Lee and Minister for Home Affairs (Migration)

Case [2019] AATA 871

Lee and Minister for Home Affairs (Migration) [2019] AATA 871 (15 May 2019)

Division:GENERAL DIVISION

File Number(s):      2019/1069

Re:Sang Foo Lee

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member K Raif

Date:  15 May 2019

Place:Sydney

The decision of the Respondent dated 21 February 2019, to refuse to revoke the mandatory cancellation of the Applicant’s visa made under section 501(3A) of the Migration Act 1958 (Cth), is affirmed.

....................[sgd].........................

Senior Member K Raif

CATCHWORDS

MIGRATION – Class BS Subclass 801 Partner visa – mandatory visa cancellation – non-revocation – failure to pass the character test – Ministerial Direction No. 79 – substantial criminal record – trafficking, possession and importation of a commercial quantity of prohibited drugs – use of prohibited drugs and alcohol – supply of prohibited drugs – gambling – drink driving offences – primary considerations – protection of the Australian community – expectations of the Australian community – best interests of minor children – strength nature and duration of ties – hardship in the event of removal – Singapore – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

DKXY v Minister for Home Affairs [2019] FCA 495

Do and Minister for Immigration and Border Protection [2016] AATA 390

Nguyen and Minister for Immigration and Border Protection (Migration) [2018] AATA 4664

Pochi v Minister for Immigration and Ethnic Affairs (1982) 151 CLR 101

R v Leroy (1984) 13 A Crim R 469

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

Wilson v the Queen; DPP v Sassine; DPP v Kalakias; Wilson v the Queen [2012] VSCA 141

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

ZCNR and Minister for Home Affairs [2018] AATA2511

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member K Raif

15 May 2019

BACKGROUND

  1. This is an application for review of a decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of a Class BS Subclass 801 Partner (Residence) visa held by the applicant.

  2. The applicant is a national of Singapore, born in November 1962. He first travelled to Australia in 2003 on a visitor visa and was subsequently granted a Partner visa. His permanent Class BS Subclass 801 visa was granted in 2011.

  3. In September 2015 the applicant was convicted of importing a commercial quantity of border controlled drugs. He was sentenced to 12 years imprisonment. On 22 January 2018 the applicant’s Class BS Subclass 801 Partner visa was cancelled under s. 501(3A) of the Migration Act 1958 (Cth) (“the Act”) because it was determined that the applicant did not pass the character test. The applicant was invited, and made representations about the revocation…

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AGLC
Lee and Minister for Home Affairs (Migration) [2019] AATA 871
Case
[2019] AATA 871
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the applicant, Mr Lee, for revocation of a mandatory visa cancellation decision made by the Minister for Home Affairs. The applicant sought to have his Class BS Subclass 801 Partner visa cancellation revoked. The Administrative Appeals Tribunal considered the applicant's request and the evidence presented by both parties in relation to Ministerial Direction No. 79.

The Tribunal was required to determine whether there was any other reason why the original decision to cancel the applicant's visa should be revoked, considering the primary considerations outlined in Ministerial Direction No. 79. These considerations included the protection of the Australian community, the expectations of the Australian community, the best interests of any minor children, the strength, nature, and duration of the applicant's ties to Australia, and any hardship that would be caused by removal from Australia. The applicant conceded that he did not pass the character test due to a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more.

The Tribunal's reasoning focused on the applicant's criminal history, which included drug trafficking, possession, and importation of a commercial quantity of heroin, as well as drink driving offences and gambling-related debt. The applicant claimed involvement in drug importation was due to duress and threats, but the Tribunal noted the significant scale of the importation and the applicant's role as a middleman. Despite the applicant's submissions regarding hardship and ties to Australia, the Tribunal found that the protection of the Australian community was a paramount consideration, and the seriousness of the offences weighed heavily against revocation. The Tribunal affirmed the original decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In his evidence to the Tribunal the applicant concedes that he has a substantial criminal record and does not pass the character test. The Tribunal finds that the applicant has been sentenced to a term of imprisonment of 12 months or more. He has a substantial criminal record as defined in s. 501(7)(c) and (d) of the Act. As the applicant has a substantial criminal record, he does not pass the character test. IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? The applicant made a request for revocation of the cancellation decision on 25 May 2018. The Tribunal has considered the applicant’s comments, in addition to the evidence subsequently provided to the Tribunal by the applicant and the respondent. The Tribunal’s considerations are set out below with regard to the Direction 79.Primary considerations Protection of the Australian community As noted above, the applicant has been convicted of several offences in Australia. The two earlier driving offences resulted in disqualification, a fine and community service order. The offences that occurred in 2015 were significant, resulting in a lengthy custodial sentence. The nature and circumstances of the applicant’s offences are set out in various submissions the applicant made to the delegate and the Tribunal, as well as court documents. In his revocation request dated 25 May 2018 the applicant states that he began to gamble and acquired a significant debt. The pressure of repaying the debt led him to ‘inadvertently’ become involved in a heroin importation group. The applicant states that he was lent money by a ‘gangster’, who asked the applicant to assist him with importation of goods in exchange for reducing interest on his debt. The applicant claims he was assured that the work involved was legal. Upon realising that the importation was not legal, the applicant stated that he did not want to take further steps relating to the importation but he was put under duress and threats were made on his life and the lives of his mother and wife. In his Statement of Facts, Issues and Contentions (SFIC) dated 21 March 2019 the applicant states that between April and June 2012 he was involved in the unlawful importation of a commercial quantity of heroin, the total pure weight of which was close to 14,000 grams and with the wholesale value exceeding $5.4 million. The applicant states that between December 2011 and January 2012 he was also involved in trafficking a marketable quantity of heroin. In oral evidence to the Tribunal the applicant also explained that he was introduced by a friend to some men who were members of the triads. He borrowed money from them to support his gambling. The applicant stated that he did not have any difficulties repaying what he borrowed but there was also considerable interest and he needed more time to repay it. Initially he was given more time but later he was told that if he assisted them with the importation from Thailand to Australia that they would forgive the applicant 20% interest for one month. The applicant said that he did not think initially that there was anything illegal and later on when he found out and wanted to withdraw from the venture, he was threatened.

Ratio Decidendi

Legal Principle Established

The applicant made a request for revocation of the cancellation decision on 25 May 2018. The Tribunal has considered the applicant’s comments, in addition to the evidence subsequently provided to the Tribunal by the applicant and the respondent. The Tribunal’s considerations are set out below with regard to the Direction 79.Primary considerations Protection of the Australian community As noted above, the applicant has been convicted of several offences in Australia. The two earlier driving offences resulted in disqualification, a fine and community service order. The offences that occurred in 2015 were significant, resulting in a lengthy custodial sentence. The nature and circumstances of the applicant’s offences are set out in various submissions the applicant made to the delegate and the Tribunal, as well as court documents. In his revocation request dated 25 May 2018 the applicant states that he began to gamble and acquired a significant debt. The pressure of repaying the debt led him to ‘inadvertently’ become involved in a heroin importation group. The applicant states that he was lent money by a ‘gangster’, who asked the applicant to assist him with importation of goods in exchange for reducing interest on his debt. The applicant claims he was assured that the work involved was legal. Upon realising that the importation was not legal, the applicant stated that he did not want to take further steps relating to the importation but he was put under duress and threats were made on his life and the lives of his mother and wife. In his Statement of Facts, Issues and Contentions (SFIC) dated 21 March 2019 the applicant states that between April and June 2012 he was involved in the unlawful importation of a commercial quantity of heroin, the total pure weight of which was close to 14,000 grams and with the wholesale value exceeding $5.4 million. The applicant states that between December 2011 and January 2012 he was also involved in trafficking a marketable quantity of heroin. In oral evidence to the Tribunal the applicant also explained that he was introduced by a friend to some men who were members of the triads. He borrowed money from them to support his gambling. The applicant stated that he did not have any difficulties repaying what he borrowed but there was also considerable interest and he needed more time to repay it. Initially he was given more time but later he was told that if he assisted them with the importation from Thailand to Australia that they would forgive the applicant 20% interest for one month. The applicant said that he did not think initially that there was anything illegal and later on when he found out and wanted to withdraw from the venture, he was threatened. The nature of the conduct and the circumstances of the offences are described in the sentencing remarks of Judge Jeffreys in the District Court of NSW. Below is the summary relating to the applicant’s conduct. The applicant was one of five people who were prosecuted in relation to the importation of drugs. He had numerous telephone conversations with people in Thailand, Singapore and Malaysia regarding the arrangement of a shipping container and its import into Australia. The applicant was arrested on 7 June 2012 and various drugs were located during the search of his car. The applicant stated in his interview with the AFP that he was a middle man between persons overseas and persons within Australia, that he would receive messages and forward them to persons he did not know. Jeffrey J stated that he could not be satisfied beyond reasonable doubt that the applicant had contact with people in Australia or that his role was any greater than organizing the packaging of the container in Thailand, and collecting the bill of lading.