Chan (Migration) - [2023] AATA 1090

Chan (Migration) [2023] AATA 1090 (21 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr San Sang Chan
CASE NUMBER:  2302807
HOME AFFAIRS REFERENCE(S):          BCC2017/3756206
MEMBER:Bridget Cullen
DATE:21 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the Applicant’s Subclass 010 (Bridging A) visa.

Statement made on 21 April 2023 at 1.50pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to community or individuals – criminal charges, convictions, lengthy imprisonment and immigration detention – discretion to cancel visa – two periods as unlawful non-citizen, one very lengthy – adult children long-term residents and no family remaining in home country – age, physical health and financial, psychological and emotional hardship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(i), 359AA, 376
CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 24 February 2023 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 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e)(i) of the Act on the basis that, on 17 April 2014, the Applicant had been charged with several offences relating to the drug methyl amphetamine:
·Supply prohibited drug – commercial quantity – SI;
·Supply prohibited drug – Large commercial quantity – SI x 3;
·Supply prohibited drug – indict. quantity (not cannabis) – SI; and
·Supply prohibited drug.
Also on 17 April 2014, the applicant was charged with the following additional offences:
·Knowingly participate in criminal group assist; and
·Knowingly deal with proceeds of crime – SI.
On 23 November 2017, the Applicant was first notified of, and invited to comment on, the intention to consider cancellation of his Bridging A (subclass 010) visa granted on 07 November 2012. The Applicant did not reply to the letter.
Then, on 15 December 2017, a decision was made by the Department to cancel the Applicant’s Bridging A (subclass 010) visa under 116(1)(e) of the Act, and a notification of cancellation letter dated 15 December 2017 was sent to him by prepaid post.
Subsequently, the Department determined that the applicant was not correctly notified of the 15 December 2017 decision. Because of this, the Applicant was re-notified of the cancellation of his Bridging A (subclass 010) visa on 24 February 2023.
The Applicant appeared before the Tribunal on 6 March 2023 via Microsoft Teams to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The Tribunal was careful to ensure that the Applicant had understood the proceedings. The Applicant told the Tribunal that he had understood the proceedings, including the interpretation.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
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)(e) 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?
s 116(1)(e) - risk to Australian community or individual
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].
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.
There is no definition of ‘risk’ in the Act or Migration Regulations 1994 and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary)[1]. The expression ‘may’ connotes something ‘to be possible'[2]. The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred.
[1] Macquarie Dictionary online at as at 17 April 2023.
[2] Ibid.
As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all the information available to the Tribunal.
Does the ground for cancellation exist?
The Applicant has provided limited information to the Tribunal. The Applicant was convicted of offences relating to drug supply, as he was taken into custody by Australian Border Force officers following his release from a custodial sentence in relation to the criminal matters. The Applicant is currently held at the Villawood Detention Centre.
The only documentary evidence provided by the Applicant to the Tribunal was provided post-hearing and relates to the Applicant’s health. The Applicant advised the Tribunal that, following the hearing, he had a heart attack in his wing at the Villawood Detention Centre.
He was picked up by ambulance, admitted to Liverpool Hospital, operated on, and then discharged.
The Applicant provided the Tribunal with a copy of the hospital discharge papers, which indicate that:
The applicant presented to the Liverpool Hospital on 6 March 2023 with syncope, and was admitted. The applicant was found to have trifascicular block on ECG and was therefore referred for PPM insertion. The PPM was inserted and he was sent home with oral Keflex to be taken for a total of 5 days from the day of the procedure.” The applicant was deemed fit and safe for discharge on 14 March 2023.
Section 376 Certificate
The Tribunal disclosed the existence of a s 376 Certificate on the Departmental file to the Applicant. The reason for the certificate is given as being contrary to the public interest because disclosure of the material would be contrary to the public interest because it would:
disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.
The Tribunal is satisfied that that the Certificate is valid, and therefore has not disclosed the detail of the certificated material to the Applicant. However, the Tribunal has disclosed that the substance of the information relates to the Applicant’s criminal history, of which he is already aware.
As the Applicant had not provided any documentary information to the Tribunal (save for the medical information provided post hearing), the Tribunal, adopting the process set out in s359AA of the Act, put to the Applicant the information before it that it considered could be the reason, or part of the reason, that the Tribunal affirmed the cancellation decision. In doing so, the Tribunal was careful to use plain English, and through the interpreter, explain the information, and its relevance to the issues before the Tribunal.
The information before the Tribunal indicates that the Applicant was convicted of several offences, including supplying a large supply of a prohibited drug in commercial quantities, resulting in a lengthy custodial sentence. The Tribunal explained that this information might result in the Tribunal finding that the Applicant is, in the context of s116(1)(e), a risk to the Australian community or individual.
The Applicant chose to respond to the information and told the Tribunal that he was first arrested in 2012, having been pulled over by the police for a “driver’s alcohol check”. As he had a positive test result for alcohol, and the police discovered that he did not have a valid visa, he was taken to an immigration detention centre.
In the detention centre, the Applicant says that he met “Michael” who became a frequent visitor to his home. As Michael had a drug background, he was being followed by the police. Michael was then arrested. Subsequently, the Applicant was also arrested, as (according to the Applicant), the police concluded that he was involved in drug trafficking, and further concluded that he was “the boss”.
The Applicant, despite his lengthy incarceration, having been convicted of commercial drug supply, does not accept responsibility for the substance of the charges he has been convicted of. The Applicant told the Tribunal that he is not a risk to anybody. The Applicant also explained that he was not convicted of all the charges, specifically the charges that he was part of a criminal enterprise. The Applicant says that the New South Wales Parole Board approved his release to his daughter’s home. The Tribunal accepts that the New South Wales Parole Board approved the Applicant living with his daughter. However, the Parole Board’s decision is not relevant to the decision about whether to exercise the cancellation power in respect of a non-citizen.
The Tribunal thinks that it is plain that a ground for cancellation exists in circumstances where the Applicant has been charged with the offences particularised in the notice of intention to cancel the Applicant’s visa. The negative impact of methyl amphetamine use on society is widely known. The Tribunal has considered the Applicant’s evidence that he was not ultimately convicted of all of the offences he was charged with, but it is obvious that the matters are quite serious and involve drug distribution on a commercial scale, which did result in the Applicant’s imprisonment for a lengthy period.
Having regard to the nature of the charges – commercial supply of methyl amphetamine - the Tribunal has formed the view that the Applicant’s presence in Australia may be a risk to the safety of the Australian community or the safety of an individual or individuals. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) exists.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) 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
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’.
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.
The Applicant is a 75-year-old man, who came to Australia for the first time in 1986. He says that his two sons came to Australia to study, and he was operating a textile business in Hong Kong. He said his wife came over first and rented an apartment with his sons. He says that his sons were worried about the living arrangements in a small apartment. For this reason, on his second visit, he brought with him some cash, which he used to buy cars and properties.
Although his oldest son did well studying, the Applicant says that his younger son did not do well, and therefore he could not return to Hong Kong. Now, having been released from a long period of incarceration, the Applicant seeks to remain in Australia to spend time with his sons and his daughter.
The Applicant’s need to remain in Australia is based upon his relationship with his family. The Applicant did not mention his wife in his evidence. The Tribunal understands that family connections are important, and that the Applicant may find it difficult to maintain these connections if the visa is cancelled. The Tribunal accepts that the Applicant desires to maintain a relationship with his children. The Tribunal places some weight on this need as a factor against cancellation.
The extent of compliance with visa conditions
The Applicant acknowledges that he resided unlawfully in the community for two periods, including a lengthy period between 1987 and 2012. This is a period of approximately 25-years.
The Applicant’s explanation for the lengthy period in which he was unlawful is not particularly compelling, in the Tribunal’s view. He says that he had to stay in Australia for the sake of his troubled younger son. He offers no explanation as to why he could not obtain a visa to remain lawfully, either to visit or reside in Australia.
The Tribunal observed that remaining unlawful in the community could be seen as a way to facilitate the criminal activity that the Applicant was involved in, as he would not be as easily located or identified by law enforcement. The Applicant said that, as he was unlawful, he was very careful to not engage in activities that would have caused authorities to become aware of his presence in Australia.
The Tribunal asked the Applicant if the reason that he remained unlawful for 25-years was because of the advantages that it would afford him if he was involved in criminal activity by allowing him to effectively operate underground with less potential to engage the attention of law enforcement. The Applicant says that this was not the case, but that he remained in Australia to help his younger son.
The Tribunal does not accept the Applicant’s explanation for his unlawful visa status, as his need to ensure that his son completed school (which is what he told the Tribunal was causing his son difficulties) would not have taken 25 years. The Tribunal takes a very dim view of the Applicant’s knowing willingness and intent to flagrantly violate Australia’s visa system for such a significant length of time. This is a factor that the Tribunal very significantly weighs in favour of cancellation.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Applicant will experience separation from his children and has told the Tribunal that he has no family remaining in his home country. He says that it will be very difficult for him to support himself, and that he will have nowhere to return to except his deceased parent’s home village.
The Applicant has some health concerns, including the issues that led to his most recent hospital admission to the Liverpool Hospital. However, the discharge notes indicate that the Applicant was deemed fit and safe for discharge. The Tribunal accepts that the applicant is likely to experience emotional hardship if separated from his children, who have been able to visit him while he has been imprisoned in Australia, and while he has been in the Villawood Detention Centre.
The Tribunal accepts that as a 75-year-old man with limited employment potential, that the Applicant is also likely to experience financial and psychological hardship. The Tribunal gives the financial, psychological, and emotional hardship the applicant is likely to experience as a consequence of cancellation some weight in favour of not cancelling the visa.
Circumstances in which ground of cancellation arose
The Applicant was arrested for criminal offences committed in the Australian community whilst he was present in Australia without a valid visa. Whilst not relevant to whether a ground for cancellation exists (as it was the criminal charges that formed the basis of the cancellation ground), that the Applicant was ultimately convicted and sentenced to a lengthy period of incarceration is a relevant factor to these considerations.
The Tribunal considers that the Applicant’s arrest for, and conviction of, charges relating to commercial distribution of drugs is a factor that weighs very strongly in favour of cancellation of the visa.
The visa holder’s past and present behaviour towards the Department
The Applicant did not respond to the Notice of Intention to Consider Cancellation. The Applicant was unlawful in Australia for significant periods of time (18 October 1987 to 07 August 2012) and (26 September 2012 to 06 November 2012). Despite this unlawfulness, there is no evidence before the Tribunal suggesting that the Applicant was difficult in the engagements he did have with the Department. If anything, the evidence suggests a lack of engagement by the Applicant with the Department. The Tribunal weighs the Applicant’s behaviour toward the Department (setting aside the fact of his unlawful visa status, which is considered above), neutrally, as a factor neither for nor against cancellation.
Any consequential cancellations that may result
There would be no consequential cancellations under s 140 were the applicant’s visa cancelled.
Legal consequences of a decision to cancel the visa
The Applicant is currently on a bridging visa as a result of the current cancellation decision. In the absence of another successful visa application being made by the Applicant, or granted by the Minister, ultimately the Applicant will not have a visa status which will allow him to remain in Australia. If that is so, he has the opportunity to depart Australia. If he fails to do so, this may result in detention or removal action, but this is not a necessary consequence of the cancellation decision.
The Tribunal is also mindful that section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under section 116 of the Act may apply for certain prescribed classes of visas but not others. This limits the visa applications which can be made by the Applicant whilst onshore. These are matters to which the Tribunal gives some weight in the Applicant’s favour, against cancellation.
Australia’s international obligations
The Tribunal has considered whether any international obligations, including non-refoulement and family unity would be breached as a result of the cancellation. The Applicant did not raise the issue of non-refoulement, only claiming that his employment prospects in the Hong Kong Special Administrative Region of the People’s Republic of China would be limited given his age and health.
There is no evidence before the Tribunal to indicate that the Applicant’s case is one which engages Australia’s international obligations. The Tribunal weighs this neutrally, as a factor neither for nor against cancellation.
Conclusion

Having regard to the primary and secondary considerations, the Tribunal considers that the criminal charges (and subsequent convictions) should be given the greatest weight, together with the lengthy period during which the Applicant did not hold a valid visa and was unlawful in the community.
For the reasons set out, above, these considerations eclipse the comparatively little weight that can be attributed to the other factors discussed above.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the Applicant’s Subclass 010 (Bridging A) visa.
Bridget Cullen
Senior Member