Malith (Migration)

[2021] AATA 4199

Malith (Migration) [2021] AATA 4199 (27 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel Bol Malith

CASE NUMBER:  2015396

HOME AFFAIRS REFERENCE(S):          BCC2019/4289620

MEMBER:Kira Raif

DATE:27 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 27 October 2021 at 1:51pm

CATCHWORDS
MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to community – criminal charges, bail and immigration detention – application for review made out of time – primary decision defective, so jurisdiction to consider application exists – charge relied on withdrawn and plea of guilty and fine for one lesser charge – discretion to cancel visa – participation in rehabilitation courses and changed circumstances – no history of offending or pending charges – hardship to partner, children and other family members – best interests of children – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e), (3)
Migration Regulations 1994 (Cth),

CASES
Gong v MIBP [2016] FCCA 561
Parata v Minister for Home Affairs [2020] FCCA 1582

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 25 September 2019 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).

2. The applicant is a national of New Zealand, born in September 1989. He was granted the Special Category visa in March 2019. In September 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there may be grounds for cancelling his visa under s. 116 of the Act. The applicant provided his response to the NOICC and the visa was cancelled. The applicant seeks review of the delegate’s decision.

3. The application for review appears to have been lodged outside of the prescribed time limit. However, the Tribunal has formed the view that the primary decision is defective for the reasons set out in Parata v Minister for Home Affairs [2020] FCCA 1582. As such, the Tribunal finds that it has jurisdiction to consider the application for review.

4. The applicant appeared before the Tribunal on 27 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The applicant was represented in relation to the review. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. 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). 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.

6. 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].

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the Department received advice from the WA Police that the applicant was charged with 2 counts of Possession of Prohibited Drugs with Intent to Sell or Supply (cocaine) under s. 6(1)(a) of the Misuse of Drugs Act 1981 for the possession of 970g of cocaine.

8. The primary decision record sets out the statement of material facts. It indicates that  in August 2019 the police attended a residence and located 970g of cocaine. The police determined the applicant had taken the package to the property three weeks earlier. On the same day the police attended another residence and located about 12.7g of cocaine. The applicant was arrested at that residence and charged and the initial application for bail was refused. Information before the Tribunal indicates that the applicant was subsequently granted bail and was taken into immigration detention.

9. Having regard to the charges, the delegate formed the view that the applicant’s presence in Australia may be a risk to others. The applicant was issued with the NOICC in September 2019. In his response, the applicant stated that he intended to defend the charges and that he should be given the benefit of the doubt until his case is heard.

10. The applicant provided evidence to the Tribunal regarding the above matters. The applicant advised the Tribunal that all charges had been dropped and he pleaded guilty to a single charge of possession of prohibited drug. The applicant provided to the Tribunal a copy of the indictment and evidence that the charge of possession of prohibited drug with intent to supply has been withdrawn. The applicant presented to the Tribunal the sentencing transcript showing that he was fined for the remaining offence. On 25 October 2021 the applicant provided  further evidence and a submission to the Tribunal.

11. The applicant submits that the ground for cancellation does not arise as there is no probative material that he is a risk to the health, safety or good order of the Australian community. The applicant refers to the 2019 drug trafficking charges that led to the cancellation of the visa. He states that following the cancellation of his visa, in 2020 he was indicted on the drug trafficking charges which were discontinued in August 2020. In May 2021 he pleaded guilty to the offence of possession of cocaine and was fined $1200.

12. The applicant states that his circumstances had changed from the time the delegate formed the view that there were grounds for cancelling the visa. The applicant notes that he had been convicted of possession of 10.3 g of cocaine and the charge of intent to sell has been discontinued and there are no pending charges before the court. The applicant submits that there is no logical or probative basis to conclude that he is a risk on the basis that he would relapse into drug use or harm others under the influence of drugs.

13. The applicant states there is a very low likelihood of him relapsing into drug use. The applicant notes that during his detention there was forced abstention from cocaine and had also participated in rehabilitation courses, having attended 12 NA meetings and another course (the applicant provided to the Tribunal certificates confirming his participation in these courses). The applicant submits that he had a significant period to reflect on his actions and consequences if he was to relapse. The applicant submits there is no basis to find that he would engage in harmful behaviour and there is nothing to indicate that he had engaged in aggressive, criminal or anti-social conduct in the past while under the influence of drugs and there is no likelihood he would harm others. The applicant states that his offending was at a low level and there is a very low likelihood of him relapsing into drug use. The applicant contends that the ground for cancellation does not exist.

14. In oral evidence, the applicant also stated that due to his circumstances, he started using drugs and made a ‘silly mistake’ which caused problems to him and his family. The applicant states that he has completed programs while in custody and feels that he has addressed the problem and will no longer use drugs. The applicant states that a friend in the community was able to get drugs for him and that person is now in custody. He did not know anyone else to get the drugs from and it would be difficult for him to get the drugs from another person in the future. The applicant states that the situation has warned him, he would not put his visa and his family on the line.

15. The applicant claims that if he is released, he will continue with the NA program and will get a ‘sponsor’ to help him get through any difficulties. The applicant states that he has made inquiries about NA branches available locally but has not made any contact or arrangements yet. He does not believe there are rehabilitation programs available in the immigration detention centre.

16. The Tribunal has considered the applicant’s evidence. The applicant concedes that he has been convicted of an offence of drug possession and received a fine. His evidence is that he became a drug user due to the hardship he had experienced. While the Tribunal acknowledges the applicant’s evidence that the offending was at the lower scale, the Tribunal is of the view that any drug-related offending is serious, particularly as there is a real possibility that a person who is under the influence of drugs may engage in criminal or anti-social conduct. The applicant refers to his old drug habit, stating that in 2018 he was affected by the breakdown of his marriage and the loss of his job, and states that he will no longer use drugs, as he had time to appreciate the significance of his conduct and the repercussions, and he also engaged in a rehabilitation program. However, the Tribunal is of the view that the applicant would have appreciated the significance of his conduct (drug use) and the possible repercussions (which are far broader than the cancellation of the visa) before his visa was cancelled. The Tribunal does not accept that the applicant was not aware of the consequences of his behaviour. That did not seem to prevent the applicant from using drugs in the past and the Tribunal does not consider that the applicant’s appreciation of the consequences will be a sufficient deterrent in the future.

17. The applicant states that even if he relapses into drug use, there is no evidence that he would cause harm to others. The Tribunal acknowledges that there is no suggestion that the applicant had caused any physical harm to others in the past (and the emotional harm he is likely to have caused to his family by drug use is not within the scope of the present cancellation power) but the Tribunal does consider that reliance on drugs does heighten the risk of physically violent behaviour and also anti-social conduct (such as, for example stealing to financially support the drug habit). Thus, the Tribunal does consider that there is a heightened risk of harm to others if the applicant was to use drugs again.

18. The Tribunal places some weight on the applicant’s claim that he has not been using drugs and the fact that he had completed some rehabilitation programs while in detention. However, the Tribunal is also mindful that the applicant has been in detention since the charges were laid, first in criminal detention and subsequently in immigration detention. Thus, his access to drugs would have been more limited than if he remained in the community. The applicant’s interactions with others, who may negatively influence his behaviour, would also have been more limited while he remains in detention. That is, the applicant’s claimed resolve not to use drugs has not been tested, in the Tribunal’s view, by the applicant living freely in the community and having greater access to drugs and bad influences. In such circumstances, the Tribunal cannot accept the applicant’s claim that he will not use drugs. That has not been tested and the Tribunal is not prepared to accept the applicant’s assertions. Even if the applicant has genuinely committed not to use drugs, for the reasons he claims, the Tribunal would have more readily accepted that undertaking if it has been tested by the passage of time and the applicant’s residence in the community. This has not happened in this case.

19. The Tribunal is of the view that there remains a risk, even if a small risk, of the applicant relapsing into drug use in the future. If this is to occur, the Tribunal is of the view that there is a real likelihood of the applicant again engaging in criminal or anti-social conduct. For these reasons, the Tribunal finds that the applicant’s presence in Australia may be a risk to the community or the safety of others. Even if such a risk is not a significant one, the Tribunal is of the view that it exists. Thus, the Tribunal finds that the ground for cancellation in s.116(1)(e) exists.

20. 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

21. 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’.

    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

22. The applicant states in his response to the NOICC that he came to Australia with his family to ‘chase the Australian dream’. The applicant states that his immediate family, including partner and children, reside in Australia. In his submission to the Tribunal the applicant confirms that he came to Australia to settle and live here permanently. He told the Tribunal that most of his family has moved to Australia and he came to this country for better opportunities for himself and his children. The majority of his friends and family are in Australia, including his immediate family. The applicant submits that this constitutes a compelling need for him to stay in Australia. The Tribunal accepts that the applicant is fulfilling the purpose of his stay in Australia. The Tribunal is also of the view that the presence of the applicant’s two minor children in Australia may constitute a compelling need for him to remain in Australia.

    The extent of compliance with visa conditions

23. There is no evidence of any non-compliance with visa conditions.

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

24. The applicant states that his partner struggles to raise two children on her own and he wants the children to grow up with a father. The applicant states that before his detention, he had a close relationship with his children and did everything that a father would do. The applicant states that he moved out from the family home about six months before he was detained and he lived in a different state but he still had contact with his children and that evidence was confirmed by the applicant’s partner. The applicant states that if released from detention, he would live with his partner and children.

25. The applicant states that his partner struggles financially without his support and if he is released, he would find a job and provide the financial support to his family. While he is in detention, his partner receives support from her mother, who has moved from New Zealand but it is a temporary arrangement. The applicant’s partner also referred to the financial and physical support she needs to receive from the applicant and the hardship that would be caused if the family were required to relocate back to New Zealand. The Tribunal accepts that the applicant would provide  financial support to his children, although in the absence of financial record, the Tribunal does not accept that  the applicant’s partner experiences financial hardship without the financial support provided by the applicant.

26. In his written submission to the Tribunal the applicant states that his immediate family, including his partner and children, mother, siblings and nieces and nephews all reside in Australia. The applicant states that there would be significant emotional hardship to his family in Australia if his visa is cancelled as it may lead to permanent separation. The applicant presented statements from his family members, including his mother. The Tribunal does not accept that the cancellation of the visa would lead to the permanent separation of the applicant from his family case, as the applicant may be eligible to seek other Australian visas in the future, even if he may be subject to an exclusion period in relation to some visas, and character test requirements. It is possible that his family may be able to travel to New Zealand or wherever the applicant would choose to live. Nevertheless, the Tribunal accepts that if the applicant’s visa is cancelled and if he is required to depart Australia as a result, it would lead to separation between the applicant and his family in Australia, including his children, at least in the short term. The Tribunal accepts that there can be no certainty that the applicant would be granted another visa in the future and that there is a possibility that the applicant’s children may have to relocate to New Zealand  to live with the applicant. The Tribunal also acknowledges the statement from the applicant’s mother concerning the hardship that the family would suffer. The Tribunal accepts that the cancellation of the visa may cause considerable hardship to the applicant and his family.

    Circumstances in which ground of cancellation arose.

27. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia may be a risk to others. The applicant states that the conviction and detention has been a ‘wake up call’ for him and he has learned his lesson. He claims he would never use drugs again as the price to pay is too high.

28. The Tribunal does not consider that the ground for cancellation does not arise because of circumstances beyond his control. The applicant refers to his addiction, which was caused, he claims, by the relationship breakdown and loss of employment.

    Past and present behaviour of the visa holder towards the department

29. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

30. There are no persons whose visas would be subject to consequential cancellation.

    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

31. If the applicant’s visa is cancelled, and unless the applicant is granted another visa, he would become an unlawful non-citizen and that may result in in his detention and removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation and, in particular, the applicant may be subject to PIC 4013 if he chose to make other visa applications in the future. An assessment would need to be made whether the applicant is a behaviour concern non-citizen, should he apply for another Subclass 444 visa in the future.

32. The applicant also claims that due to Covid, there would be delays in his removal from Australia, which may result in his lengthy detention.

    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

33. The applicant’s two minor children live in Australia. The applicant refers to his close relationship with his son and states that if his visa is cancelled, his children would either remain in Australia without their father or have their lives uprooted to move to New Zealand. The applicant’s partner, who provided a statement and oral evidence to the Tribunal, refers to the financial hardship that her family would experience in the applicant’s absence and the fact that her children would have better opportunities in Australia. The applicant told the Tribunal that he hopes his partner would follow him to New Zealand but he cannot force them to and his partner’s evidence is that her preference is to remain in Australia, having migrated to this country only a few years ago, and not to uproot the children again.

1. The Tribunal accepts that the applicant’s partner prefers to remain in Australia with the children and there is thus no guarantee that the children would return to New Zealand, should the applicant be required to leave Australia. That is, the cancellation of the visa may result in the applicant being separated from his children. Given their ages, the Tribunal is of the view that it is in the best interests of the children to have the presence and support of both parents, although the Tribunal is also of the view that  if the applicant was to return to drug use in the future, it may not be in the best interests of his children to witness such behaviour.  

2. The provided a statement from his sister who outlines the applicant’s relationship with her children and the parental role he plays in relation to his niece and nephew. The applicant states that if his visa is cancelled, he would be permanently separated from his niece and nephew (as noted above, the Tribunal does not consider this to be the case). The applicant submits that it is in the best interests of his niece and nephew that his visa not be cancelled. The Tribunal accepts that if the applicant is required to leave Australia as a result of his visa being cancelled, he may be unable to retain the relationship that he has with these children. The Tribunal is prepared to accept that the applicant has played a close role in relation to his sister’s children however, the Tribunal notes the evidence of the applicant’s partner that she is unwilling to relocate to Perth and that she and the applicant are likely to live in Queensland. Thus, the applicant would not live in close physical proximity with his sister, niece and nephew and the nature of their interactions would be affected by their residential arrangements. In the Tribunal’s view, if the applicant is to live in a different state as his sister and her children, the nature of the support he provides to them would not be significantly different to the support he may provide if he were to live in New Zealand. The Tribunal accepts that there would be fewer opportunities for personal meetings if the applicant was to live in New Zealand, but generally the Tribunal is of the view that whatever support the applicant would provide to his niece and nephew while living in a different state would not be substantially different to the support he may provide while living in a different country. Thus, the Tribunal does not consider that the best interests of the sister’s children would be adversely affected by the cancellation of the applicant’s visa.

3. The applicant does not claim, and there is no evidence, that he would be subjected to any form of harm or persecution upon return to New Zealand. The Tribunal does not consider that Australia’s non-refoulement obligations arise in this case.

   If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

4. The present visa is not a permanent visa but permits the applicant to remain in Australia permanently if he does not depart Australia. the Tribunal accepts that het applicant has strong family ties in Australia.

5. The applicant has not raised other matters

6. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that  the applicant’s presence in Australia may be a risk to others, particularly if the applicant engages in drug-use in the future. The Tribunal has found that there are grounds for cancelling the visa. However, in the particular circumstances of this case, the Tribunal has decided to place greater weight on other factors. The Tribunal places significant weight on the best interests of the applicant’s children (which is a primary consideration) and their presence in Australia. The Tribunal has formed the view that if the applicant was required to leave Australia as a result of the cancellation of his visa, there is a possibility that he would be separated from his children unless the children are uprooted and return to New Zealand. The applicant’s immediate family live in Australia and he refers to strong ties with his niece and nephew for whom, it is claimed, the applicant has accepted a parental role. The Tribunal has also accepted the applicant has strong family ties in Australia and limited ties in New Zealand and that considerable hardship would be caused to the applicant and his family if the visa is cancelled as it may lead to the applicant being separated from his family.

7. The Tribunal also places weight on the fact that  the offence that the applicant has been convicted of is a single offence. The more significant charge, which formed part of the reason for cancelling the applicant’s visa, has been withdrawn. The offending appears to be at the lower scale, as is evident from the nature of the sentence. There is no proven history of offending and the applicant claims he will not engage in drug use in the future. While the Tribunal does not fully accept that undertaking because the applicant’s resolve has not been tested by his residence in the community, the Tribunal is mindful that should the applicant again commit any offences or engage in any conduct that is either criminal or anti-social, his visa may be cancelled. The Tribunal considers that the present proceedings would emphasise for the applicant the significant consequences of his conduct which may act as a deterrent for him in the future.

8. Given the presence of the applicant’s family in Australia, and in particular, his two minor children, the Tribunal has decided that the visa should not be cancelled. Should the applicant engage in any conduct in the future that has the potential to harm others, the applicant is aware that the consequences may be different.

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

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kira Raif
    Senior Member