2101698 (Migration)

[2021] AATA 2759

2101698 (Migration) [2021] AATA 2759 (12 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101698

MEMBER:Kira Raif

DATE:12 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 12 May 2021 at 3:03pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground of cancellation – convicted of an offence – possess and supply prohibited drug – consideration of discretion – pending outcome for visa application – presence of partner in Australia – circumstances in which the ground for cancellation arose – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

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 8 February 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Taiwan, born in [year]. He was granted a Bridging A visa on 29 January 2019. On 11 January 2021 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling the visa under s. 116 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 8 February 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 12 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Relevant law

4. 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.

5. 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. It states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (oa)in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa – that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Does the ground for cancellation exist?

6. The Department received advice from NSW Police that the applicant had been convicted of the following offences at [a] Local Court:

24/11/20	Possess prohibited drug	Fine $250
24/11/20	Supply prohibited drug <= small quantity	Community corrections order 12 months (24/11/20 – 23/11/21)
24/11/20	Possess prohibited drug	Community corrections order 6 months (24/11/20 – 23/5/21)
24/11/20	Supply prohibited drug <= small quantity	Community corrections order 6 months (24/11/20 – 23/5/21)
24/11/20	Supply prohibited drug <= small quantity	Community corrections order 6 months (24/11/20 – 23/5/21)
24/11/20	Possess prohibited drug	Conditional release order – conviction 6 months (24/11/20- 23/5/21)
24/11/20	Supply prohibited drug <= small quantity	Community corrections order 12 months (24/11/20 – 23/11/21)
17/11/20	Supply prohibited drug – 4 counts	Taken into account on Form 1
17/11/20	Possess prohibited drug – 3 counts	Taken into account on Form 1

1. Having regard to that evidence, the Tribunal finds that the applicant has been convicted of offences in the state of NSW. The Tribunal finds that the applicant was a holder of a Bridging A visa, which is a temporary visa other than a Bridging Subclass 050 and Subclass 051 visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

2. 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

3. 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’.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

4. The applicant told the Tribunal that he had been oppressed in Taiwan and his family had borrowed a lot of money so he could come to Australia where he can earn the money and repay the loan.

5. The applicant had been granted the Bridging visa to enable him to remain in Australia to await the outcome of the application for the substantive visa and the applicant’s evidence to the Tribunal is that this application remains unresolved. The Tribunal is mindful that this is a separate and independent process and the assessment of the applicant’s claims for the substantive visa would be entirely unaffected irrespective of the outcome of the present review. The Tribunal acknowledges that the applicant is fulfilling the purpose of his bridging visa if his application for the substantive visa has not been finally determined. The Tribunal also acknowledges that the presence of his partner in Australia, and the existence of another visa application, may constitute a compelling need for the applicant to remain in Australia.

   The extent of compliance with visa conditions

6. There is no evidence of any non-compliance with visa conditions.

   Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

7. The applicant’s partner is in Australia and the applicant claims that the cancellation of the visa would lead him to be separated from his partner. In his written and oral evidence to the Tribunal the applicant also states that he does not wish to be separated from his partner and that his partner would be punished for his own offending. As noted elsewhere, that is not the case and the cancellation of the visa would not lead to the separation of the applicant and his partner as the applicant would be permitted to remain in Australia while he awaits the outcome of his application for the substantive visa. The Tribunal does not consider there is any real possibility that the applicant will be removed from Australia before his substantive visa application is finally determined.  

8. The applicant also told the Tribunal that he wants a chance to work and repay his debts. The Tribunal is mindful that the applicant has the right to apply for a Bridging E visa and, if he can establish a compelling need to work, he can be granted permission to work on that visa. The applicant told the Tribunal that his girlfriend has been supporting him financially since his visa was cancelled but he owes her money and must repay her. As the applicant is receiving financial support for his daily expenses and is eligible to make an application for a visa with permission to work, the Tribunal is not satisfied that the cancellation of the visa would cause significant financial hardship to the applicant, although the Tribunal acknowledges that the applicant wishes to work and repay his various debts.

   Circumstances in which ground of cancellation arose.

9. The grounds for cancellation arise because the applicant held a temporary visa and has been convicted of offences in the state of NSW.

10. In his response to the NOICC the applicant states that he pleaded guilty at the earliest opportunity and has shown remorse and it is unlikely that he would commit further offences, which is reflected in the sentence, with the sentencing judge placing weight on the applicant’s good character and unlikelihood of reoffending. In his statement to the delegate the applicant states that he turned to drugs because he was in a very difficult financial situation and had little income. In his statement to the Tribunal of 20 April 2021 the applicant repeats these claims. He described his poor financial situation, stating that he borrowed a lot of money and could not return to Taiwan, where he was threatened by creditors and at the suggestion of friends, started selling marijuana. The applicant expressed remorse for his actions. In oral evidence, the applicant states that he had been sacked from his job due to Covid and experienced hardship, so friends suggested he could sell drugs, which was a quicker way of making money. The applicant expressed regret about his actions.

11. The Tribunal accepts the applicant’s evidence about the circumstances leading to the offending. The Tribunal notes that  the applicant made the decision to engage in criminal conduct as a way of making money quickly. The Tribunal considers the applicant’s willingness to engage in criminal conduct weighs heavily in favour of cancellation.

12. does not consider that the grounds for cancellation arise due to circumstances beyond his control.

13. The applicant told the Tribunal that he likes Australia and wants to live here. The Tribunal acknowledges that evidence but is mindful that the purpose of a Bridging visa is not to enable residence in Australia, it is merely to enable the applicant to await the outcome of his application for the substantive visa. 

    Past and present behaviour of the visa holder towards the department

14. Nothing adverse is known about the applicant’s behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

15. There are no consequential cancellations under s. 140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

16. If the applicant’s visa is cancelled, unless he is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that he would be detained indefinitely and the applicant’s evidence to the Tribunal is that he has been granted another Bridging visa. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period if he is to make an application for a visa offshore and very limited types of visas he may be able to apply onshore.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

17. In his response to the NOICC the applicant states that he is fearful of returning to Taiwan. His partner is also an applicant for a visa and the cancellation of his visa would separate them. The Tribunal considers that submission from the applicant’s representative to be erroneous or misleading. If the applicant has an outstanding application for a substantive visa in Australia, he would be permitted to remain in Australia to await the outcome of that application irrespective of the outcome of the present application. Further, and importantly, the cancellation of the applicant’s bridging A visa will not lead to the applicant being removed from, or having to depart, Australia if there is another application that has not been finally determined. Thus, the cancellation of the Bridging A visa will not lead to the applicant being returned to his home country, nor to his separation from his partner. The Tribunal finds that in such circumstances, the cancellation of the visa will not be in breach of Australia’s non-refoulement obligations and the family unity principles.

18. The applicant told the Tribunal he has no children and it does not appear that the best interests of any children would be affected by the cancellation.

    Any other relevant matters

19. The applicant presented to the delegate and the Tribunal a number of character references. The applicant states that the sentencing judge took into account his good character. The Tribunal accepts that those who prepared the references believe the applicant to be a good person. The Tribunal acknowledges the remarks of the sentencing judge.

20. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant had been a holder of a temporary visa and had been convicted of offences.

21. The Tribunal has formed the view that minimal hardship will be caused to the applicant by the cancellation of the visa because the applicant will be able to remain in Australia awaiting the outcome of his substantive visa application and there is no likelihood of the applicant being removed from Australia and separated from his partner before his substantive visa application is finally determined. Nevertheless, the Tribunal acknowledges there may be some hardship as the applicant would be unable to work unless he is granted another visa with work rights.

22. The cancellation will not result in the breach of Australia’s international obligations because the cancellation of the visa will not result in the applicant being removed from Australia. There are no children who would be affected by the cancellation.

23. The Tribunal has decided to place greater weight on the circumstances in which the ground for cancellation arose. Essentially, the applicant claims that he lost his job, was in need of funds, and decided to sell drugs to earn money quickly. The applicant engaged in criminal conduct, did so intentionally with the aim of financial gain. The Tribunal considers drug offences to be serious, given the potential of drugs to adversely affect the applicant and others. The Tribunal acknowledges the applicant’s expression of remorse and the claim that the offences were at a lower scale of seriousness but has formed the view that insufficient time has passed since the offending to satisfy the Tribunal that there is no risk or reoffending. The Tribunal considers that the circumstances in which the ground for cancellation arises weigh heavily in favour of the cancellation and outweigh other considerations.

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

    DECISION

25. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Kira Raif
    Senior Member