Chen and Minister for Home Affairs (Migration) - [2018] AATA 4459

Chen and Minister for Home Affairs (Migration) [2018] AATA 4459 (30 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5351
Re:Weidong Chen
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:30 November 2018
Place:Sydney

The Reviewable Decision is affirmed.
......................[sgd]..............................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – section 501 visa cancellation – Criminal Justice Stay visa – failure to pass character test – substantial criminal record – supply commercial quantity of prohibited drug – whether another reason why visa cancellation should be revoked – application of Direction 65 – protection of the Australian community – best interests of minor children affected by the decision – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531
Chen v R [2018] NSWCCA 106
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
30 November 2018
BACKGROUND

Mr Weidong Chen (‘the Applicant’) was born in China on 10 October 1990 and is 28 years old.[1] He is in a de facto relationship with Ms Danhong Wu. They have two sons aged seven and five years, both of whom were born in Australia.[2]
[1] G01, 3.
[2] G02, 88.
The Applicant arrived in Australia on 28 April 2007 as the holder of a Student (Subclass 571) visa.[3] The Applicant’s visa was cancelled on 6 February 2009 for failure to comply with the conditions of the visa. He was an unlawful non-citizen in Australia until 22 August 2012 when he was granted a Temporary Criminal Justice Stay (Subclass 951) visa (‘Criminal Justice visa’).[4]
[3] G02, 34.
[4] G02, 57.
On 4 March 2016, the Applicant was convicted in the District Court of New South Wales of supply of a prohibited drug in a commercial quantity and was sentenced to five years imprisonment with a non-parole period of three years.[5] This sentence was in relation to an offence committed on 2 August 2012 for which the Applicant was found guilty after trial by jury.[6]
[5] G02, 22.
[6] G02, 23.
The Applicant appealed his criminal conviction to the NSW Court of Criminal Appeal, which dismissed his appeal on 1 June 2018.[7] The Applicant filed an application for special leave to appeal the Court of Criminal Appeal's judgment to the High Court.[8] Information on the High Court's website indicates that the High Court dismissed the Applicant's application for special leave to appeal his criminal conviction on 16…

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.

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Details

Case: [2018] AATA 4459
Decision Date: 30 November 2018

CaseChat Overview and Summary

This matter concerned an application by Mr Chen (the applicant) to the Administrative Appeals Tribunal (the Tribunal) for review of the Minister for Home Affairs' decision to refuse to revoke the mandatory cancellation of his visa. The applicant's visa had been cancelled under section 501 of the Migration Act 1958 (Cth) due to his substantial criminal record, specifically a conviction for supplying a prohibited drug in a commercial quantity. The central dispute was whether there was "another reason" why the original decision to cancel his visa should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Act.

The Tribunal was required to determine whether the applicant had established "another reason" to revoke the mandatory visa cancellation. In doing so, it had to consider the relevant considerations outlined in Part C of Direction No. 65, which included the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The Tribunal also had to give appropriate weight to information from independent and authoritative sources, with primary considerations generally carrying greater weight than other considerations.

The Tribunal reasoned that while the applicant's offence of supplying a commercial quantity of pseudoephedrine was serious, it was not violent or sexual in nature. It noted that the applicant had only one conviction in Australia and that the offence involved a precursor drug rather than methylamphetamine itself. The Tribunal considered the applicant's personal circumstances, including his history of visa breaches and his delay in applying for a protection visa. Ultimately, the Tribunal found that the applicant had not established "another reason" to revoke the mandatory visa cancellation.

The Tribunal affirmed the original decision not to revoke the mandatory visa cancellation.

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

Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[19] Paragraph 8(3) provides that ‘both primary and other considerations may weigh in favour of, or against… cancellation of the visa’. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[20] EVIDENCE BEFORE THE TRIBUNAL[19] Direction No. 65 at [8(2)]. [20] Direction No. 65 at [8(4)] and [8(5)].Applicant’s visa status history In his oral evidence at the hearing, the Applicant told the Tribunal that he came to Australia on a student visa in 2007 but he ceased studying when the school he was attending became bankrupt and closed down. The Applicant’s visa was cancelled on 6 February 2009 for failure to comply with visa conditions.[21] He told the Tribunal he did not know that his visa had expired and he only became aware of this at the end of 2010 / early 2011. From February 2009 until his arrest in August 2012 he worked to earn money for his family.[21] G02, 16. The Applicant said that he considered applying for a protection visa in November 2011 when his de facto wife lodged her protection visa application. However she told him that they should apply separately so that they would have two chances of being granted a protection visa. He did not apply for protection until March 2018 because following his arrest in August 2012 he held a Criminal Justice visa. He did not attend the protection visa interview with the Department in April 2018 because he was very ill. He saw a nurse at Villawood but did not provide a medical certificate to the Department.Criminal History A National Police Certificate dated 23 May 2018[22] issued in respect of the Applicant records that on 8 October 2015 a jury returned a verdict of guilty for the offence Supply prohibited drug >= commercial quantity. On 4 March 2016 he was sentenced by the District Court of New South Wales to five years imprisonment commencing on 20 March 2015 with a non-parole period of three years. [22] G02, 22. In his sentencing remarks, Judge Buscombe outlined the circumstances of the Applicant’s offending. On 31 July 2012 police intercepted a telephone conversation between the Applicant and another person regarding ‘the sourcing of something’. Further telephone conversations between the Applicant and the other person were intercepted in early August 2012. On 2 August 2012 police observed the Applicant enter premises and shortly after exit the premises with two other persons. When police approached the Applicant he attempted to run from them and was arrested. One of the persons dropped a bag which was found to contain 4.985 kilograms of pseudoephedrine with a wholesale value of between $20,000 and $30,000 per kilogram. The Judge was satisfied that the Applicant was seeking to find persons who could supply him with pseudoephedrine for the purposes of supplying it to others, and that he was aware there was a commercial quality of the drug in the possession of his co-offender.[23] The Judge accepted evidence provided by Dr Coglan, a chemical expert, who explained that pseudoephedrine, is a precursor from which methylamphetamine can be manufactured.[24][23] G02, 24-25.[24] G02, 25.

Decision

Reasons for decision

It remains for the Tribunal to determine whether, in accordance with s 501CA(4)(b)(ii) of the Act, “there is another reason why the original decision should be revoked”.[49][49] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].(2) Is there ‘another reason’ to revoke the Mandatory Visa Cancellation Decision? Sub-section 501CA(4)(b)(ii) has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166:The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[50][50] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The Tribunal must consider any mitigating circumstances that may militate in favour of setting aside the decision not to revoke the Mandatory Visa Cancellation Decision. In doing so, it must take into account the Considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.Primary Consideration 1 – Protection of the Australian community Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Paragraph 13.1(2) directs that decision-makers should also give consideration to: (a) the nature and seriousness of the non-citizen's conduct to date; and(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;(c) The sentence imposed by the courts for a crime or crimes;(d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;…Nature and seriousness of the Applicant’s conduct to date

Ratio Decidendi

Legal Principle Established

The Tribunal must consider any mitigating circumstances that may militate in favour of setting aside the decision not to revoke the Mandatory Visa Cancellation Decision. In doing so, it must take into account the Considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.Primary Consideration 1 – Protection of the Australian community Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Paragraph 13.1(2) directs that decision-makers should also give consideration to: (a) the nature and seriousness of the non-citizen's conduct to date; and(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;(b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;(c) The sentence imposed by the courts for a crime or crimes;(d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;…Nature and seriousness of the Applicant’s conduct to date In assessing the seriousness of the Applicant’s criminal offending and the risk posed should he commit further offences, the Tribunal notes that the Applicant has been convicted of only one offence in Australia being the conviction in the District Court of New South Wales on 4 March 2016 for supply of a prohibited drug in a commercial quantity for which he was sentenced to five years imprisonment with a non-parole period of three years. The Respondent submits that the supplying of prohibited drugs, particularly in commercial quantities, is a very serious and insidious offence, due to both the widespread harm and devastation it inflicts on the Australian community and the difficulty associated with its detection.[51][51] Respondent’s SFIC at [29]. Having regard to paragraph 13.1.1(1)(a) and paragraph 13.1.1(1)(b) of the Direction, the Tribunal finds that although the Applicant’s offences were neither violent or sexual crimes, the sale and supply of prohibited drugs in a commercial quantity, particularly pseudoephedrine, is intrinsically a serious offence.