2302567 (Migration)

Case [2023] AATA 1946

2302567 (Migration) [2023] AATA 1946 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Eric Zhang

CASE NUMBER:  2302567

DEPUTY PRESIDENT:  Antoinette Younes

DATE:7 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 07 March 2023 at 12:34pm

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant convicted of an offence and imprisoned – relationship with an Australian citizen – financial hardship – mental health issues – indefinite detention – non-refoulement obligations – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 36, 116, 140, 189, 198, 359, 499; Ministerial Direction 63
Migration Regulations 1994, Schedule 8, Condition 8564; rr 1.12, 2.43

CASES

ACH15 v MIBP [2015] FCCA 1250
Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195
CGG15 v MIBP [2016] FCCA 219
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
R v Budiman (1998) 102 A Crim R 411
WKMZ v MICMSMA [2021] FCAFC 55

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 14 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

  2. The delegate cancelled the visa under s 116(1)(g) on the basis that the applicant was charged with drug-related offences. 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 2 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from his partner, [Partner A].  The Tribunal hearing was conducted with the assistance of an interpreter.

  4. The applicant was represented in relation to the review.

  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)(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?

    Section 116(1)(g) - prescribed ground

  7. 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…

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2302567 (Migration) [2023] AATA 1946
Case
[2023] AATA 1946
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Bridging E (Class WE) visa was cancelled. The cancellation was based on the applicant being charged with and subsequently convicted of importing a commercial quantity of opium. The applicant had sought to have this cancellation decision reviewed by the Tribunal, presenting various personal circumstances and submissions in support of his application.

The primary legal issue before the Tribunal was whether the delegate's decision to cancel the applicant's visa under section 116(1)(g) of the Migration Act 1958 (Cth), read with regulation 2.43(1)(p)(ii) of the Migration Regulations 1994, should be affirmed. This involved determining if the prescribed ground for cancellation, namely being charged with a serious offence, was made out, and if so, whether the visa cancellation was appropriate in all the circumstances. The Tribunal also had to consider the weight to be given to various primary and secondary considerations, including the applicant's personal circumstances, the seriousness of the offence, and government policy regarding visa cancellations for such offences.

The Tribunal reasoned that the ground for cancellation was clearly established, as the applicant had been convicted of importing a commercial quantity of opium, a serious offence. While acknowledging the applicant's claims of not knowing the exact nature or quantity of the drugs, the Tribunal noted that the Crown submissions on sentence indicated the applicant was reckless as to the presence of a border-controlled drug and played a significant role as a trusted intermediary. The Tribunal applied the principles outlined in the Direction, giving greater weight to primary considerations, including the government's view that prescribed grounds for cancellation should be applied rigorously. Despite considering the applicant's personal circumstances, such as his relationship with an Australian citizen, financial hardship, mental health issues, and claims of potential harm if returned to Iran, the Tribunal found that these did not outweigh the seriousness of the offence and the need for visa cancellation.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 050 (Bridging (General)) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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?Section 116(1)(g) - prescribed ground 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 reg 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, ground in reg 2.43(1)(p)(ii) is relevant.Regulation 2.43Grounds for cancellation of visa (Act, s 116)(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 the following:….(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa that the Minister is satisfied that the holder:…(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country. In support of the application for review, the applicant provided to the Tribunal parts of the delegate’s decision record which indicate that [in] November 2017, the Department received information from the NSW Police that the applicant had been charged with:·Importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.1(1) of the Criminal Code (Cth) Law Part Code: 58454; and·Attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.5(1), by virtue of subsection 11.1(1) of the Criminal Code (Cth) Law Part Code: 41445/58468. The Departmental file contains a full copy of the delegate’s decision record, which shows that in response to the Notice of Intention to Consider Cancellation (NOICC), the applicant stated that he was not guilty of the charges and that he had not yet been convicted. He made submissions that if forced to return to Iran, he would be executed, that he would have no one to support him, his mother is unwell and his father is unable to work, and that his brother went to [Country 1] due to debt. Material provided to the Tribunal The applicant provided to the Tribunal submissions by his representative, and copies of documents including:·Applicant’s Statutory Declaration dated 1 March 2023, setting out his background, the negative impacts of performing compulsory military service in Iran (e.g. finding human bones and skeletons), the intimate relationship he had with a female in Iran which caused him to flee to avoid harm, sending money to his family to provide financial support, his lack of knowledge concerning the drug importation (he did not know that drugs were being imported), his struggle with alcohol misuse, his Christian faith, the courses (copies of certificates attached) he has undertaken, and the distress he suffered as a result of a recent suicide of [a] detainee.·Statement of Facts relating to the offence of Importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.1(1) of the Criminal Code (Cth).·Crown Submissions on Sentence, dated [in] May 2019, concluding that “…having regard to the objective seriousness of the offender’s conduct, the need for general deterrence and comparable cases, the only appropriate sentence is a significant period of full-time imprisonment…”.[1][1] Crown Submissions on Sentence dated [in] May 2019, para 63.·[Court 1] sentencing outcome and Advice of Court result, showing that the applicant was convicted of the offence of Importation of a Commercial quantity of an unlawfully imported border controlled drug and that he received a sentence of eight years, commencing [in] October 2017 and expiring [in] October 2025. The sentence includes a non-parole period of five years commencing [in] October 2017 and expiring [in] October 2022, and a balance of the term of three years imprisonment commencing [in] October 2022 and expiring [in] October 2025. ·Psychological Report of [Psychologist A] to the Court, dated 9 May 2019, referring to, among other things, the applicant’s clinical assessment of Moderate depression, and Normal scores on the anxiety and stress subscales. Relevantly, the psychologist noted that the applicant presents a low risk of similar re-offending, and expressed concerns about ongoing incarceration, which is likely to exacerbate the applicant’s “social isolation, and the depressive symptoms he is experiencing”.[2][2] Psychological Report of [Psychologist A] dated 9 May 2019, p7.·Statement of [Sister A] (applicant’s [sister]) to the Court dated 13 May 2019, referring among other things, to the applicant’s mother having a heart attack upon hearing about the applicant’s arrest, and to the family’s good name in Iran.·Statement of [Cousin A] (applicant’s cousin) to the Court dated 13 May 2019, referring among other things to the applicant sending money to his family in Iran.·Statement of the applicant to the Court providing a summary of his background. The applicant referred to him never using drugs and his negative views about drug use. ·Certificate of Baptism, showing the applicant’s baptism date [in] 2021 at [Prison 1].·Statement of [name] [Prison 1’s] catholic chaplain to the Court, dated 23 February 2022, referring among other things, to the applicant’s good work ethic.·Statement of [name] (applicant’s former employer) to the Court dated 22 February 2022 May 2019, referring among other things to the applicant as reliable, punctual and a hardworking employee.·Statutory Declaration dated 28 February 2023 from [Partner A], among other things, referring to the applicant being her partner and that they commenced an intimate relationship towards the end of 2020. She expressed her support for the applicant and willingness to provide financial assistance. She attached copies of her [Bank 1] account.·Statement dated 1 March 2022 from [Partner A] referring to the applicant being her partner and her willingness to provide him with support including financial support. ·Statutory Declaration of [name] (former work colleague) dated 1 March 2022, expressing willingness to assist the applicant ([Bank 1] account details attached).·Statutory Declaration of [name] (former work supervisor of the applicant) dated 28 February 2023, offering assistance to the applicant including in finding work.·Statement of [name] (former work colleague of the applicant), dated 28 February 2023, offering assistance to the applicant and support in finding employment.·Case Notes Report from NSW Department of Corrective Services from May 2019 to May 2022, referring to the applicant’s compliance with correctional centre routines, positive conduct and behaviour during his incarceration.·Multiple publications relating to the adverse impacts on detainees.·Determination of parole applications for Robert Hughes (convicted child sex offender), and Fiona Barbieri (convicted of manslaughter of Det. Ins. Bryson Anderson).[3][3] These are unrelated matters.

Decision

Reasons for decision

The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.Antoinette YounesDeputy President

Ratio Decidendi

Legal Principle Established

The Direction states that primary considerations should generally be given greater weight than secondary considerations. One primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.The primary considerations are:The Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation. The applicant was charged and is now convicted of importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium. The applicant accepts that this is a serious offence. He accepts that there is an adverse impact of illicit drugs on the Australian community. He expressed remorse and apologised for his unlawful conduct. He reiterated that he was not aware of the nature of the imported item. The Tribunal observes that in the Crown Submissions on Sentence provided to the Tribunal, it is noted that the applicant “…imported [amount] grams of opium. Under the Criminal Code Regulations 2002, the marketable quantity threshold for opium is 20 grams and the commercial quantity threshold is 20,000 grams. The amount of drug imported by the offender was approximately [amount] times the commercial quantity…The offender knew the importation involved a large piece of machinery and knew the size and approximate weight of the machinery. Whilst there is no evidence he knew the exact amount of drug to be imported it must be inferred that he knew it was a substantial importation given the size of the machinery it was being smuggled in…The Crown concedes that the offender was reckless as to the presence of a border controlled drug in the consignment and he did not have specific knowledge of which border controlled drug was being imported or the amount…”.[4][4] Crown Submissions on Sentence dated [in] May 2019, paras 18, 20, and 21. Citing R v Budiman,[5] the Crown submitted that the superior Courts have “…repeatedly stated that illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles. It is a well-established sentencing principle that persons who participate in the illicit drug trade, at any level, should expect and receive, heavy penalties…the Offender was a trusted intermediary who performed a critical role. The role the offender performed was a significant and essential one in the importation of the drugs into Australia...”.[6][5] R v Budiman (1998) 102 A Crim R 411.[6] Crown Submissions on Sentence dated [in] May 2019, paras 11-12. In submissions to the Tribunal, the representative argued that…the process of construing the Direction is no different to that to be applied in respect of any other written document”: ACH15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 1250 (ACH15) at [18]. Thus, paragraph 6.1 is to be construed “by reference to the language of the instrument viewed as a whole”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) applying Cooper Brookes (Wollongong) Pty Ltd v FederalCommissioner of Taxation (1981) 147 CLR 297 at 320 (Mason and Wilson JJ).It follows that the proper construction and application of paragraph 6.1 requires reconciliation with principle 4.3(6) of the Direction which involves taking into account the particular circumstances of the individual. The spirit of this principle has long been recognised by administrative-decision makers who appreciate “the very important role of the Tribunal in ensuring that individual justice is done”: Robey v Civil Aviation Safety Authority [2021] AATA 854 at [28]; Rent to Own (Aust) Pty Ltd and Australian Securities and Investment Commission [2011] AATA 689 at [41]-[44].It should also be noted that the word “rigorously” as used in paragraph 6.1 “is addressed solely to the question of whether to enter into consideration of cancelling the visa”: ACH15 v Minister for Immigration & Anor [2015] FCCA 1250 at [28]. It would be a constructive failure to exercise jurisdiction if this Tribunal were to proceed on the view that the power “to cancel should be exercised rigorously, that is strictly”: ACH15 at [31]. The Tribunal’s exercise of the discretion must take into account the Australian Government’s view that the grounds for cancellation should be applied, rigorously, as part of the matters to be considered, rather than simply to follow that view: 2212473 (Migration) [2022] AATA 3343 applying ACH15 at [33].[7][7] Submissions of 1 March 2023, paras 5-6.