Jan (Migration)
[2020] AATA 3016
•21 May 2020
Jan (Migration) [2020] AATA 3016 (21 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Kyle Blair Jan
CASE NUMBER: 2001430
HOME AFFAIRS REFERENCE(S): BCC2020/412786
MEMBER:James Lambie
DATE:21 May 2020
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.
Statement made on 21 May 2020 at 11:24am
CATCHWORDS
MIGRATION – cancellation – Subclass 444 (Special Category) visa – risk to safety of Australian community – criminal offences – importation and supply of drugs – presence of family members, fiancée and business ties in Australia – decision under review affirmedLEGISLATION
Mental Health Act 2016
Migration Act 1958, ss 116(1)(e)(i), 140, 359A
CASES
Ferdous v MHA [2019] FCCA 1862
Gong v MIBP [2016] FCCA 561
Moana v MIBP (2015) 230 FCR 367
Tien v MIMA (1998) 89 FCR 80Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 24 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e)(i) on the basis that the applicant’s charges and convictions in respect of the importation and supply of dangerous drugs indicates that his continued presence in Australia is or may be a risk to the safety of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 20 April 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] and [Ms B].
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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)(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?
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.
On 3 April 2020, pursuant to summons, the Tribunal received copies of the applicant’s Queensland court outcomes and court briefs (form QP9) from the Queensland Police Service. These were provided to the applicant’s representatives on 19 April 2020 under cover of a letter pursuant to section 359A. Similar and additional documents had been provided to the Tribunal by the applicant’s representatives under cover of a submission dated 3 April 2020.
Mr Jan lived in New Zealand with his family until, at the age of 22, he moved to Australia in 2010 as the holder of a special category (subclass 444) visa. He has travelled outside of Australia periodically and only for brief periods during this time. His evidence is that he decided to move to Australia in 2010 to remain close with his long-term friends who had migrated to Australia from New Zealand, and to reunite with his older sister, [Ms B], who had moved to Australia in 2005. The applicant has two sisters, both of whom reside permanently in Australia. Since arriving in Australia, Mr Jan has been employed as a sales representative, manager, and as a national sales manager for a nutritional supplement company.
Mr Jan has been charged and/or convicted with the following offences:
Date
Offence
Order
19 June 2014
Import tier 1 goods without approval (on/about 17 March 2013) (x2)
Import tier 1 goods without approval (on/about 23 March 2013) (x2)
Possess dangerous drugs (on 6 June 2013) (x3)
Possess utensils, pipes, etc for use (on 6 June 2013)
Convicted, fined $1500
Convicted, fined $1500
23 March 2020
Supply schedule 1 dangerous drugs (MDA) (on 29 July 2017)
Convicted, 3 years imprisonment, suspended for 3 years
---
Possess dangerous drugs (cocaine) (on 20 January 2018)
---
---
Possess dangerous drugs (diazepam)
---
---
Receive or possess property obtained from trafficking or supplying (on 31 March 2018)
---
---
Possess tainted property (on 31 March 2018)
---
The last four of the offences are listed to be heard in the Southport Magistrates Court, but their finalisation has been delayed by the restrictions in response to the COVID-19 pandemic. Mr Jan is pleading not guilty to these charges.
The offences of which Mr Jan was convicted in 2014 involved the importation of human growth hormone, testosterone and anabolic steroids from Hong Kong. These were imported in relatively small quantities and were intended for Mr Jan’s personal use for image and performance enhancement. Mr Jan’s evidence to the Tribunal was that he had had the product recommended to him by a fellow bodybuilder. He says that it was not intended that any of these products be resupplied. He has suffered long-term consequences from the misuse of these products and continues to receive medical treatment for their side-effects.
Mr Jan’s criminal lawyers submitted that these drugs are in a completely different category to those in respect of which he was convicted in 2020 and that this is reflected in the “nominal” fines that were imposed. While that submission has merit, to which I have given some weight, I have also had regard to the policy underlying the restrictions to which these drugs are subject. With the passage of time since the importation has occurred, I would not consider that matter in isolation to indicate that Mr Jan is a risk to the community but the fact of the importation does form part of the factual matrix of what follows and will be referred to below, where relevant.
The delegate found that:
the importation of dangerous drugs is in direct conflict with the Australian Government’s National Drug Strategy 2015 to 2025 which aims to contribute to ensuring safe, healthy and resilient Australian communities through minimising alcohol, tobacco and other drug-related health, social and economic harms among individuals, families and communities. The distribution and sale of illicit drugs in Australia affects all areas of the Australian community, not only those using the drugs but including associated family members and friends who may interact with them whilst the Australian community faces health, safety or good order outcomes as a result of these activities.
The charges and previous convictions against the visa holder, particularly involving the alleged supplying of dangerous drugs, indicates that the Visa holder’s continued presence in Australia is or may be a risk to the safety of the Australian community.
It was said on behalf of the applicant, firstly, that departmental policy (see PAM – 3) provides that charges must not be equated with guilt. As noted above, Mr Jan is contesting the charges pending against him and has pleaded not guilty.
Second, it was said that:
the concept of the potential risk that may be posed by an individual in the context of deciding whether a visa cancellation under section 116 of the act should be set aside, the Tribunal should have regard to the recent decision of Burton [2018] AATA 4220: in particular, that pending criminal charges may be considered in the Tribunal’s examination of the potential risk that the applicant may pose to the Australian community in the future because section 116(1)(e)(ii) is directed to the risk to the safety of an individual or individuals and contemplates targeted violence such as domestic violence. The Tribunal further states that it is also possible that there may be a risk to safety if the Visa holder is charged, but not convicted, of serious violent criminal conduct [emphases in the submission].
I do not accept that it is correct to conflate the two separate grounds in section 116(1)(e)(i) – the ground for cancellation in this matter – and 116(1)(e)(ii). The ground I am asked to consider in respect of Mr Jan is that his continued presence in Australia is or may be, or would or might be, a risk to the health, safety and good order of the Australian community. Within this ground there is nothing to confine the existence of charges or convictions to those for serious violent criminal conduct or targeted violence. It is not difficult to posit examples of non-violent criminal conduct that would satisfy the test, leaving aside the fact that the ground is nowhere confined to criminality. I have no doubt that engaging in the supply of schedule 1 dangerous drugs (or, for that matter, the importation of tier 1 goods without approval) prima facie constitutes a risk to health, safety and good order of the Australian community, or a segment of the Australian community. The matter to which I must direct myself is whether, taking into account the circumstances of the offending or the applicant’s personal circumstances, the threshold for the prescribed risk is not met.
In relation to the circumstances of the offending, it was submitted by the applicant that he had imported growth hormone and steroids for personal use, in an attempt to hasten his recovery from a shoulder injury and for body image enhancing. He decided to purchase the substances through the internet, from an overseas supplier, because they were less expensive than purchasing the substances in Australia. The substances were shipped to Mr Jan in two separate parcels which were intercepted by Australian Customs. Not having realised that the substances had been seized, he followed the matter up with the Hong Kong supplier which then sent a further two parcels which were also intercepted.
While the applicant submits that the matter was relatively minor, reflected in a total fine of $3000, I note that the magistrate ordered the recording of convictions. However, the charges themselves only allege recklessness as to the facts that the goods had been listed under tier 1 and that their importation was prohibited without approval. I give a small degree of weight to this fact in the applicant’s favour.
The circumstances surrounding the offence of which he was convicted on 23 March 2020 are more complex and relate to very much more serious offending: the supply of 3000 MDA tablets. A head sentence of three years’ imprisonment reflects the seriousness of the offence. It is the applicant’s submission that the suspension of that sentence for three years reflects both the circumstances of the offending and his self-rehabilitation.
It is Mr Jan’s account that, in about May 2017, his fiancée left him for someone else which plunged him into severe depression. This condition caused him to attempt suicide on two different occasions. He was issued with an involuntary treatment authority under the Mental Health Act 2016 and admitted to hospital for a period of nine days. He says that, during 2017, he began self-medicating with drugs and became a regular user of cocaine, Xanax and OxyContin. He was originally provided the drugs by his friends at the time and soon began exchanging favours for drugs as a way to help feed his addiction. He says that the supply of the 3000 MDA pills was done under this arrangement. He conceded, under caution, that he had done similar “favours” on more than one occasion but declined to give a number or to be drawn on the quantities of drugs that might have been involved. At the time, he says, he was in “an incredibly negative mindset” and was taking whichever actions were required to continue his access to drugs.
In January 2018, Mr Jan was stabbed in the chest by the partner of his former fiancée. The injury he sustained was life-threatening and required emergency surgery. While police were investigating this incident, they searched Mr Jan’s car and located two small clip seal bags, the subject of the cocaine charge. He was issued a notice to appear after being interviewed on 13 March 2018. On 31 March 2018, police executed a search warrant on Mr Jan’s residence, following which he was charged with the drug supply, property obtained from supplying dangerous drugs and tainted property offences.
He claims that it was the traumatic experience of the stabbing that caused him to re-examine his life and to take steps to improve himself. He attended psychological counselling, completed a drug and alcohol program in October 2019 and has commenced a diploma of psychology. He has disassociated himself from his previous friendship network and ceased all forms of drug use. In evidence were drug screens provided by QML Pathology indicating that Mr Jan has tested clear of drugs for the period July 2018 to January 2020.
In relation to the pending charges, Mr Jan gave evidence to the Tribunal that he believes that he has a strong defence and that he expects the charges to be dropped. A post hearing submission, attaching an advice from his criminal lawyers, however, does not refer to the prospect of a prosecution not proceeding. It advises that the charges will be contested and that his solicitors are confident of success. I can give this only a small degree of weight and would be surprised if their assessment to this tribunal was otherwise. The tainted property charge, I note, is highly specific and its particulars allege that a large quantity of luxury goods have been matched to sales records and recovered receipts, and that these purchases and his bank records are irreconcilable with his and his fiancée’s legitimate income. Mr Jan was given the opportunity to exhibit his bank records under caution but, perhaps understandably, declined.
In accordance with departmental policy as expressed in PAM3, I do not equate the pending charges with guilt. I also note that, as the tribunal has previously stated (for example, in Burton) the Tribunal cannot undertake a meaningful assessment of the prospects or strength of the charges in the absence of undertaking its own assessment of the evidence or having the benefit of the results of concluded committal process where the court finds there is a prima facie case to answer on the basis of the evidence presented. To have regard to evidence contained in a criminal brief for charge sheets without giving the applicant the opportunity to respond would breach the rules of procedural fairness. On the other hand, raising contentious issues after giving the applicant the appropriate warning is likely to elicit a less than meaningful response and it would be unreasonable in the circumstances to draw a negative inference from such a response.[1]
[1] Burton [2018] AATA 4220 at [51]
Nonetheless, when considering the 2020 conviction, I have taken note of the District Court’s sentencing remarks, which are drawn from admitted facts. The transaction in respect of which Mr Jan was convicted involved 3000 MDA pills containing 844.1g of substance, sold for $17,500. The court assessed the retail value of the drugs at approximately $75,000. It was Mr Jan’s evidence to the tribunal that he was merely an intermediary in the transaction and was paid in drugs, while there are clear references in the particulars of the pending charges to a degree of commerciality in Mr Jan’s involvement. The material that might tend to support his own account of his methods and motivations is in his own possession. I do not consider it inconsistent with the principles expressed in paragraph 26 to draw a negative inference as to Mr Jan’s evidence of his methods and motivations in respect of the matter of which has been convicted. He claimed not to have profited from the transactions but declined to produce material to confirm that account. I note that the claim not to have received personal benefit beyond the supply of drugs for personal use was not a matter that was put to the District Court.
In the circumstances, in order not to make any positive finding as to the profitability of the drug transaction(s) as indicated in the court briefs, I consider the appropriate course is to give no weight to Mr Jan’s evidence that his involvement in the supply of drugs was merely a favour in order to maintain access to drugs for his own use. I am therefore satisfied that the applicant was involved in a drug transaction of significant size and make no finding as to his motivation.
The applicant’s submissions emphasised the District Court’s decision to wholly suspend the sentence for a period of three years as a very strong indication that he has rehabilitated himself and therefore poses no risk to the community. I have very carefully considered the sentencing remarks and the submissions made by him and his representatives on this subject. However, it should also be noted that the Court, as a starting point, took into account the need to ensure that the sentence contained a significant personal and general deterrent effect, that the community was protected, and also to communicate the community’s denunciation of offences of this nature. The Court, in suspending the sentence, took care in reminding the applicant of the prospect of serving the term of imprisonment if he should reoffend. All of these matters are directed to the mitigation of the risk to the community posed by the applicant’s offending. I therefore cannot accept that the suspension of the sentence can be taken as a determination that the applicant poses no risk to the community.
The applicant’s contribution to his own rehabilitation, which was the subject of favourable remarks by the court, is a matter to which I give some weight and is discussed further below. However, in assessing the applicable risk in s116(1)(e)(i), I consider that the applicant’s past conduct must be fully taken into account and that I am not confined to considering risk in a prospective sense.
In assessing the risk, there is no duty to articulate the degree of risk to safety in every case.[2] In Ferdous v MHA [2019] FCCA 1862, Judge Driver followed the Full Federal Court’s judgment in Moana v MIBP (2015) 230 FCR 367, which considered the discretion in s 501(2) of the Act to cancel a visa if a person does not satisfy the Minister that the person passes the character test set out in s 501(6). Judge Driver said that though he was dealing with different legislation the principles discussed in Moana were the same. In Moana, Rangiah J said that each of the criteria in s 501(6) involves a risk of harm of some kind to the Australian community posed by a person entering or remaining in Australia.[3] Rangiah J went on to say, in a passage cited in Ferdous:
It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.
I consider that the seriousness of an offence or other relevant past conduct may … lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend in harmful conduct… In a particular case… the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable.[4]
[2] Ferdous v MHA [2019] FCCA 1862 at [49].
[3] Moana v MIBP (2015) 230 FCR 367, at [56].
[4] Moana v MIBP (2015) 230 FCR 367, at [71]–[72], cited in Ferdous v MHA [2019] FCCA 1862 at [47].
In the context of risks to safety, departmental guidelines indicate that the risks from which the Australian community or a segment of the community, are to be protected from include injury, danger and physical harm. A specific example given is that of a person who has been charged with offences relating to the manufacture or possession of large quantities of illicit substances, provided there is a logical link between the alleged commission of the offences and a risk to the Australian community or a segment of the community.[5]
[5] PAM3: POLICY - MIGRATION ACT – Visa cancellation instructions – General visa cancellation powers (s109, s116, s128, 134B & s140) – s116(1)(e) - Risk to community, public health, safety or good order – Risk to safety (re-issue date 1/7/17).
MDA is a psychostimulant amphetamine and is also widely used as a metabolite or adulterant of MDMA. It has no accepted medical use. In toxic doses it may cause increased blood pressure and heart rate, dramatic increases in body temperature, convulsions, cardiac arrest, stroke and death. It is listed at Schedule I of the Drugs Misuse Regulation 1987 with the other so-called ‘hard’ drugs. The quantity and value of the drugs involved in the single transaction for which the applicant was convicted (referred to in paragraph 27) was, on any view, substantial. I am satisfied that this single transaction both aided the distribution of the drug in a significant quantity for its manufacturers and distributors higher in the supply chain (this enterprise posing a risk to the health, safety and good order of the Australian community) and facilitated distribution to consumers of the drug (posing a risk to the health and safety of a segment of the Australian community). In doing so, I reject the submissions of the applicant’s representatives that s. 116(1)(e)(i) is confined to the risk of infliction of physical violence or other means of bringing physical harm to the Australian community.
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
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’.
I have considered the purpose of Mr Jan’s travel and stay in Australia and whether he has a compelling need to travel to or remain in Australia. I have described the circumstances of his travel to Australia in paragraph 10 above. He says he moved to Australia in order to remain close with his childhood friend who had previously migrated from New Zealand and to reunite with his sister [Ms B] with whom he remains very close. He maintains full-time employment and is in the process of completing qualifications which he believes will assist him to continue to advance his career in Australia. In addition, he hopes to acquire further qualifications and to commence a career in social work. He claims that, since committing the offences described above, he has made positive changes to his life, to which he owes the contribution of his support network in Australia including his close family members and those of his fiancée, and to his psychologists and counsellors. He claims that if he was suddenly required to depart Australia and removed from his support network, there is a significant risk that he may relapse into depression and fall back into the patterns that led to his previous criminal behaviour. It was therefore submitted that remaining in Australia, close to his family and his trusted mental health professionals, should be considered a compelling reason for Mr Jan to remain in Australia. I give all of these matters some weight in the applicant’s favour.
Mr Jan’s special category (subclass 444) visa is a temporary visa enabling him to remain in Australia indefinitely and to undertake work. There are no visa conditions attached to it and, therefore, the degree of his compliance with these conditions is not a relevant consideration.
I have carefully considered the degree of hardship that may be caused to the applicant, his family members and others. Mr Jan is engaged to [Mr A], who is an Australian citizen. Both gave evidence of their intention to remain in Australia together for the long-term. Both gave evidence that the prospect of Mr Jan’s removal from Australia causes and would cause very considerable emotional hardship for both of them. Mr Jan’s evidence is that it is “not thinkable” for him to be separated from [Ms A]. [Ms A] gave evidence of the extent to which they have integrated their lives. They share [Ms A]’s house [in City 1], on which she pays the mortgage and Mr Jan contributes to the other expenses. They own a dog together. One notable aspect of their relationship is that [Ms A] [has siblings] and has a particularly close relationship with her sister and mother, such that they all live within close walking distance of each other. She says that, if Mr Jan was to return to New Zealand, she would accompany him, but it was clear from her evidence that she would find that a severe emotional wrench. [Ms A] currently tends to the special needs of her mother and her grandmother which, no doubt, compounds the emotional dilemma.
I also heard evidence from [Ms B], the applicant’s sister. She moved from New Zealand to live [in City 1] approximately 15 years ago and now lives in [another state]. She shared a house with him for a period in 2017 and was able to relate to the Tribunal that she was aware of, and worried about Mr Jan’s mental health at this time. She said that there has been a 100% change in his outlook since he commenced his relationship with [Ms A]. Her evidence is that she would be greatly saddened if he was to return to New Zealand because she would not be able to visit or see him often. She says he has no longer any close friends in New Zealand and only his parents for support. She feels that Mr Jan would struggle emotionally and that his career prospects would be limited due to the comparative lack of opportunities. Both of the applicant’s sisters are now Australian citizens.
I also had the benefit of letters of support from [Ms C] ([Ms A]’s mother), who advised she has [a health] condition and that [Ms A] drives for her and runs errands for her, such that she is quite dependent upon her. She also says that [Ms A]’s grandmother is now too frail to travel and that the prospect of the family being separated is heartbreaking. [Ms C] is also receiving treatment for depression, which she believes would be very difficult to manage were the applicant to be returned to New Zealand.
[Ms D] is [Ms A]’s [sister] and gave evidence to similar effect to that of their mother. She noted that their mother and grandmother are dependent upon the sisters to transport them to medical appointments. She does not believe she could manage this without [Ms A]’s assistance. She also gave evidence of her own emotional attachment to the applicant.
I have also had regard to letters of support from [names deleted] as to their relationship with Mr Jan and his reformed character.
The evidence of emotional and – at least in the case of the applicant and [Ms C] – psychological hardship are matters to which I have given significant weight in favour of the applicant. There is little evidence of the financial hardship that might be occasioned to [Ms A], although I note that it is clearly of assistance to her to have Mr Jan contribute to the household expenses. I have also had regard to the letter of support from [the] applicant’s employer. I accept this as evidence that Mr Jan has employment and prospects in Australia which may be disrupted by his return to New Zealand. There are no children whose interests might be affected by the visa cancellation.
I have had regard to the circumstances in which the ground of cancellation arose. This was canvassed extensively at the hearing and forms part of the discussion of the existence of the grounds of cancellation above. In particular, I have given careful consideration as to whether it could be said that the ground for cancellation arose in circumstances that were beyond the applicant’s control. It was said both by the applicant and on his behalf that his previous mental illness should be considered a significant extenuating factor in his criminal offending. Mr Jan’s Mental Health Treatment Authority, under which he was provided with involuntary treatment, was cited as evidence that he was unable to comprehend his actions at this time and was indicative of his compromised mental health. It was said that his reliance on dangerous drugs and his depression significantly affected his capacity to make logical or rational decisions and significantly contributed to his offending. With the submissions tendered on the applicant’s behalf, there was a psychologist’s report from Craig Holt and Associates dated 17 January 2020, prepared for and referred to in the District Court’s sentencing remarks. The report refers to the applicant’s psychological and psychiatric history and makes some brief remarks as to the reason for his offending: “Mr Jan reported severe emotional distress with suicidal ideation and intent, following the breakup of his relationship. He experienced severely impaired decision-making. He attempted to self-medicating his distress inappropriately. He expressed regret and remorse regarding his behaviour and determination not to reoffend.”
While I have given the submissions and psychologist’s report very careful consideration, I can find no expert material to support the view that Mr Jan’s offending occurred in circumstances that were beyond his control. His guilty plea, discussed in the sentencing remarks, does not seem to have contained an element of diminished responsibility. The sentencing judge discusses the psychological report briefly, mentioning the applicant’s “decline into the world of drugs” but relying on it principally in the context of rehabilitation. For the reasons given in paragraph 27 above, I have been able to form no concluded view on the applicant’s methods and motivations for his offending. Thus, while I have given him the benefit of the doubt in relation to the profitability of the offending, I cannot conclude that his mental state was such that his behaviour was so irrational that the offending could be said to have arisen in circumstances beyond his control.
I give a degree of weight to the fact that he had underlying psychological problems. I give a more substantial degree of weight to the efforts he has made in his own rehabilitation, including maintaining a complete abstinence from illegal drugs, undertaking psychological counselling at his own expense and seeking to improve himself through his studies towards qualifying as a social worker.
The delegate’s decision record states that Mr Jan had been pleasant and cooperative throughout the interview process. I therefore accord a degree of weight in his favour to his past and present behaviour towards the Department.
The cancellation of the applicant’s visa would not result in any consequential cancellations. This factor is therefore not relevant to the application.
Cancellation of the visa would render the applicant an unlawful noncitizen and therefore liable for detention under section 189 and removal under section 198 of the Migration Act should he not leave Australia voluntarily. He would also, under section 48 of the Act, have limited options to apply for further visas in Australia. The operation of Public Interest Criterion 4013 would limit the grant of further temporary visas for a specified period. I give this consideration some weight in the applicant’s favour.
It is not suggested that any international obligations might be invoked in relation to cancellation of the visa.
It was submitted that Mr Jan has formed strong family, business and supportive ties to Australia. The family matters are discussed above. His representatives have submitted that, in addition to his full-time employment and the courses he is currently undertaking, Mr Jan owns the copyright on a nutrition and exercise computer application. It was said on his behalf that, because the app is registered and copyrighted in Australia, Mr Jan would not be able to continue to develop it if he were required to depart. I am not convinced that these legal consequences necessarily follow and see no reason why the intellectual property could not be protected in New Zealand, or the development work continue from there protected by Australian intellectual property law. In any event, the factor to which this submission was addressed applies to applicants with a permanent visa. Mr Jan holds a temporary visa, albeit with indefinite residence and work entitlements.
Taking into account all of these factors, I have given the greatest weight to the fact and nature of the offending behaviour and the indicators of risk they carry for the health, safety and good order of the Australian community. I have given very careful consideration to the hardship that may be occasioned to him, his family and his fiancée’s family by the cancellation of the visa and to the progress of his rehabilitation but, on balance, find that these factors cannot outweigh the risk to the community that his continued presence in Australia may pose, as discussed in paragraphs 27 to 34 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 444 (Special Category) visa.
James Lambie
Senior Member
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