1934409 (Migration)

[2020] AATA 1266

1934409 (Migration) [2020] AATA 1266 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1934409

MEMBER:Nathan Goetz

DATE:8 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2020 at 12:46pm

CATCHWORDS
MIGRATION – cancellation – Bridging C (Class WC) visa – Subclass 030 (Bridging C) – criminal conviction – conditional release order – no response to agent’s or tribunal’s communications – no appearance at hearing – vague and unsupported claims in applicant’s response to notice of intention to consider cancellation of visa – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(g), 362(1A)(a)

Migration Regulations 1994 (Cth), r 2.43(1)(oa)

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 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 applicant is a citizen of Malaysia. He arrived in Australia [in] November 2017 as the holder of an electronic travel authority visa. On 5 April 2018 the applicant applied for a protection visa and was granted a bridging visa on 26 April 2018 to regularise his migration status in Australia while his protection visa application was being considered. It is this bridging visa that is the subject of the Tribunal’s decision.

3. A delegate refused to grant the protection visa on 24 July 2018. The applicant applied to the Tribunal on 8 August 2018 for a review of the decision to refuse the protection visa: case 1822916. This matter has not yet been decided by the Tribunal.

4. On 7 November 2019 the delegate sent to the applicant a ‘Notice of Intention to Consider Cancellation’ (NOICC) of the applicant’s Bridging C visa. The NOICC advised the applicant that it appeared grounds for cancellation of the Bridging C visa existed to warrant cancellation under s.116(1)(g). This provides that the Minister may cancel a visa if the Minister is satisfied that prescribed grounds existed for cancelling the visa.

5. Regulation 2.43(1)(oa) of the Migration Regulations 1994 provides that for the purposes of s.116(1)(g) of the Act, prescribed grounds are that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory.

6. The NOICC detailed that the applicant had been convicted at the [a] Local Court in NSW of the offence of supply of prohibited drugs less than or equivalent to a small quantity and had been sentenced to a condition release order with conviction for 12 months commencing [in] October 2019 concluding [in] October 2020. This order included a requirement that the applicant be supervised by the Community Corrections Service.

7. Given this offending, the delegate indicated that it appeared that prescribed grounds existed to cancel the Bridging C visa. The NOICC invited the applicant to show why the grounds for cancellation did not exist or to give reasons why the Bridging C visa should not be cancelled.

8. The applicant responded to the NOICC on 15 November 2019. He noted that he cannot return to Malaysia and wanted to start a new life in Australia. Dangers remain for him in Malaysia. He had made good friends in his local community and had been in a romantic relationship for one year and also had a pet puppy. He helps in his local community volunteering at a community centre and a café, participates at local shows and bush clearing. He has been offered employment but has not accepted this because to do so would be a breach of his Bridging C visa conditions. He acknowledged that he had made a poor decision to sell marijuana and did so because he did not want to break his visa conditions. The Tribunal understands that to mean that he did so because he could not work and needed money. The applicant wrote that he thought marijuana was acceptable in his local community and noted that when he first arrived there the town seemed to sell smoking tools and to promote marijuana. Unsurprisingly to the Tribunal, the local community is [Town 1]. The applicant wrote that he now realises marijuana is wrong and he has taken steps to correct his past behaviour. The applicant wrote that he had not broken any of his other visa conditions, is a trained chef and would like to be able to work in Australia.

9. On 26 November 2019 the delegate cancelled the Bridging C visa. The cancellation decision notes that the delegate had considered the applicant’s response of 15 November 2019. The delegate was satisfied that the prescribed grounds for cancellation existed and despite what the applicant had submitted, the grounds for cancelling the Bridging C visa outweighed the reasons not to cancel the visa. Accordingly, from that point onwards the applicant became an unlawful non-citizen in Australia.

10. On 4 December 2019 the applicant applied to the Tribunal for a review of the cancellation decision. His application for review form indicated that he was represented by [Mr A], registered migration agent [number]. The applicant selected that all correspondence was to be sent to his migration agent.

11. On 10 March 2020 the Tribunal wrote to the applicant via his migration agent and invited him to attend a hearing a two hour hearing commencing at 12noon at the Sydney registry of the Tribunal. The hearing invitation noted that if the applicant did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear, or may dismiss the review application without any further consideration of the information. The invitation included a ‘Response to hearing invitation’ form which the Tribunal requested be completed and returned.

12. On 11 March 2020 the migration agent contacted the Tribunal and advised that they were unable to locate the applicant and could not contact him. The agent had made attempts to contact him by emails and telephone calls without success and the person who engaged the migration agent on behalf of the applicant had told the migration agent that they are no longer in contact with the applicant. The agent wrote that as he had no instructions from the applicant it would be prudent for him to cease acting for the applicant.

13. On 12 March 2020 the Tribunal wrote to the applicant via his migration agent and asked the applicant to complete either a new form appointing a new representative or a new authorised recipient or a new form providing a change in contact details. In the absence of a new form, the Tribunal would continue to send correspondence to the applicant’s migration agent, because the applicant had selected his migration agent as his authorised recipient. No form changing the authorised recipient or applicant’s contact details was ever received by the Tribunal.

14. On 27 March 2020 the Tribunal sent a letter to the applicant via his migration agent to advise that due to the COVID-19 pandemic, his hearing would now proceed as a telephone hearing. This letter was sent by email to the migration agent and was also sent to the applicant’s email address that had been provided in the review application form. The letter included another ‘Response to hearing invitation’ form and also asked the applicant to confirm his attendance by telephone or indicate if he would have difficulty communicating with telephone, to advise whether his telephone number had changed, and to provide telephone numbers of any witnesses he wished to call at his hearing.

15. The same day, the migration agent responded to the letter. He advised that he did not have ongoing instructions and he was withdrawing his representation in relation to the review and directed the Tribunal to his last email.

16. On 30 May 2020 the Tribunal wrote to the migration agent and confirmed that as the migration agent was the authorised recipient, the Tribunal was required by law to continue to send the applicant’s correspondence to the migration agent until the applicant advised otherwise. The Tribunal directed the migration agent to its earlier letter of 12 March 2020.

17. On 1 April 2020 the Tribunal sent a text message to the mobile phone the applicant had nominated in his review form as his mobile phone number to remind him of the Tribunal hearing. The message read:

    Reminder - Your AAT hearing is on 08/04/20. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.

18. There is no evidence that this message failed to send.

19. On 7 April 2020 the Tribunal sent another text message to the same number. The message read:

    Reminder - Your AAT hearing is on 08/04/20. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.

20. There is no evidence that this message failed to send.

21. On 8 April 2020 the migration agent wrote to the Tribunal noting that the applicant was scheduled to appear at the Tribunal hearing that day. The migration agent noted that they did not have instructions from the applicant and could not appear at the hearing. The migration agent had tried to contact the applicant but all attempts had been futile.

22. On 8 April 2020 at 12 noon the Tribunal called the applicant on his mobile telephone without success. The Tribunal contacted the applicant again at 12.30pm on his mobile telephone without success. The applicant did not appear at the Tribunal hearing, nor did the applicant physically attend the Sydney registry. The Tribunal registry maintains a building concierge service on the ground floor and there are signs posted in the foyer directing any person who was attending the Tribunal to speak to the concierge. There is no evidence of the applicant physically attended the Sydney registry as an alternative to being contactable by telephone.

23. There has been no explanation as to why the applicant failed to attend the Tribunal hearing. The Tribunal is satisfied that the applicant was properly notified of the Tribunal hearing by invitation to his authorised recipient. The Tribunal is satisfied that the migration agent has advised the applicant of the hearing as claimed in his correspondence, and the Tribunal ensured that the applicant was aware of the Tribunal hearing as it emailed him on 27 March 2020, sent him two SMS reminder messages, and called the applicant twice. The applicant has not contacted the Tribunal to explain why he could not attend the Tribunal hearing and has not sought a postponement of the Tribunal hearing. Given this, the Tribunal has decided to exercise its powers under s.362B(1A)(a) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

24. 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

25. 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)(g). 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?

26. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(oa) is relevant as outlined above.

27. The evidence before the Tribunal is that the applicant has been found guilty of a NSW drug offence. The Tribunal is satisfied that the term ‘conviction’ as provided in the Regulation means a finding of guilt. The applicant is his response to the NOICC did not dispute his criminal history. The Tribunal is satisfied that this ground is made out.

28. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

29. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

30. The Tribunal has considered the applicant’s written response to the NOICC and has ultimately concluded that the reasons to not cancel the Bridging C visa do not outweigh the grounds for cancellation for the following reasons.

31. The Tribunal makes this finding while acknowledging that there is no evidence to suggest that that the applicant breached any other conditions of his Bridging C visa, and acknowledging that there is no evidence of the applicant demonstrating past or present poor behaviour behaviour towards the Department. However, in the context of the applicant’s criminal charge, the Tribunal cannot give those matters significant weight.

32. The circumstances of the offending are serious. Drug supply is not a trivial matter. It is trite to acknowledge that drugs do untold damage to the Australian community. Further, the offending the applicant has engaged in is not a mere possession charge. It is in fact a supply charge, meaning that the applicant has engaged in the distribution of drugs to another person. The applicant’s written response indicates that he sold marijuana for money because he could not work, and the fact that there is commerciality involved in the offending aggravates the context of the criminal offending in the Tribunal’s view. While the Tribunal acknowledges that the applicant indicates that he is remorseful for his conduct, this does not reduce the serious of the offending. In addition, the applicant has not provided any evidence about the steps he has taken to correct his behaviour. His claimed steps are mere assertions. Had he engaged in steps to correct his behaviour, such as drug rehabilitation, the Tribunal is confident that he would have supplied documents to support his efforts.

33. The Australian community has a reasonable expectation that people who come to Australia not engage in criminal activity. There is an expectation that those who engage in criminal activity while they are on visas should have action taken against their visas. The charges which give rise to the ground for cancellation weigh strongly in favour of cancelling the Bridging C visa.

34. The Tribunal has considered what may flow from the decision to cancel the Bridging C visa. Those consequences are already apparent, as the applicant’s Bridging C visa was cancelled on 26 November 2019 and resulted in the applicant becoming an unlawful non-citizen. An unlawful non-citizen is liable to immigration detention, deprived of their liberty to remain in the Australian community, and ordinarily must be removed from Australia. However, immigration detention is not a punitive measure. It is an administrative action designed to regularise the immigration status of an unlawful non-citizen. The decision to uphold the cancellation decision may also mean that the applicant is subject to s.48 of the Act, which prohibits him from applying for further visa while he is in Australia’s migration zone. That being acknowledged, the applicant has an ongoing protection visa application before the Tribunal, and upholding the cancellation decision will not result in the applicant being unable to pursue this application at the Tribunal. The Tribunal gives the fact that the applicant may be liable to immigration detention and prohibited from applying for further visas no weight as a reason to not cancel the Bridging C visa.

35. The Tribunal has also considered whether the decision to cancel the Bridging C visa will result in Australia breaching its non-refoulement obligations under the Refugee Convention by removing the applicant from Australia. The applicant applied for a protection visa on 5 April 2018 and a decision as to whether Australia owes the applicant protection obligations has not yet been determined. The Tribunal does not accept that the applicant would be removed from Australia to Malaysia, a place he claims to fear returning, as a consequence of the cancellation decision. Section 198(5A) of the Act provides that an officer must not remove an unlawful-non citizen if the applicant has made a valid protection visa application and that application has not finally been determined. Accordingly, Australia will not be in breach of its international obligations by cancelling the Bridging C visa. The fact that Australia will not breach these obligations is a factor that weighs in favour of the decision to cancel the visa.

36. The applicant has not claimed, and there is no evidence of either any consequential cancellations that may occur to another person as a result of the decision to cancel the applicant’s Bridging C visa, nor is there any evidence that that applicant has any children or is a member of the family unit which may result in Australia being in breach of its obligations as a signatory to the Convention on the Rights of a Child. The applicant’s claims that he has a girlfriend are vague and do not establish that she is a member of the applicant’s family unit. Accordingly, the Tribunal gives these matters no weight when deciding whether or not to cancel the Bridging C visa.

37. When considering the applicant’s response to the NOICC, the Tribunal does not accept that his claimed volunteer work at a community centre, café and helping people at local shows and bush clearing are matters that the Tribunal can place any reliance. The applicant has not provided any letters of support from the community centre, café or any other person to attest to his involvement in the community as a reason to not cancel the Bridging C visa. Those claims are mere assertions and not supported by evidence from those organisations or individuals. The Tribunal places no weight on the applicant’s claimed good works as a reason to not cancel the Bridging C visa. Nor does the applicant’s ownership of a puppy act as a persuasive factor to not cancel the applicant’s Bridging C visa.

38. The Tribunal has considered all the information before it. The Tribunal is not satisfied that the reasons to not cancel the Bridging C visa outweigh the grounds for cancellation.

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

    DECISION

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

    Nathan Goetz
    Member