Jan (Migration)

[2020] AATA 1557

Jan (Migration) [2020] AATA 1557 (30 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kyle Blair Jan

CASE NUMBER:  2005658

HOME AFFAIRS REFERENCE(S):          BCC2020/1111180

MEMBER:James Lambie

DATE:30 March 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

Statement made on 30 March 2020 at 3:38pm

CATCHWORDS

MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – criminal charge, conviction and suspended sentence – other pending charges – discretion to cancel visa – previous convictions and fine – physical and mental health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g)

Migration Regulations 1994 (Cth), rr 2.43(p)(ii)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that prescribed grounds exist under r.2.43(1)(p)(ii), namely, that the applicant has been charged with offences under Queensland and Commonwealth law. 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 appeared by video link before the Tribunal on 27 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Ms Sidoney Bassett, the applicant’s fiancée.

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

5. 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

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. Relevantly, to this case, these include the ground set out in s.116(1)(g). 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?

7. A visa may be cancelled under s.116(1)(g) if the Minister is 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)(p)(ii) is relevant.

8. Mr Jan was convicted in the District Court of Queensland on 23 January 2020 of one count of supplying Schedule 1 dangerous drugs (MDA) on 19 September 2017. He was convicted and sentenced to a term of imprisonment for three years, suspended for a period of three years. He has also been charged with one count of receiving or possessing property obtained from trafficking or supplying dangerous drugs and one count of possessing tainted property. Those matters are yet to go to trial.

9. In June 2014, Mr Jan was convicted of eight charges connected to his importation and use of human growth hormone and anabolic steroids. In respect of those matters, he was convicted and fined $1500.

10. In respect of the convictions, at least, it was accepted by the applicant and his representative that the prescribed grounds exist. However, in respect of some of the factual substrate relating to the 2017 and 2018 offences, Mr Jan and his representative made submissions zrelevant to the discretionary factors discussed below.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) 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. In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in r.2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s.499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.

13. The primary considerations are:

    ·the Government’s view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

    ·the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

14. The secondary considerations are:

    ·the impact of a decision to cancel the visa on the family unit;

    ·the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·the circumstances in which the ground for cancellation arose;

    ·the possible consequences of cancellation; and

    ·any other matter considered relevant.

15. The Direction states that primary considerations should generally be given greater weight than any secondary considerations, one primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources. The Tribunal has also 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’.

16. I must, and do, place considerable weight on the fact of the charges as a primary consideration. He has been convicted of the most serious of these. Mr Jan made submissions that I should have regard to the sentencing remarks in respect of his conviction (on 23 January 2020). They are discussed further below.

17. There are no children under the age of 18 in Australia who would be affected by the cancellation, so no weight is given to the latter of the primary considerations.

18. I heard from Mr Jan as to his personal circumstances and the reasons he gave that the bridging visa should not be cancelled. I also received written and oral submissions from his representative and evidence from his fiancée.

19. There are no members of Mr Jan’s family unit whose visa status is affected by the cancellation decision. I give no weight to this consideration.

20. A decision to cancel Mr Jan’s Visa may result in him being detained under section 189 as he will no longer hold a valid Visa. This would result in significant financial, emotional and psychological hardship arising not only from the fact of his detention, but also arising from his inability to work and the physical separation from Ms Bassett. I give some weight to this.

21. Mr Jan made particular submissions in relation to his vulnerability to COVID-19 were he to remain in detention. He submitted that he may be particularly vulnerable to complications of any infection arising from the injuries he sustained in a stabbing attack in January 2018. This vulnerability, he said, arises from diminished lung capacity and scarring of the lung. The tranche of medical reports he initially submitted related to a post-operative complication connected to the sutures and skin scarring and not, in any way that I could discern, diminished lung capacity or other identified vulnerability. The medical records provided post-hearing indicate that the stabbing resulted in a pneumothorax and a haemothorax. There is some discussion of a possible puncture to the right lung itself but nothing explicit in any of the material as to diminished lung capacity. There is nothing in the way of an expert medical report directing itself to Mr Jan’s current state of respiratory health or vulnerability in the case of infection.

22. The circumstances which gave rise to the grounds for cancellation involve a conviction for trafficking in dangerous drugs such as to incur a head sentence of three years’ imprisonment. I have had regard to the sentencing remarks, to Mr Jan’s psychiatric history, to the personal references and to the evidence of Mr Jan and Ms Bassett. While it is clear that Mr Jan underwent some troubled and troubling experiences in 2017 and 2018, the nature of the matters of which he has been convicted and the matters charged cannot, I think, be said to arise from circumstances beyond his control.

23. Mr Jan has been in Australia on a subclass TY 444 visa, to which no special conditions are attached. I therefore give no weight either way to the extent to which he has complied with his visa conditions. Mr Jan has been reported to have been cooperative with the Department, and to that I attach a small degree of weight.

24. I have had regard to the mandatory legal consequences which may flow from the cancellation of his visa, including his liability to detention and his inability to apply for further visas while in detention. I give a degree of weight to those considerations.

25. There are no international obligations that might be invoked or breached as a result of any cancellation.

26. I have also had regard to the employment contract and character reference provided by Mr Jan’s employer. I have also had regard to the material he submitted indicating that he is undergoing weekly psychological treatment, has undertaken courses to deal with his drug problems and that he is seeking qualifications in social work. He has submitted negative drug screening reports spanning about 18 months. I give some weight to his professed desire to rehabilitate himself while also recognising the logical and legal necessity for him to do so.

27. Having regard to the primary and secondary considerations, I consider that the fact of the conviction and charges (as a primary consideration) and the nature of the charges and the circumstances in which they arose (as a secondary consideration) to be matters of considerable gravity. While there are personal consequences for Mr Jan to which I have given some weight, the evidence, on balance, favours the cancellation of the visa.

28. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

29. The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

    James Lambie
    Senior Member