Carneiro de Faria (Migration)

[2020] AATA 2086

Carneiro de Faria (Migration) [2020] AATA 2086 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rafael Carneiro de Faria

CASE NUMBER:  2004422

HOME AFFAIRS REFERENCE(S):          BCC2019/6127765

MEMBER:Nathan Goetz

DATE:1 May 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 010 (Bridging A) visa.

Statement made on 01 May 2020 at 3:44pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in association with application for partner visa, still in progress – risk to Australian community – criminal charges pending trial – subsequent grant of Bridging E visa rather than criminal justice stay certificate – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 360

Migration Regulations 1994 (Cth), Schedule 8, Condition 8564

CASES

Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Brazil. He arrived in Australia in September 2015 as the holder of a student visa. On 29 July 2019 he applied for a partner visa and the bridging visa which is subject of this decision was granted the same day. This bridging visa came into effect on 28 August 2019 and allowed the applicant to remain lawfully in Australia while the Department considered his partner visa application. The partner visa application is still being assessed by the Department.

3. On 16 January 2020 the applicant was given a Notice of Intention to Consider Cancellation (NOICC) of his bridging visa. The NOICC detailed that there appeared to be grounds to consider cancelling the bridging visa. The grounds were as follows:

4. The Queensland Police Service informed the Department that the applicant had been charged with the following offences:

   · Charge 1: Supply of a dangerous drug on 5 May 2019 contrary to s.6 of the Drugs Misuse Act 1986 (Qld)

   · Charge 2: Supply of a dangerous drug on 8 June 2019 contrary to s.6 of the Drugs Misuse Act 1986 (Qld)

   · Charge 3: Supply of a dangerous drug on 8 May 2019 contrary to s.6 of the Drugs Misuse Act 1986 (Qld)

   · Charge 4: Supply of a dangerous drug on 5 May 2019 contrary to s.6 of the Drugs Misuse Act 1986 (Qld)

   · Charge 5: Supply of a dangerous drug on 8 May 2019 contrary to s.6 of the Drugs Misuse Act 1986 (Qld)

   · Charge 6: Possession of a dangerous drug on 9 November 2019 contrary to s.9(1) of the Drugs Misuse Act 1986 (Qld)

   · Charge 7: Possession of a dangerous drug on 9 November 2019 contrary to s.9(1) of the Drugs Misuse Act 1986 (Qld)

   · Charge 8: Possess anything used in the commission of crime on 9 November 2019 contrary to s.10(1)(B) of the Drugs Misuse Act 1986 (Qld)

   · Charge 9: Possess anything used in the commission of crime on 9 November 2019 contrary to s.10(1)(B) of the Drugs Misuse Act 1986 (Qld)

   · Charge 10: Possession of utensils or pipes etc. that have been used on 9 November 2019 contrary to s.10(1)(B) of the Drugs Misuse Act 1986 (Qld)

   · Charge 11: Contravention of an order about information necessary to access information stored electronically (no date provided) contrary to s.205A of the Criminal Code Act 1899 (Qld)

   · Charge 12: Trafficking in a dangerous drug between 4 May 2019 and 10 November 2019 contrary to s.5 of the Drugs Misuse Act 1986 (Qld)

   · Charge 13: Breach of bail condition on 20 December 2019 contrary to s.29(1) of the Bail Act 1980 (Qld)

5. The delegate decision summarised the facts related to the charges as follows: The allegation is that Charges 1 and 7 related to the applicant supplying methylenedioxymethamphetamine (MDMA) to another person. The allegation in relation to Charge 12 is that the applicant and a co-accused trafficked MDMA and cocaine between 4 May 2019 and 10 November 2019. Regarding Charges 8, 9, 10, and 11, it was alleged that the applicant was found in possession of capsules, scissors, a lighter and a plastic container which were used in connection with the supply of dangerous drugs. The applicant was also found in possession of a used pipe which had been used for drug consumption and that the applicant refused to allow police to access his mobile telephone. The NOICC did not detail the facts related to Charge 13.

6. The NOICC detailed that s.116(1)(e)(i) provides that a visa may be cancelled if the Minister is satisfied that the presence of its 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. Given that the applicant had been charged with the above offences, it appeared to the delegate that grounds existed for the applicant’s bridging visa to be cancelled. The NOICC invited the applicant to comment on the information contained in the NOICC and to show why the grounds for cancellation did not exist, or to give reasons why the bridging visa should not be cancelled.

7. On 11 February 2020 the Department received submissions and supporting documents from the applicant as follows:

   ·     A submission regarding the cancellation from Derek Legal dated 10 February 2020

   ·     Letters from Lives Lived Well, dated 13 January 2020 and 10 February 2020

   ·     The applicant’s payslips dated 8 January 2020

   ·     Letter of support from Julia Soros dated 11 January 2020

   ·     Queensland Court Outcomes sheet dated 5 February 2020.

8. On 2 March 2020 the delegate decided to cancel the bridging visa under s.116(1)(e)(i). The decision record noted the receipt of the material from the applicant, but the delegate ultimately found that the grounds for cancelling the visa were not outweighed by the reasons not to cancel the bridging visa.

9. On 5 March 2020 the applicant applied to the Tribunal for a review of the cancellation decision. He provided the Tribunal with the delegate decision record. The applicant was represented in the review application by registered migration agent 1463654 Mr Carllo Castriota.

10. In the ordinary course of events, an applicant who lodges a review application is required to be invited to attend a Tribunal hearing to present arguments and evidence: s.360 of the Act. However, there are exceptions to this obligation. Relevant to the present case is the exception found in s.360(2)(a) which allows the Tribunal to dispense with this requirement if the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it. Having considered all the material available to the Tribunal, the Tribunal has ultimately concluded that it can dispense with the hearing requirement because a decision in this review will be made in the applicant’s favour.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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)(i). 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?

12. 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].

13. 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.

14. In the present case, the applicant has been charged with what can only be described as serious offending. Drugs, particularly the distribution of drugs, cause untold damage to the community. It is reasonable to expect that people, who are guests in Australia through the migration system, not engage in criminal activity such as that alleged against the applicant. The community expects that those who engage in such conduct will have actions taken against them in respect of their visas.

15. The Tribunal acknowledges that, save for the breach of bail charge which was finalised on 28 January 2020 with a ‘no conviction recorded / no further punishment’ sentence, the remaining charges are now listed on 6 August 2020 at the Southport Magistrates’ Court for a ‘call over’ hearing. The submission from Derek Legal notes that Charge 12 is currently being discussed with the prosecuting authorities and unlikely to proceed. In relation to Charges 1 to 5, the submission notes that the period of offending occurred over a short period of time with small quantities, and that a total of $490.00 changed hands. The submission notes that the balance of the charges relate to the day of arrest, with the likely outcome being probation.

16. The submission does not submit that the grounds for cancellation are not made out, but seeks to address the circumstances of the alleged offending, and to suggest that given the circumstances the discretion not to cancel the bridging visa should be exercised in the applicant’s favour.

17. The Tribunal is satisfied that the applicant has been charged with 13 offences, one of which has been finalised with a plea of guilty. The rest of the charges remain ongoing, including Charge 12. If the case against the applicant is true, the Tribunal would struggle to find that someone who has engaged in the supply, possession and trafficking of drugs is anything other than a risk to the community. While the Tribunal acknowledges that the balance of the charges against the applicant have not been proven against him, the fact is that the remain ongoing, and there is clearly sufficient evidence to support the charges, as the Director of Public Prosecutions Guidelines indicate that a prosecution will only proceed if this is the case[1]. Accordingly, the Tribunal is satisfied that the ground for cancellation is made out. A person who engages in conduct such as the applicant puts the Australian community at risk.

    [1] Director of Public Prosecutions (Queensland) – Director’s Guidelines No. 4 >

    For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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

18. 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’.

19. The Tribunal has considered the submission from Derek Legal that the applicant is in a long-term relationship and intends to marry his de-factor partner, that he was unemployed at the time and had ‘fallen in with the wrong crowd’, the claim that there is no prospect of further offending, and the fact that the applicant is now employed full-time and undergoing drug counselling and that Julia Soros, who is the grandmother of the applicant’s partner, knows him to be otherwise a good person who assists her, makes her granddaughter happy, and is considered part of Ms Soros’ family.

20. The Tribunal has also considered the applicant’s purpose in travelling and remaining in Australia, with the applicant arriving on a student visa and then applying for a partner visa. There is no material that the Tribunal is aware of that indicates that applicant has remained in Australia for any other purpose. Further, there is nothing in the material to suggest that the applicant has displayed poor behaviour towards the Department.

21. The Tribunal has considered that there may be some hardship that may be caused to the applicant’s partner who is an Australian citizen as a result of his bridging visa being cancelled. The cancellation of the bridging visa may result in the applicant being detained and potentially removed from Australia, as he would be an unlawful non-citizen. The fact that he has an ongoing partner application would be no barrier to his removal from Australia.

22. The cancellation of the applicant’s bridging visa, his placement in immigration detention as an unlawful non-citizen and potential removal from Australia may also result in the applicant no longer being employed, or being able to access the drug rehabilitation of which he is currently engaged.

23. The Tribunal also acknowledges that the cancellation decision may result in the applicant being prohibited from applying for further visas while in Australia due to s.48 of the Act.

24. However, it is the Tribunal’s view that all these factors do not outweigh the circumstances of the offending. It cannot be in the community’s interest that someone facing the charges that the applicant does be able to remain in the Australian community.

25. That being said, the Tribunal must exercise the discretion to cancel reasonably. In the circumstances of this case, the Tribunal has ultimately concluded that it should not uphold the decision to cancel the bridging visa. The reason that the Tribunal has come to this conclusion is not due to anything that the applicant has put to the Tribunal. The Tribunal has come to this conclusion because of the subsequent actions of the Department regarding the applicant’s migration status in Australia.

26. As stated in the Notification of Cancellation which accompanied the delegate cancellation decision, as the applicant’s visa had been cancelled, it was no longer in effect. Unless the applicant held, or was granted another visa, he became an unlawful non-citizen and may be detained and removed from Australia. Given this, the Tribunal could be mistaken for believing that it was dealing with an applicant who was an unlawful non-citizen in Australia. However, that is not the case.

27. It appears from the Department records that following the applicant applying to the Tribunal for a review of the cancellation decision, he was granted a Subclass 050 (Bridging E) visa on 19 March 2020 in connection with the review application. This regularised the applicant’s migration status and ensured that he was no longer an unlawful-non citizen, not liable to immigration detention and not liable to removal from Australia. Relevantly, the new bridging visa imposed condition 8564 which requires the applicant to not engage in criminal conduct. When a condition is attached to a visa, the decision-maker must be satisfied that an applicant will abide by conditions. It is not a question of whether there is an acceptable risk of the applicant abiding by conditions, but requires satisfaction that the applicant will not engage in criminal conduct. In the Tribunal’s view, this is a very high threshold for the applicant to meet.

28. It is incredulous to the Tribunal’s way of thinking that the Department was so concerned about the charges against the applicant to warrant the cancellation of his bridging visa, resulting in the applicant becoming an unlawful non-citizen, liable to immigration detention and removal from Australia, yet that same Department prepared to let the applicant remain in the Australian community by granting him a subsequent bridging visa and being satisfied that he would not engage in criminal conduct. This makes no sense to the Tribunal. While the Tribunal is not bound by the Department’s decisions, the actions of the Department can be persuasive to the Tribunal when deciding what it should do in regard to the applicant.

29. The community would be really concerned by the actions of the Department granting the applicant a subsequent bridging visa. For the sake of completeness, the Tribunal indicates that it would not have done so, given the charges that the applicant faces. However, the Tribunal now finds itself in a difficult position, where the Department has seen fit to release the applicant on another bridging visa and the result of upholding the cancellation decision would see the applicant’s lawful status revoked. Given the charges the applicant faces, the Tribunal is curious as to why a Criminal Justice Stay Certificate was not issued in respect of the applicant to hold him as an unlawful non-citizen in Australia pending the resolution of the criminal charges against him.

30. In any event, the Tribunal is stuck with the subsequent actions of the Department and in the Tribunal’s view, given those actions it would be unreasonable to uphold the cancellation decision. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Nathan Goetz
    Member