New South Wales Police [in] 2018 with the following offence:

   -  Supply a prohibited drug > Large commercial quantity section 25(1) [sic] Drug Misuse and

   Trafficking Act (1985).

   The police report advises that [in] August 2018 the visa holder knowingly took part in the
   negotiation and supply of [Quantity 1] of [Drug 1].

   The police information alleges that the co-accused in the matter, the visa holder’s de facto partner … offered to sell a potential buyer [Quantity 1] of [Drug 1] for $[amount] per kilogram. It is alleged that during this meeting the visa holder actively participated in the negotiation of supply, suggesting that only [half of Quantity 1] of [the drug] be sold to the buyer, while the other [half] be retained by the visa holder and [her de facto partner] to be sold and distributed in smaller quantities. As [her de facto partner] agreed with the visa holder’s suggestion, police allege that this conversation demonstrates a sophisticated level of involvement in [her de facto partner’s] [Drug 1] supply enterprise, directly influencing business dealings.

   Recent illicit drug data research undertaken in the Australian community highlights the significant harmful physical and psychological health effects prohibited drug use has on users. [Drug 1] is associated with a wide-range of physical and psychological health impacts. Short-term effects of [Drug 1] use may include impaired cognitive functions [and other specified physical effects]. Long-term use may lead to cognitive and memory impairment, flashbacks, panic attacks, depression and psychosis. In high doses [Drug 1] can interfere with the body’s ability to regulate temperature and can result in liver, kidney or cardiovascular system failure.

   As the visa holder has allegedly been involved in the supply of a commercial quantity of [Drug 1], a prohibited drug known to detrimentally affect the health of persons who use it, it appears that her presence in Australia may be a risk to the health of the Australian community. Therefore there appears to be a ground to cancel her visa under subsection 116(1)(e)(i) Migration Act.

4. Information in the Department’s file states the applicant was granted bail [in] December 2018.

5. On 6 March 2019 the applicant’s Migration Agent provided a written response to the Department, stating:

   a.   The applicant was charged with one count of knowingly take part in the supply of a prohibited drug being not less than a large commercial quantity of [Drug 1].

   b.   The applicant will defend the matter.

   c.   The applicant was granted conditional bail [in] December 2018.

   d.   Her matter is listed for charge certification [in] March 2019. There will later be a case conference between her lawyers and the prosecution to discuss the future of the matter.  If the matter is not withdrawn she will defend it in [Court 1].

   e.   Whilst on bail the applicant has tried to resume her life as a student and has enrolled in a [course] at [Institution 1].

   f.    She is not a risk to the health, safety or good order of the Australian community.

6. Information in the Department’s file states that the applicant’s next Court appearance was [in] May 2019.

7. On 20 March 2019 the delegate found that the applicant may pose a risk to the health of the Australian community, because of her alleged involvement in commercial drug distribution activities, and cancelled the applicant’s visa under s.116(1)(e).

8. 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

9. The applicant appeared before the Tribunal on 6 June 2019 and 18 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and ‘guardian’ [Mr B].  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

10. The following is a summary of the information provided at the hearing:

    a.She has pleaded not guilty to the charge against her.  Her trial date, before a jury, is in December. The matter has been listed for five days of hearing.

    b.Her mother provided her bail surety for her release.

    c.Her mother comes to Australia every two or three months and stays with the applicant while she is here.  Otherwise she lives in China.

    d.The applicant’s bail conditions are to report daily to the [Suburb 1] police station, to be at home between the hours of 7:30 pm to 7:30 am except on Wednesdays when she does not need to be home until 10 pm so that she can attend her Wednesday evening class, and to go out after hours only if she is with her guardian.  She also had to surrender her passport and is not allowed to travel overseas.

    e.She has been reporting to the police every day since her release.  The police have not visited her home to check if she is there during curfew hours.

    f.Her mother was her guardian but when she is in China her friend [Mr B] has been approved by the court as her ‘guardian’.  He is her friend.  She knows him because they study together.  She thinks the police had to check his information for him to be approved as her guardian.

    g.She lives in [an] apartment in [Suburb 2].  She has a flatmate, [Mr C], who is also an overseas student.  They are both on the apartment lease and pay rent.  [Mr C] transfers his rent money to the applicant and she transfers it to the agent.

    h.She attends classes four days a week.  She often studies in the library. She does not use drugs.

    i.She is not working.  Her parents send her money to support her.  They have a  [company] in China. They are financially comfortable.  They like to travel.  They are both aware of her criminal charge matter.  When they found out they were very worried.  They keep asking her about her situation in Australia.  She just tells them about the court developments and her upcoming trial in December. She told them her visa was cancelled.

    j.Because she does not have a visa she cannot enrol in her second semester of study. She thinks she does not have a Bridging visa. Her Agent is trying to obtain a Bridging visa for her.  She has to obtain her identity documents from China to be able to apply for the visa.

    k.She has no relatives in Australia.  She has friends here.  They are students who study with her.  Her current friends have no problems with the police or drugs.  They socialise together and play computer games. On weekends they might go to the city for meals and to the cinema, or play pool.

    l.She is studying at [Institution 1].  Her subjects include [details deleted]. She is in the second year of a three year [course].

    m.Her mother is returning to Australia in July or August for a few months. Her mother has not much to do while she is here. They mainly go shopping together. Her mother cooks but is bored in Sydney.  She doesn’t speak English. Before the incident she did not come to Australia often.  The applicant was able to visit China four times a year, but now she can’t.  Her mother is worried so comes to Australia to be with the applicant. 

    n.The accused man was the applicant’s de facto.  He has not been granted bail. About a few months ago he appeared in court by video link.  The applicant has had no contact with him since her arrest. This is one of her bail conditions. Even if it wasn’t a bail condition she would not contact him because she blames him for what has happened to her.

    o.At the hearing the applicant submitted a character representative from  a student official, her reporting acknowledgements from the police, and copies of her bank account statements.

    p.The Tribunal discussed the contents of the bank account statements with the applicant, noting they disclosed numerous large cash transactions, deposits and withdrawal, including some conducted at ATMs at [Venue 1] in Sydney.  The applicant responded she could only identify a few of the transactions and did not readily recall the purpose of most large transactions.  She also stated that she had eaten at restaurants with friends at [Venue 1].

    q.The Tribunal asked her why her bank account was a joint account in her and her ex de facto’s names.  She responded she had been unable to have her ex de facto removed from the account.

11. On 31 July 2019 the applicant submitted a copy of her bank statements with some handwritten notations against a small number of transactions, an enrolment advice from [Institution 1], a letter from a person stating he borrows money from the applicant, and some [social media] messages describing purchases.

12. On 2 August 2019 the applicant submitted a statement as to why she has not closed the joint bank account she holds with her ex-de facto; letters from two friends who state they borrow sums such as $500 from the applicant and like to eat at good expensive restaurants; a character reference form her mother’s friend.

13. On 26 August 2019 the applicant’s Agent informed the Tribunal that the applicant had been granted a Bridging Visa E and attached a copy of the visa grant.

14. On 16 December 2019 the Tribunal wrote to the applicant asking her to please provide an update to the Tribunal about the court proceedings against her.

15. On 20 December 2020 the applicant’s Agent advised the Tribunal that the applicant’s next court appearance would be [in] February 2020 for sentencing.

16. The applicant appeared again before the Tribunal on 23 January 2020. The following is a summary of the information provided by the applicant at the hearing:

    a.At her last Court appearance in December 2019 she pleaded guilty to the charge  of ‘take part in the supply of a prohibited drug – large commercial quantity’.  The matter was heard in [Court 2].  Sentencing will take place at the Court [in February].

    b.Under her lawyer’s advice, she is not prepared to provide any more information about her court matter to the Tribunal. The applicant’s Agent informed the Tribunal that the applicant’s criminal lawyer was currently in discussions with the prosecution regarding a potentially positive outcome for the applicant.  Therefore he or she advised the applicant not to speak about the matter to the Tribunal so her would options not be prejudiced.

    c.Her bail conditions remain unchanged.

    d.The Tribunal asked the applicant to please provide more details about the numerous cash transactions of large sums of money that appear on the bank statements she submitted to the Tribunal, including several conducted using the [Venue 1] ATM.  The applicant was resistant to this request but she eventually agreed to try to do so after the hearing. She complained that most overseas students transfer large amounts of money between themselves to avoid currency conversion difficulties so the Tribunal should not be concerned about these transactions.  When the Tribunal asked her about several large sums she could provide no details apart from one or two she could attribute to gifts from her parents, passed to her through third persons.

    e.The Tribunal requested the applicant to provide more information about her criminal matter and the sentencing, particularly any sentencing reports or other reports relied upon, following her sentencing [in] February 2020. The applicant’s Agent undertook to do so within two weeks of the sentencing.

17. On 19 February 2020 the applicant’s Agent sent a message by email to the Tribunal attaching what he described as the applicant’s “sentencing report”.  He wrote that he was still awaiting instructions before being able to provide anything further.  The  attached document is an “Intensive Correction Order” under section 7 of the Crime (Sentencing Procedure) Act 1999.  It sets out the following (in summary):

    -     The order is dated [February] 2020 and was made in [Court 1].

    -     The applicant is named as the offender.

    -     The offence is described as “Take part supply prohibited drug >= large commercial qty-SI (Certified)”.

    -     Term of Sentence is two years, commencing [February] 2020 and expiring [February] 2022.

    -     ‘… imprisonment is to be served by way of intensive correction in the community in accordance with the section 7 Crime (Sentencing Procedure) Act 1999.’

    -     The intensive correction order is subject to the following standard conditions:

    §   The applicant must not commit any offences.

    §   The applicant must report to a Community Corrections Officer (‘CCO’) on the day of the order if the order has a home detention or electronic monitoring condition.

    §   The applicant must report to a CCO at the times and places directed by the officer.

    -     The intensive correction order is subject to the following additional conditions:

    §   The applicant must submit to electronic monitoring for the period of the intensive correction order.

    -     The applicant is liable to pay the Victims Support Levy.

    -     She must comply with all reasonable directions from a CCO about:

    §   the place she will live.

    §   participating in programs, treatment, interventions or other related activities.

    §   participating in employment, education, training, or other related activities.

    §   not undertaking specified employment, education, training, volunteer, leisure or other activities.

    §   not associating with specified people.

    §   not visiting or frequenting specified places or areas.

    §   ceasing drug use.

    §   ceasing or reducing alcohol use.

    §   drug and alcohol testing.

    §   monitoring her compliance with the order.

    §   giving consent to third parties to provide information to the officer that is relevant to her compliance with the order.

    -     She must comply with any other reasonable directions from a CCO.

    -     She must permit a  CCO to visit her where she lives at any time and to enter the premises.

    -     She must notify a CCO if she changes address, contact details, or employment within 7 days of the change occurring.

    -     She must not leave NSW without permission from a Community Corrections Manager.

    -     She must not leave Australia without permission from the State Parole Authority.

    -     She must comply with all reasonable directions from a CCO or electronic monitoring officer about electronic monitoring.

    -     She must not remove, tamper with, damage or disable her electronic monitoring equipment.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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?

    s.116(1)(e) - risk to Australian community or individual

19. 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].

20. 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.

21. The Tribunal found the applicant somewhat evasive and uncooperative during her Tribunal hearings and in response to requests by the Tribunal to provide further information. The Tribunal acknowledges this would in part be understandably attributable to her concern about self-incrimination or prejudicing a live criminal proceedings against her.  However there were also matters, not directly related to the charges against her in which she appeared to make little effort to provide detail or meaningful responses.

22. Therefore there is only limited information before the Tribunal on which to assess the applicant’s risk to the safety of others in the Australian community.

23. The Tribunal put to the applicant its concerns that the large cash transactions revealed in her bank statements could indicate that she had not distanced herself from unlawful behaviour and risky environments.  However the applicant largely would not, or could not, provide information to allay concerns. The applicant mostly repeated that large sum cash transactions were normal for overseas students. She indicated some annoyance at being asked to explain such matters.  The Tribunal found the applicant’s reactions unhelpful to communication and discussion.  Despite her undertaking at the last hearing to try to make more effort to recall the purpose for the transactions and to inform the Tribunal in writing of any she could identify, she has not provided anything further to the Tribunal.

24. The applicant provided some evidence of having a changed and stable lifestyle following her arrest, by breaking off contact with her former de facto, concentrating on her friends and study, maintaining a low-key lifestyle and having her mother stay with her for significant periods of time.  However she was not able to substantiate the genuineness of these changes or their remedial effects, so that doubts remain.  Her friends were not particularly impressive witnesses and the information they provided was often vague and unclear.

1. In view of the above, the Tribunal remains somewhat concerned about the applicant’s ongoing conduct and behaviour. There are some indications that her lifestyle may still reflect an involvement in potentially unlawful activity.  The Tribunal is not making a finding that the applicant is so involved.  It is merely trying to assess the possibility of risk the applicant presents. Without the applicant’s reasonable cooperation, the information before the Tribunal is quite limited. Under the relatively low threshold set by s.116(1)(e) of the Act, the Tribunal would possibly have been satisfied that the applicant’s presence ‘may’ be a risk to the safety of the Australian community.

2. However the Tribunal places significant weight on the Intensive Corrections Order (‘ICO’) and its impact upon the likelihood of risk presented by the applicant.  In particular the Tribunal considers that the requirement for the applicant to submit to electronic monitoring greatly reduces the chances she could involve herself in any further unlawful activity.  The other requirements placed upon the applicant by the ICO further reduce the potential for her to engage in unlawful behaviour or to pose a risk to the safety of others.

3. Section 7 of NSW’s Crime (Sentencing Procedure) Act 1999 states:

   Intensive correction orders

   (1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.

   (2) If the court makes an intensive correction order directing that a sentence of imprisonment be served by way of intensive correction in the community, the court is not to set a non-parole period for the sentence.

   (3) This section does not apply to an offender who is under the age of 18 years.
   (4) This section is subject to the provisions of Part 5.

4. The Tribunal notes that s.66(1) of the NSW Crime (Sentencing Procedure) Act 1999 sets out that  “community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.”  The Tribunal therefore acknowledges that the judge’s decision to make the ICO was based upon paramount considerations of community safety. The Tribunal gives this weight in the applicant’s favour in assessing the potential risk the applicant presents.

5. Under the NSW Crimes (Administration Of Sentences) Act 1999 it is the Parole Authority which may revoke or vary the conditions imposed under the ICO [s.81].  If a condition of an ICO is breached by an offender the Parole Authority can, amongst other powers, suspend the ICO and issue a warrant for the offender's arrest so that the police will arrest the offender who would then serve the rest of the sentence in jail [s.91]. 

6. The Tribunal therefore acknowledges that there are sufficient powers and safeguards available to the NSW criminal justice system to substantially restrict the applicant’s ability to re-offend.  Further, the Tribunal considers that the threat of a jail sentence for any breach of the ICO would likely be a significant deterrent to her, and compel her to be compliant and law abiding in Australia.

7. In view of the serious and restrictive conditions of the ICO, and the ensuing powers given to justice enforcement officials in NSW, the Tribunal considers that the risk of the applicant re-offending in Australia is negligible or remote.

8. For these reasons the Tribunal is not satisfied that the applicant’s presence in Australia may be a risk to the safety of the Australian community. The Tribunal is therefore 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.

9. The Tribunal notes that other grounds for cancelling the applicant’s may arise, in light of her criminal conviction, such as the s.116(1)(g) ground, pursuant to regulation 2.43(oa). However the department has not enlivened a cancellation under this ground. The two grounds are quite distinctive and the Tribunal acknowledges that the applicant has not had a full opportunity, via the processes established at the primary level, to be provided with particularised notice of such a ground and an adequate opportunity to respond. Available information relevant to cancellation under this ground is also very limited. It is the Tribunal’s view that its consideration is therefore confined to considering cancellation under s.116(1)(e).

   DECISION

10. 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