Jaekel (Migration)

[2021] AATA 3603

Jaekel (Migration) [2021] AATA 3603 (21 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Saskia Jaekel

CASE NUMBER:  2108575

HOME AFFAIRS REFERENCE(S):          BCC2020/2207927

MEMBER:Denis Dragovic

DATE:21 September 2021

PLACE OF DECISION:  Melbourne

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 21 September 2021 at 9:48am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – criminal offences, convictions and suspended sentence – discretion to cancel visa – visa, relationship, study and work history – partner’s application for permanent residency on hold during this application – circumstances of offending – purchase of drugs with friends for personal use with no intention to sell – sentence indicates lower end of offending – character references – currently holding Bridging Visa E – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(g)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)
Misuse of Drugs Act 1981 (WA), ss 7B(6), 11(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 June 2021 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 delegate cancelled the visa under s.116(g), regulation 2.43(1)(oa) on the basis that the applicant had been charged and convicted of an offence. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant, a 27 year old woman from Germany, appeared before the Tribunal on 13 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend and former supervisor Betty Elhers.

4. The applicant was represented in relation to the review by her registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. 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.

7. Relevant to this case, cancellation under s.116(1)(g) requires the Minister to be satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r 2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r 2.43(1)(oa) is relevant:

   in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

8. The applicant confirmed that she had been convicted of the following offences:

   ·     Conviction 1 – Fremantle District Court, 15 October 2018: Possessed drug paraphernalia in or on which there was a prohibited drug or plant Misuse of Drugs Act 1981, 7B(6)

   ·     Conviction 2 – Perth District Court of Western Australia, 24 July 2020: Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis)

9. At the hearing it was explained that although the dates of the convictions are separate, they relate to the same incident from May 2018. The applicant explained that she pled guilty to the first immediately and similarly pled guilty to the second but only after a protracted defence.

10. The applicant was sentenced to nine months in prison suspended for nine months.

11. As the applicant has been convicted of an offence and she confirmed this at the hearing, the Tribunal is satisfied that the ground for cancellation in s.116(g) and r 2.43(1)(oa) 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

12. 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’ which are listed as italicised subheadings below.

    the 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

13. The Minister’s delegate provided a migration history of the applicant which is relevant to the applicant’s current purpose for her stay in Australia:

    The visa holder first entered Australia as the holder of a Working Holiday (subclass 417) visa on 10 March 2015. This visa allows a person to have an extended stay in Australia, while working to fund their travels.

    On 7 April 2016, she was granted a second Working Holiday (Extension) (subclass 417) visa.

    On 7 April 2017, she lodged an application for a Temporary Work (Skilled) (subclass 457) visa as a dependent applicant of her partner, Jed De Noronha. This visa was approved on 20 February 2018, and ceased on 3 August 2020.

    On 31 July 2020, she was included in an application for an Employer Nomination Scheme (ENS) Temporary Residence Transition (TRT) (subclass 186) visa. This application is still pending, and it is the bridging visa received in association with this application that is being considered for cancellation.

14. At the hearing the applicant provided background to her move to Australia and her current reason for staying. When given the opportunity to explain her circumstances she began by expressing remorse and regret as she had in writing in a submission to the Department dated 16 November 2020. At the hearing she explained that she did not intend to end up where she has. She explained that she came to Australia to backpack and while in Australia met her partner, a Dutch man, with whom she has now been with for six years and hopes to start a family with one day. They together sought sponsorship to remain in Australia which was granted quickly to her partner who found an employee to sponsor him. While her partner worked as a chef, she worked in the hospitality industry in various cafes.

15. The reason the applicant wants to remain in Australia is because she loves the country and the lifestyle. She described how they gave made plans to live in Australia. She explained that her and her partner’s visa application (subclass 186) is on hold by the Department until a decision is made on the application before this Tribunal. The applicant said that if this visa’s cancellation was affirmed, and she was required to return to Germany, her partner would not remain in Australia alone and would return with her. She explained that they had considered the possibility that he continues the visa process in Australia without her and then he sponsors her on a partner visa but noted that she would be barred from applying for such a visa for three years.

16. The applicant explained that her partner has been working with the same company for five years. He is now a head chef and is being considered for a role as executive chef. Her reason for staying is in part tied to his career opportunities.

17. The applicant said that if her visa’s cancellation was affirmed, she could study naturopathy in Germany, but it isn’t recognised as it is in Australia. Naturopathy is a stand-alone bachelor’s degree in Australia which gives it greater standing whereas, she explained, in Germany it is an extra one year of study on top of a different degree such as physiotherapy. She acknowledged that it would be cheaper doing it in Germany, but she said that she calls Australia home and is willing to pay the full fees.  

18. In considering the reasons for the applicant’s stay in Australia I note that she has a passion for the country, has plans for a future in Australia, she has a partner who is on a pathway to permanent residency and she has interests in pursuing studies that are not available in Germany in the format she prefers. When considering all of these reasons combined, I give considerable weight against cancelling the applicant’s visa.

    the extent of compliance with visa conditions

19. I put to the applicant that Departmental records show that she did not have a visa between 10 March 2017 when her Working Holiday visa expired and 7 April 2017 when her application for the subclass 457 visa was lodged. As such she was unlawful for a three week period.

20. She said that her visa agent at the time did not mention the imminent end of her visa. She acknowledged that it was her fault for not having tracked it, but she also expressed disappointment that her agent did not inform her.

21. Along with her application for the subclass 457 visa she was granted a Bridging C (subclass 030) visa with condition 8101 attached. Condition 8101 does not allow the holder to work. She remained on the bridging visa for ten months. I asked the applicant whether she had worked during that period. The applicant acknowledged that she had worked throughout that period. She said that for the same reason as she did not know of the gap between one visa and the other, she did not know of the limitation on her ability to work.

22. I place some weight in favour of cancelling the applicant’s vias on the basis of these transgressions. I accept that they were not intentional, that the unlawful presence was short term and her culpability is mitigated by the fact that she had a migration agent who did not inform her of the circumstances. But ultimately it is the responsibility of the visa holder to be aware of the conditions on their visas and to ensure that they have the appropriate visa.

    degree of hardship that may be caused (financial, psychological, emotional or other hardship)

23. The applicant is in a relationship with a partner who has a pending application for a permanent visa to remain in Australia. If the applicant’s visa was to be cancelled and she was to depart Australia, a matter discussed further below, then the applicant and her partner would face the option of either being separated or the partner needing to return to Europe together with the applicant. As noted above, the applicant’s partner is reconciled with the fact that he would need to leave Australia if the applicant was to depart. I accept that this will have some impact on the applicant’s relationship and cause some degree of psychological hardship on her. For this reason, I place some weight against cancelling the applicant’s visa.

24. The representative noted that a visa cancellation had wider ramifications including attempting to get other visas to other countries such as the United States. I accept this to be the case and place limited weight against cancelling the applicant’s visa.

    circumstances in which the ground of cancellation arose.

25. The applicant explained that she and her partner were facing challenges in their relationship and at the same time she was working and socialising with friends who smoked marijuana heavily, which led her to start to smoke marijuana again. She said that initially her friends who smoked marijuana would come to her place and bring it with them and she would join them.

26. The applicant provided some context to her thinking at the time. She said that she had grown up living close to the border with Holland and explained that it was legal to have a ‘fair bit’ of marijuana on a person and one could access as much as was needed in coffee shops. Because of these rules she said that she had never previously accumulated such amounts as she had been caught with but her usage was the same. As a result of this background she claimed to have been of a mindset which made her think that smoking marijuana wasn’t bad.

27. Over time the challenges of her relationship, which centred on her partner’s lack of a driver’s licence that in turn required her to wake up early to start work and stay up late having to pick him up from work, led to heavier marijuana usage.

28. Together with her friends and partner the applicant claimed that they decided to seek out a supplier of marijuana who could provide them what they needed as a group. The applicant ended up speaking with someone who was sourcing the marijuana directly from the growers in bulk. She claimed that she and her friends sought out this direct access to save money. The applicant and her friends pooled their needs and resources to collectively purchase their personal usage. She explained that evidence available to the police showed that it wasn’t a business but rather it was about keeping the money they earned from their jobs. I accept the applicant’s narration of what led to her being caught.

29. The applicant said that the police did not find any cash in their house and they checked their bank accounts and found that they were not making money from the arrangement. I accept this as fact.

30. I note that the charge of Possession of Prohibited Drugs with Intent to Sell or Supply is automatically triggered once a threshold amount, specified by the Misuse of Drugs Act, is exceeded: s11(a). The onus then is upon the person charged to prove that they did not have the intention to sell. Based upon the conviction it is clear that the applicant was unable to convince the District Court judge that there was no intention to sell the marijuana that was found in her house. Taking into consideration the nature of the arrangement described by the applicant, which I accept as fact, namely that it included the applicant being the point person and her house the drop off area for a group that could be described as a consortium purchasing marijuana for personal use, there is some room for me to distinguish between the reasoning for the criminal conviction and the considerations for whether to cancel the visa.

31. Despite the applicant being convicted of Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis) I am satisfied that the applicant was not selling drugs. I accept that the applicant appears to have been the main point of contact and the hub by which a group of people, she said included several friends, collectively accessed a large quantity of drugs for personal use but that this did not entail acts that would be commensurate with selling or supplying cannabis commercially. I also note that the District Court judge gave the applicant a suspended sentence leading to no prison time being served which is indicative of the applicant being on the lower end of offending.

32. I accept the applicant’s narration of the consortium of friends and that there was no intent to sell drugs but rather to find a new mechanism to save money on the drugs that she and her friends had been consuming. In effect, the applicant found a way to cut the middleman. While the judge in the District Court was not convinced that the applicant was not selling or supplying the cannabis, such that the charge would be dropped or reduced to a lesser charge, the sentence along with the applicant’s evidence leads me to placing some weight in favour of cancelling the visa. To add clarity, was I of the view that the applicant was onward selling or supplying the marijuana to make a profit I would place ‘great weight’, but in this instances I place the lesser, ‘some weight’.

    past and present behaviour of the visa holder towards the department

33. The applicant is currently on a Bridging Visa E with conditions 8401, 8506, 8564 and 8207. These conditions are:

    8207: The holder must not engage in any studies or training in Australia.

    8401: The holder must report: (a) at the time or times; and (b)  at a place or in a manner; specified by the Minister from time to time.

    8506: The holder must notify Immigration at least 2 working days in advance of any change in the holder's address.

    8564: the visa holder must not engage in criminal conduct

34. There is no indication that the applicant has breached any of her current conditions. As this is a minimum expectation of visa holders, I place limited weight against cancelling the visa on this factor.

    whether there would be consequential cancellations under s.140

35. There are no consequential cancellations under s 140 and as such I place no weight on this factor.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

36. Following the applicant’s bridging visa’s cancellation by the Department and subsequently her appeal to this Tribunal the Department granted the applicant a Bridging Visa E subclass 050.

37. If the applicant’s Bridging Visa A subclass 010 is cancelled and she exhausts any rights of judicial review she will not become an unlawful non-citizen due to holding the subclass 050 visa and as such she will not be liable for detention or removal. The applicant’s movement record, which shows the visas a non-citizen holds, indicates that the subclass 050 bridging visa that the applicant currently holds does not have an end date. In other words, was this appeal to be upheld and in the event of the exhaustion of all legal avenues to have the visa reinstated, the Department would then need to activate the cancellation process again to end the Bridging Visa E that she is currently holding.

38. The applicant’s representative put to the Tribunal that the Bridging Visa E was granted in association with the appeal to this Tribunal and not related to the pending subclass 186 visa and as such there would be an expectation that the applicant would depart Australia if the process is finalised against her. While I accept the expectation would be there, the applicant would have every right to remain as long as she continues to hold a valid visa and as such the consequence of cancellation of the current visa remains negligible. Since the cancellation would not lead to removal but rather a possible future process of cancellation, I place limited weight against cancellation.

39. If the visa is cancelled the applicant will be affected by Public Interest Criteria 4013. This would limit the applicant’s ability to apply for certain visas for three years following the initial cancellation. I give this minimal weight against cancellation for the reason that the applicant has said that her partner would leave Australia together with her and as such the impetus to return would be minimised but not non-existant.

    whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

40. The applicant is from Germany, she has not raised any fears of return. The applicant does not have any children and as such the Convention on the Rights of the Child is not relevant. There are no other international obligations that would be breached because of the cancellation of the applicant’s visa. As such I place no weight on this factor.

    any other relevant matters

41. The applicant said that she was welcomed back by her then employer despite being arrested and charged with drug offences. Her partner at that time was promoted and as a result they moved away from the Fremantle area where they were living and settled in north Perth. This led to the strengthening of their relationship and moving away from the friends with whom they were smoking marijuana. The applicant has expressed remorse for the circumstances she was involved in. She has taken active measures to distance herself from the circumstances which led her to become involved in smoking marijuana. The applicant stated that neither she nor her partner have smoked marijuana since her time in remand three years ago. She said that the experience woke her up and matured her. She said that none of her current social group smokes marijuana or misuses drugs. I place some weight against cancelling the visa for the reason of her subsequent actions since her arrest.

1. The applicant is currently working on a mining site in Pilbara, northern Western Australia, as she realised that she needed to save money to study naturopathy in Australia. She is working towards getting an entry level job as a truck driver but currently works as a cleaner. I give limited weight against cancelling the visa for the reason that she is showing a commitment to planning a future in Australia by earning the money to be able to afford a naturopathy degree.  

2. The witness provided evidence relating to her friendship with the applicant. She said that she has known the applicant since September 2019. The witness was the applicant’s supervisor. The witness lauded the applicant’s skills and work ethic. After a while they became friends and continued to stay in touch. She noted that it is extremely difficult to find chefs in Western Australia at the moment and were the applicant and her partner to leave together it would impact the partner’s employer. Furthermore, she explained that the applicant’s narration of her friendship group smoking marijuana was not unusual, especially in the Freemantle area. The witness also commended the applicant’s trustworthiness.

3. The applicant provided 22 character references which spoke positively of the applicant, supported her claims of remorse and aligned with the narration of events the applicant had provided at the hearing. The character references provided in writing alongside that of the witness has contributed to my positive credibility findings of the applicant and my accepting the applicant’s narration of events as fact.

4. I recognise the need for chefs in Western Australia and the impact this would have on the partner’s employer. I place limited weight against cancelling the visa for the reason of the impact the cancellation would have on the partner’s employer.

5. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

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

   Denis Dragovic
   Senior Member