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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan (Migration)

Details

AGLC: Chan (Migration) [2023] AATA 1090
Case: [2023] AATA 1090
Decision Date: 21 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Chan, who sought to challenge the cancellation of his Bridging A visa. The dispute arose from the Minister's decision to cancel Mr. Chan's visa under section 116(1)(e) of the Migration Act 1958 (Cth), which permits cancellation if the visa holder's presence in Australia poses a risk to the health, safety, or good order of the Australian community or an individual. Mr. Chan's criminal history, including convictions and lengthy imprisonment, along with periods of unlawful status in Australia, formed the basis of the cancellation.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 116(1)(e) was made out, and if so, whether the discretion to cancel the visa should be exercised in Mr. Chan's circumstances. The Tribunal was required to assess the risk Mr. Chan's presence posed to the Australian community, considering his past conduct and the possibility of future risk. It also had to weigh various factors in exercising its discretion, including Mr. Chan's personal circumstances, his reasons for remaining in Australia unlawfully, and the potential hardship his removal would cause.

In its reasoning, the Tribunal affirmed that the ground for cancellation under section 116(1)(e) was established, noting that the risk does not need to be certain and can be inferred from past conduct, such as criminal charges and convictions. The Tribunal found that Mr. Chan's lengthy periods of unlawful status, including approximately 25 years between 1987 and 2012, were not adequately explained and could have facilitated criminal activity by allowing him to operate with less scrutiny. While acknowledging Mr. Chan's desire to remain in Australia to be with his adult children, who are long-term residents, and considering his age and potential hardship, the Tribunal concluded that these factors were outweighed by the seriousness of his criminal history and his prolonged unlawful presence.

Consequently, the Tribunal affirmed the decision to cancel Mr. Chan's Bridging A visa.

Orders

Orders of the court

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Background

Background to the litigation

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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)(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?

Decision

Reasons for decision

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 CullenSenior Member

Ratio Decidendi

Legal Principle Established

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.