Bassi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 2543

Bassi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2543 (14 June 2022)

Division:GENERAL DIVISION

File Number(s):      2022/2338

Re:Karamveer Bassi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:14 June 2022

Date of written reasons:        13 July 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

...............................[sgnd]...................................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of visa – substantial criminal record – whether another reason for revocation of mandatory cancellation – serious offending – possession of cocaine for distribution at private party – very serious offending but limited commercial purpose ­– interests of minor children in Australia carrying substantial weight – decision made on balance to revoke cancellation

Legislation

Migration Act, 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2119

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

13 July 2022

1. After delivery of my oral reasons, I received a request for written reasons, which I now publish. These are the reasons I delivered orally with minor amendments.

2. This is an application by Mr Karamveer Bassi seeking a review of a decision of the respondent’s delegate. By this decision, the delegate declined to revoke the cancellation of Mr Bassi’s visa[1]. This had earlier taken place mandatorily under section 501(3A) of the Migration Act 1958 (“the Act”). The mandatory cancellation had come about because Mr Bassi had been sentenced to a term of imprisonment of at least twelve months’ duration and, at the time of cancellation, was serving part of that sentence on a full-time basis in jail. I shall describe the offending in due course.

   [1] Identified in the delegate’s reasons as a Class RN Subclass 187 Regional Sponsored Migration Scheme visa: see Ex R1, p.15 at [1].

3. In reaching his or her decision, the delegate was required to apply Direction no. 90, issued under section 499 of the Act. The delegate was first required to verify that Mr Bassi failed the so-called “character test”, as defined. The delegate found that Mr Bassi failed this test because he had a substantial criminal record as defined in section 501(7)(c); namely, he had been sentenced to a term of imprisonment of at least 12 months. As I have indicated, he was also required to serve at least part of that sentence on a full-time basis in jail. Having reached that decision, the delegate was then required to address the question of whether there was “another reason” why the cancellation decision should be revoked: see section 501CA(4)(b)(ii). At this point, the delegate became bound to apply Direction no. 90, which I have already mentioned. Having weighed the discretionary considerations, the delegate concluded there was not “another reason” to revoke the cancellation decision. The cancellation of the visa remained in place as a result of this decision.

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence adduced before me, I, too, must address the two questions the delegate addressed. It was conceded before me – and on my review the concession was properly made – that Mr Bassi fails the character test. The only question of substance before me is whether there is another reason for the cancellation decision to be revoked. Like the delegate, I am obliged to apply Direction no. 90 in deciding my answer to this question.

5. In matters like this, the Tribunal exercises what is known as a de novo jurisdiction, rehearing the matter afresh on the evidence before it. This implies that I may affirm the decision under review notwithstanding an error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review if that is the correct or preferable decision on the evidence, notwithstanding the absence of any discernible error in the delegate’s reasons. At the hearing before me, Ms Marmarot appeared for the applicant; Ms Allen, for the respondent.

   STATEMENT OF CONCLUSION

6. I have decided to set aside the decision under review and substitute a decision that the cancellation of Mr Bassi’s visa be revoked. I now set out my reasons, commencing first with the background facts and then proceeding to an application of Direction no. 90.

   REASONS

   Background Facts

7. Mr Bassi is a citizen of Canada who was born in Toronto on 7 December 1985. At the time of the hearing, Mr Bassi was, therefore, 36 years of age. He completed his primary and secondary schooling in Canada.  Mr Bassi refers in his statutory declaration, which appears as part of Exhibit A1[2], to having being diagnosed at a young age with ADHD (that is, attention deficit hyperactivity disorder)[3]. I accept that evidence. It would seem that he was not particularly happy in his childhood: he ended up rebelling in his teenage years against parents whom he describes in his statement as “very strict” and having an Indian-village mentality which he found frustrating at times[4].

   [2] See pp 1ff of Ex A1.

   [3] At [1] of the statutory declaration.

   [4] Ibid, at [2].

8. Mr Bassi worked in a bank after completing high school. He then began tertiary education and studied for a Diploma in Computer Networking. At college he met his future wife, Nishi, in 2004 or thereabouts. They were married in 2010 and had their daughter, Khloee, in 2011.

9. Mr Bassi completed his diploma studies in around 2005. He was still working for a bank, the Bank of Nova Scotia, at that time, and he was also working in his family’s furniture-manufacturing business. This he did until mid-2013.

10. Mr Bassi records in his declaration that he first began using cannabis at the age of 15 (or in 2001)[5]. I accept his evidence that he had jumped from a roof and injured his back. He required ongoing pain relief and found cannabis preferable to the orthodox and lawful prescription medicines available to him.

    [5] Ibid, at [6].

11. His consumption of cannabis eventually stopped for a time when Mr Bassi went to college, but he took up alcohol in due course and also resumed smoking cannabis several times a week. He would temporarily stop, he said, but he always ended up returning to it[6]. I accept that evidence. I also accept Mr Bassi’s evidence that his alcohol intake began to increase as well. He also began to experiment with ecstasy, and clubbing and friendship circles led him to cocaine, LSD, and other psychedelic drugs.

    [6] Ibid, at [7].

12. It is clear that Mr Bassi had quite extensive drug-misuse issues in Canada. His initial use of cannabis may well have been a response to chronic pain; but his later abuse of a wider range of illicit and dangerous substances clearly had more to do with his personal choices at that time.

13. In 2013, Mr Bassi and his family moved to Queensland. His declaration records that the move occurred so that he could study law at Bond University[7]; but in his oral evidence, Mr Bassi referred to choosing to leave Canada – at least in part – because he wished to get away from the drug culture in which he had become enmeshed. I accept that oral evidence. It would appear that Mr Bassi had poor impulse control and was susceptible to the malign influence of inappropriate friends and acquaintances.

    [7] Ibid, at [5].

14. Mr Bassi did not “do drugs”, as he said in his declaration[8], for approximately three years after arriving in Australia, although he did drink alcohol. In 2017, however, he met someone who smoked cannabis, and so he resumed what was clearly a destructive habit for him. He resumed his cocaine habit as well, notwithstanding what he found to be the exorbitant price here in Australia. I note the lack of restraint in these behaviours.

    [8] Ibid, at [11].

15. Mr Bassi’s life became one where, in his words, he was a “functioning drug addict”[9]. I accept that evidence.  It is clear that, as had occurred in Canada, Mr Bassi had formed inappropriate and unhelpful friendships.  These led him inevitably to drug misuse.

    [9] Ibid, at [12].

16. Mr Bassi was arrested in 2020 at his home. The home had been searched by police on 21 January 2020.  The following drugs were found:

    (a) 46.4 g of cocaine within 77.7 g of substance;

    (b) 453 g of cannabis (or approximately half a kilogram); and

    (c) 1.67 g of substance containing MDMA.

    In addition, the police found a set of electric scales and a grinder. A tick sheet was also found, which Mr Bassi eventually admitted was his.

17. At first instance, before the Supreme Court of Queensland[10], Mr Bassi was sentenced to three years’ jail in respect of the cocaine offence. In respect of the cannabis offence, a concurrent sentence of six months was imposed. A further concurrent sentence of six months was imposed in respect of the MDMA offence. Mr Bassi was required to serve a year’s non-parole in jail after the Court delivered its sentence on 12 August 2021.  His visa was then cancelled.

    [10] Ex R1, at pp 32ff.

18. Mr Bassi brought a successful appeal against sentence. The Court of Appeal delivered its decision on 12 October 2021. The practical result was that Mr Bassi was released on parole on the day of the Court’s decision.  In the reasons it later delivered[11], the Court of Appeal referred to Mr Bassi having told police that the drugs found at his home on 21 January 2020 were intended for personal use only. That contention was eventually abandoned by Mr Bassi.  At [12] of its reasons, the Court said as follows:

    “Defence counsel accepted that the cocaine possession was for a commercial purpose. He explained that the cocaine was by the appellant for a bucks party which up to two dozen people would attend. The appellant planned to sell the cocaine at the bucks party. Counsel accepted that the tick sheet could lead to an inference that there had been some prior dealings with the cocaine. However, the acknowledgement of commerciality was limited to these circumstances. The Crown did not challenge that limited admission.  Her Honour [in the Court below] did not indicate that she would not accept counsel’s submissions in that respect.”

    [11] Ibid, at pp 57ff.

19. It is quite clear that the Court of Appeal proceeded on the basis that the sentencing judge did not indicate that she would not accept defence counsel’s submissions. The Court further refers at [79] to accepting “the undisputed explanation given to the sentencing judge as to the intended sale of the drugs at the bucks party”. “It follows”, said the court, “that the commercial purpose was a limited one”. The Court then noted that Mr Bassi had not been charged with supply and had not been charged with or convicted of trafficking.

20. The Court concluded the main body of its reasons with the following observations at [82]:

    “There is no reason to interfere with the head sentence of three years. Such a head sentence reflects the seriousness of the offending. The appellant was (sic) in custody now for about two months. The appellant’s particular personal circumstances that led to his commission of these offences, his early pleas, his remorse, his substantial rehabilitation and rebuilding of his life, his good future prospects and the limited scope of his offending all tend to sustain a conclusion that further incarceration would not serve the community’s interest.”

    Application of Direction no. 90

21. I now turn to consider the application of Direction no. 90. In Re Raiand Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2119, I set out the background to the Direction at paragraphs [32]ff.  I repeat and adopt that analysis here:

    “32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33. I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5).  I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34. First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35. I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9.  I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

22. I turn now to the primary considerations, the first of which is the protection of the Australian community from criminal and other serious conduct. Paragraph 8.1(1) requires decision-makers to bear in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I do so. The paragraph requires decision-makers to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that, amongst other things, they will be law-abiding and will not cause harm to the Australian community.  I bear this principle in mind.  I accept that it is an important one within the framework of the Direction.

23. Under paragraph 8.1(2), decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should he or she commit further offences or engage in other serious conduct.

24. I now turn to consider the nature and seriousness of Mr Bassi’s criminal conduct to date.  I regard his offending as very serious. It is clear that the examples of very serious and serious conduct that appear, respectively, in paragraphs (a) and (b) of paragraph 8.1.1(1) are examples only.  I am of the firm view that the use of illicit drugs in Australia is a matter of very real concern.  Those who acquire and use illicit drugs support criminal syndicates operating nationally and sometimes internationally in a trade that can rightly be described as highly destructive.  That trade strikes directly, in my view, at the foundations of a healthy and functioning society.  In this case, Mr Bassi’s offending went further because the drugs in question, or at least the cocaine, was intended by him to be supplied to others, albeit at a private gathering. This behaviour is entirely unacceptable and must be regarded very seriously.   

25. I accept that illicit drug use is widespread in the community and commonplace in many social circles.  It is exactly for this reason, of course, that drug dependence poses such a significant threat to Australian society. 

26. Drug dependence harms individuals, their families, and society more generally.  Those who misuse drugs very often depend more heavily on state-provided welfare and healthcare than other members of society.  Their purchase of drugs aids criminal syndicates that frequently organise other illegal activities.  In any event, the drug trade itself entices many vulnerable people into dependence that may lead to extreme ill-health and dysfunction. 

27. I am required by paragraph 8.1.1(c) to have regard to the sentences imposed.  The principal sentence upheld on appeal in this case (namely, one of three years) is a long one and reflected the Court of Appeal’s concern over the gravity of the offending. I note also the two concurrent sentences of six months each.

28. Under subparagraph (d), I must consider the frequency of Mr Bassi’s offending.  By his own admission, Mr Bassi has offended on numerous occasions by acquiring illicit substances for personal use.  He has done so over a number of years in Australia.  Accordingly, I regard the frequency of his offending in Australia as marked and very serious.  There is a trend of increasing seriousness as well in two respects.  First, Mr Bassi’s own use appeared to be spiralling out of control until his arrest, as it had done in Canada at an earlier stage of his life.  Secondly, Mr Bassi had decided to acquire for communal use a large quantity of drugs.  That decision represented an escalation in the seriousness of his offending, as he had chosen to become instrumental in the abuse of drugs by others.

29. I am required to have regard to the cumulative effect of repeated offending. Although he has not been charged, Mr Bassi has offended now on multiple occasions.  I bear that in mind.

30. Turning to risk, I note that paragraph 8.1.2(1) requires me to have regard to the Government’s view that the Australian community’s tolerance for risk becomes lower as the seriousness of the potential harm increases.  I have regard to this principle. It is also stated that some conduct and harm, if it were to be repeated, may be so serious that any risk of repetition may be unacceptable. 

31. In assessing risk, I must have regard to two factors “cumulatively”.  These are set out in subparagraphs (a) and (b) of paragraph 8.1.2(2).  Subparagraph (a) requires me to assume that Mr Bassi will engage in further criminal or other serious conduct and I must then have regard to the nature of harm to individuals or the Australian community on that assumption. Subparagraph (b) requires me to assess the likelihood of Mr Bassi engaging in that conduct.

1. So far as subparagraph (a) is concerned, I do regard the nature of harm as very serious indeed. I do not believe it is appropriate, however, to make the assumption that Mr Bassi would supply drugs to the community at large; that is, to become a dealer in layman’s terms. That he has not yet done on the evidence before me.  But he has shown himself willing to share drugs at private gatherings.  In my opinion, he has shown himself willing, both through personal use and through the sharing of drugs, to support the drug trade actively.  Furthermore, by intending to share drugs, he has also shown himself willing to facilitate and encourage the consumption of drugs by other community members.  That is an inherently dangerous and anti-social activity to undertake.  Mr Bassi would have had no idea whether the cocaine he intended to share at the buck’s party might have caused an adverse and unanticipated reaction in any individual.   He has shown himself willing to expose others to that risk by offering them illicit substances.

2. Turning to subparagraph (b), I regard the likelihood of his re-engaging in that conduct as low provided he remains in treatment and is monitored by his team of GP, psychiatrist, and psychologist.  I accept Dr Kwok’s report[12] and her conclusions at [48] of that report.

   [12] Ex A1, at pp 39ff.

3. I note that Mr Bassi’s statement and his oral evidence to the Tribunal did reflect an appropriate degree of insight into the harm of his drug use and some of the aspects of his personality that have led him into difficulty (including an unbridled egotism).  Mr Holt has also noted his commitment to recovery and rehabilitation[13]. The Court of Appeal noted his rehabilitation prospects positively in the passage I have quoted at [20] above.

   [13] Ibid, at p 49.

4. The effect of jail and then immigration detention from October 2021 onwards has been salutary in my opinion.  Mr Bassi has had brought home to him in the starkest of ways how illicit substances can lead a well-qualified person to the brink of personal disaster.  The time he has now spent in one form of detention or another has been considerable, and I believe it will operate as a significant deterrent to him in the future.

5. I do accept, however, that Mr Bassi has tried in the past to stay away from drugs and has failed.  He has repeatedly demonstrated impulsive and self-destructive tendencies.  I accept also that his wife, for one reason or another, has been unable to control – or even substantially influence – his behaviour in the family home.  There is a clear risk that he will resort to drugs.  In my opinion, however, it is a low risk subject to the caveats expressed by Dr Kwok, to which I have referred and with which I agree. I bear in mind, however, that I must consider paragraphs (a) and (b) of paragraph 8.1.2 (2) “cumulatively”, and I do so.

6. Paragraph 8.2, concerning family violence, does not give rise to an issue in this case.

7. Paragraph 8.3 requires me to consider the best interests of minor children (in this case, those of Khloee).  It is not clear on the evidence before me whether Mr Bassi’s wife and child would follow him to Canada if the decision under review were affirmed. On the assumption that they would stay in Australia, I find, like the delegate, that Khloee’s interests in maintaining one-on-one contact with her father substantially count in favour of revoking the cancellation decision.

8. On the alternative hypothesis, that the family moves back to Canada together, a real risk to Khloee’s interests arises from the risk of Mr Bassi resuming an association with drug providers or users. I bear in mind the evidence Mr Bassi gave that he left Canada to get away from corrupting influences – at least this was partly his motivation.  A return to Canada would be, at least initially, a personally dislocating event both for Mr Bassi and each of his family members.  Whilst he is employable, he would probably not have work immediately available to him[14]. The likelihood of relapse is higher in Canada than in Australia in my opinion. Of course, the higher the risk of relapse, the higher the risk to Khloee’s interests, as her welfare is clearly better served by a stable family environment where the father is not drug dependent. I also bear in mind that Khloee has seen quite some disruption to her family life. She was present when the police searched the family home, as Ms Allen pointed out.  Khloee has had to make the appreciable psychological adjustment of losing one-on-one contact with her father for a considerable period of time, almost 10 months as at the date of my oral decision. She needs the stability and familiarity of home and friendships to ensure she has the best chances of thriving as an adult in the future. I believe she would adjust to life in Canada in due course, but there would be, undoubtedly, an unsettling effect upon her if she and her mother left for Canada. So, on this alternative hypothesis, I believe Khloee’s interests also substantially favour revocation of the cancellation decision.

   [14] In contrast, Mr Bassi would have a job available to him in Australia on release: see Ex A1, at p 31.

9. Paragraph 8.4 requires me to have regard to the expectations of the Australian community. I shall not recapitulate subparagraph (1) but I have had regard to it.  As for subparagraph (2), I am concerned about the nature of the offending. The international trade in cocaine and other drugs is of worldwide concern (cf subparagraph (e)) and Mr Bassi’s indirect participation in that illicit trade by proposing to share cocaine at a party is of real concern to me. The Australian community is directly threatened by the prevalence and further spread of illicit drugs in the community. Addiction has harmed, and will continue to harm, the Australian community and undermine its foundations. This factor substantially counts against Mr Bassi. I note that it applies whether Mr Bassi poses, or does not pose, a measurable risk of recidivism. I note also that I am directed not to assess community expectations for myself: I must, rather, accept the expectations as outlined in the Direction. I do so.

10. I must have regard to so-called “other” considerations under paragraph 9.  A non-exhaustive list of four is provided in the Direction. I would have regard here to Mr Bassi’s wife’s interests in her marriage. On the assumption she would remain in Australia, I accept that she would lose the support and immediate comfort of a shared marriage, and she would face the burden of raising Khloee as a single parent. On the alternative assumption (that she would choose to return to Canada with her husband), she would face a substantial disruption to her own life plans here in Australia. In the circumstances these are the only considerations I believe it is necessary to weigh in Mr Bassi’s favour under paragraph 9.

    WEIGHING THE DISCRETIONARY CONSIDERATIONS

11. I must weigh the considerations to which I have referred. I have particular concern about the nature of the offending in this case. I note again that the nature of the harm and the risk of its recurrence are matters to be considered “cumulatively”, that is, aggregated. The “community-expectations” consideration also weighs heavily against Mr Bassi. It remains the case, however, that Khloee’s interests, and those of Mr Bassi’s wife to a lesser extent, require to be weighed.

12. If Mr Bassi were to return alone to Canada, the effect of my decision would be to fracture a family. Khloee is an innocent victim of the selfish decisions taken by her irresponsible father. His removal to Canada would compound the family’s difficulties.

13. There is also a greater risk of illicit drug use by Mr Bassi in Canada, I believe, and so Khloee’s interests in a functional, and not dysfunctional, family would be at greater risk if the family returned as a unit so to speak to Canada. I am concerned greatly by the interest she has as a young and maturing child in a stable future. 

14. I make clear that if Mr Bassi had been found guilty of a commercial purpose wider than that of sharing drugs at a buck’s party, the outcome of this application for review may well have been different.  Mr Bassi’s more limited purpose – although it was still a highly reprehensible one – and his relatively low risk of recidivism as I have estimated to be[15] have been important in my conclusion that the discretionary factors, on balance, do weigh in Mr Bassi’s favour. This is very much a decision on balance.

    [15] Subject to the caveats expressed by Dr Kwok.

    FORMAL ORDER

15. To return, then, to the statutory question I am tasked with addressing, I have concluded on my review and after applying Direction no. 90, that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii).  It follows that, having reached this conclusion, I should set aside the decision under review and substitute a decision that the cancellation of Mr Bassi’s visa be revoked.

    
    …………[Sgnd]……………

    Associate

    Dated: 13 July 2022

Date of hearing:	30 & 31 May 2022
Advocate for the Applicant:	Ms Marta Mamarot, South West Migration & Legal Services
Advocate for the Respondent:	Ms Cody Allen, Sparke Helmore Lawyers