Mo (Migration)

[2021] AATA 1212

Mo (Migration) [2021] AATA 1212 (19 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wai Kwan Mo

CASE NUMBER:  2101644

HOME AFFAIRS REFERENCE(S):          BCC20202685168

MEMBER:Kira Raif

DATE:19 April 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 19 April 2021 at 2:05pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) – Subclass 010 (Bridging A) – criminal convictions – lawyer’s advice to plead guilty – community corrections orders and supervision – discretion to cancel visa – circumstances of offending – application for partner visa in progress – applicant would be able to remain in Australia until that application is determined – hardship and consequences if cancellation affirmed – mental health – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g), (3)
Migration Regulations 1994 (Cth), r 2.43(1)(oa)

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 25 January 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 applicant is a national of China, born in October 1969. She was granted a Bridging A visa on 15 November 2017. On 9 December 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that there are grounds for cancelling the applicant’s visa under s. 116 of the Act. The applicant provided her response to the NOICC and her visa was cancelled on 25 January 2021. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 19 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

4. 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.

5. 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. It states:

   Reg 2.43 Grounds for cancellation of visa (Act, s116)

   (1)   For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:  

   (oa)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))

   Does the ground for cancellation exist?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant had been granted the Bridging A visa in November 2017. It is stated that in October 2020 the Department received information from the Australian Criminal Intelligence Commission indicating that  on 23 September 2020 the applicant had been convicted of the following offences at Parramatta Local Court:

Supply prohibited drug > small and <= indictable quantity

Community corrections order 3 years

(23/9/20 – 22/9/23)

Supervision 3 years 

(23/9/20 – 22/9/23)

Abstention 3 years

(23/9/20 – 22/9/23)

Found on / entering / leaving drug premises – first offence

Community corrections order 3 years

(23/9/20 – 22/9/23)

Supervision 3 years 

(23/9/20 – 22/9/23)

Abstention 3 years

(23/9/20 – 22/9/23)

1. In oral evidence to the Tribunal the applicant told the Tribunal that she relied on the advice of her lawyer, who told her that if she pleaded guilty, she would not have a custodial sentence and her legal fees would be lower. the applicant’s partner also told the Tribunal that he disagrees with the finding of guilt. While the Tribunal acknowledges that evidence, the Tribunal also acknowledges that the applicant has been convicted of offences and there is no suggestion that the convictions had been overturned.

2. Having regard to that evidence, the Tribunal finds that the applicant has been convicted of offences in the state of NSW. The Tribunal finds that the applicant was a holder of a Bridging A visa, which is a temporary visa other than a Bridging Subclass 050 and Subclass 051 visa and a Special Category visa. The Tribunal finds that the applicant had been convicted of offences against the law of a state. The Tribunal finds that there are grounds for cancelling the visa under s. 116(1)(g) and r. 2.43(1)(oa).

3. 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

4. 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

5. In her response to the NOICC the applicant and her partner explain that they met in 2014 and married in 2016 and the applicant made the application for a Partner visa to enable them to be together in Australia. In oral evidence the applicant also refers to her relationship with her husband. The Tribunal accepts that until that application is finally determined, the applicant is fulfilling the purpose of the visa. However, the Tribunal is also mindful that the cancellation of the Bridging visa would not in any way affect the processing of the Partner visa application. That application will be able to remain in Australia to await the outcome of her application for the Partner visa and that application will be assessed against the relevant criteria irrespective of the outcome of the present review. Similarly, if the applicant has a compelling need to remain in Australia due to the presence of her husband here, she can fulfil that need while she awaits the outcome of the Partner visa application.

   The extent of compliance with visa conditions

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

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

7. The bridging visa was granted to enable the applicant to await the outcome of her application for the permanent visa. The applicant and her partner state in their response to the NOICC that while the offending was serious, the cancellation of the visa would have drastic and serious consequences as the applicant may be removed and barred from returning to Australia. In oral evidence, the applicant also states that the cancellation caused her to be in low mood and she does not want to be separated from her husband. The Tribunal does not accept the applicant’s evidence. As noted above the bridging visa cancellation does not in any way affect the processing of the Partner visa, which will continue, with that decision being made on its own merits. There is no suggestion that the applicant would be removed from Australia prior to the decision being made on her Partner visa.

8. The applicant’s partner, in his submission to the delegate, refers to the financial hardship that would be caused by the cancellation of the visa. However, his submissions appear to be predicated on the fact that the applicant would be required to leave Australia if the visa is cancelled. That is not the case and for that reason, the Tribunal does not accept that financial hardship would be caused as a result of the cancellation.

9. The applicant told the Tribunal that if her visa is cancelled, she may have no visa and would have to return to Hong Kong and that would cause hardship. As noted above, the Tribunal does not consider that  the applicant will be required to leave Australia before her Partner visa application has been finally determined.

10. The applicant’s partner submits that if the visa is cancelled, the applicant may not be able to get other visas and she may be removed from Australia. The Tribunal is mindful that the applicant is eligible to apply for a Bridging E visa to await the outcome of her substantive vias application but the Tribunal accepts that  there can be no guarantee that this visa will be granted and if the applicant is not granted another visa, she may become an unlawful non-citizen, subject to detention. However, the Tribunal also notes that the applicant has remained in Australia, and outside of detention, since the cancellation of her visa in January 2021. The applicant was unsure whether she had been granted another visa but undertook  to make contact with the Department. Overall, the Tribunal has formed the view that there is no prospect of the applicant being removed from Australia before her Partner visa application is finally determined. The Tribunal is not satisfied that significant hardship would be caused by the cancellation.

    Circumstances in which ground of cancellation arose

11. The circumstances in which the ground for cancellation arises is because the applicant has been charged with offences in the state of NSW and has held a temporary visa. In her response to the NOICC the applicant suggests that a warning would be an appropriate outcome as she believes the offences present an opportunity for her to make serious changes in her life and prove to others that she can make changes in her life that  would benefit her and others.

12. The applicant submits that the circumstances that led to her offending are important. In her response to the NOICC the applicant refers to her relationship with her Australian husband whom she met in May 2014 and their love for each other. The applicant describes the financial difficulties and her decision to engage in the sex industry, which led her to use drugs and sometimes the sale of drugs to others, which she claims was not done for profit but to help others. The applicant has expressed her remorse for her actions and she told the Tribunal that she has not committed any other offences and is completing her community service.

13. The Tribunal does not consider that the ground for cancellation arises because of circumstances beyond the applicant’s control. The Tribunal considers that drug-related offences are serious and has the potential of causing significant harm to others.

    Past and present behaviour of the visa holder towards the department

14. Nothing adverse is known about the applicant’s past and present behaviour towards the Department. The applicant states in her evidence to the delegate that she had always complied with all requests.

    Whether there would be consequential cancellations under s.140

15. There are no persons who would be affected by consequential cancellation.

    Whether there are mandatory legal consequences

16. If the applicant’s visa is cancelled, unless she is granted another visa, the applicant would be an unlawful non-citizen and may be detained and removed from Australia. There is no suggestion that she would be detained indefinitely and there is no suggestion that the applicant had been detained since her visa was cancelled in January 2021, although the applicant was uncertain whether she had been granted another visa. The Tribunal does not consider there is a real likelihood of the applicant being removed from Australia before her substantive visa application is finally determined.

17. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. The applicant may be subject to an exclusion period if she is to make an application for a visa offshore and very limited types of visas she may be able to apply onshore.

18. The applicant’s spouse submits that the applicant is likely to be refused visas in the future and that would be a harsh consequence. The Tribunal is of the view, however, that any future assessment of the applicant’s character which may lead to visa refusal, would be the consequence of the convictions, not of the present cancellation. Nevertheless, the Tribunal acknowledges that the cancellation will result in an exclusion period for some visa applications in the future.

    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

19. The applicant told the Tribunal there are no children who would be affected by the cancellation of her visa.

20. In her submission to the delegate the applicant states that she left China for Hong Kong as she did not want to live under communism. She told the Tribunal that Hong Kong is in the state of chaos and she cannot return to that country. The Tribunal found the applicant’s claims vague and generalised and the applicant has not made specific claims that she would be subjected to any form of harm as a result of her political or other believes or her actions and her broad statements concerning her dislike of communism is unhelpful. The applicant also told the Tribunal that she has no job and nowhere to stay in Hong Kong and it would be hard for her. While that may be the case, the Tribunal does not consider that such matters give rise to Australia’s protection obligations.

21. Further, the Tribunal is mindful that in this case, the cancellation of the visa will not result in the applicant being removed, or having to depart, Australia. This is because she has an outstanding application for a substantive visa that has not been finally determined. The applicant would be permitted to remain in Australia while that application is being considered. Thus, the Tribunal finds that the cancellation of the Bridging A visa will not be in breach of Australia’s non-refoulement obligations and will not result in the separation of a family unit.

    Any other relevant matters

22. The applicant told the Tribunal that she has depression and has visited doctors. She states that she has been living here with her husband for many years and cannot leave Australia. The Tribunal finds that evidence problematic. Firstly, as noted above, the applicant will not be required to leave Australia as a result of the cancellation of the Bridging A visa. She will remain in Australia to await the outcome of the Partner visa application. Secondly, the applicant has never been granted a permanent Australian visa and cannot assume that she would be allowed to remain in Australia, irrespective of the length of time she has already spent in this country, because that is her preference.

23. The applicant’s husband also refers to the DASS assessment completed by the applicant as part of the sentencing, stating that the applicant had been diagnosed with severe depression and anxiety and states that the cancellation of the visa and separation from him would exacerbate her condition. The Tribunal does not accept that evidence because the Tribunal does not accept, for the reasons stated elsewhere, that the cancellation of the visa would result in the applicant being separated from her husband. The Tribunal also does not consider there is sufficient probative evidence, for example in the form of medical reports, to satisfy the Tribunal that the applicant’s mental state would be adversely affected if her Bridging A visa is cancelled.

24. The applicant’s spouse told the Tribunal that the applicant may not be granted another visa and for that reason they do not wish the cancellation to take place. The Tribunal accepts that there can be no guarantee that the applicant will be granted another visa, for example, a Bridging E visa, while awaiting the outcome of her Partner visa application, although the Tribunal is mindful that the applicant has not been detained since her visa has been cancelled.

25. The applicant and her husband submit that her offences are not serious enough to fail the character test and she has already paid the penalty through the criminal justice system. They claim that the cancellation of the visa would make it difficult for her to get another visa in the future. As noted elsewhere, the Tribunal accepts that  the cancellation of the visa will result in the exclusion period and that may cause hardship, should the applicant wish to make another visa application in the future. The Tribunal does not accept, however, that the cancellation of the visa would make it more difficult for the applicant to meet the requirements for the grant of another visa in the future (subject to an exclusion period). In the Tribunal’s view, that would be caused by the applicant’s conviction and not the cancellation of her Bridging visa.

26. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the applicant’s visa because she had been convicted of offences and held a temporary visa. The Tribunal has formed the view that some, albeit minimal, hardship would result from the cancellation of the bridging visa because the applicant would be permitted to remain in Australia to await the outcome of her Partner visa. The hardship that the applicant describes is based on the assumption that the applicant would be required to leave Australia and the Tribunal does not consider that will happen before her Partner visa application is finally determined. The Tribunal acknowledges that there can be no certainty that the applicant will be granted another Bridging visa, which may lead to the applicant being an unlawful non-citizen subject to detention and removal, but given the lack of any action in the past three months since the cancellation of the visa to detain the applicant,  the Tribunal does not consider there is a real likelihood of that  occurring. Neither does the Tribunal consider there is a real likelihood of the applicant being removed from Australia before her application for the Partner visa is finally determined. Nevertheless, the Tribunal accepts that  some hardship would be caused because the applicant would be subject to an exclusion period in the future, should she wish to make another visa application in the future. The Tribunal has given due weight to the mandatory legal consequences of the visa being cancelled. The Tribunal acknowledges that there are no other known breaches of the law and nothing adverse is known about the applicant’s conduct towards the Department.

27. However, the Tribunal has decided to place greater weight on the circumstances in which the ground for cancellation arose. The applicant had been convicted of serious offences. Drug offences, particularly offences involving the sale of drugs, affect not only the applicant but have the potential of seriously affecting the welfare of others and causing significant harm to others. The Tribunal does not consider the applicant’s explanation that she did not sell drugs for profit to be either persuasive or, even if true, justifying her conduct.

28. The Tribunal has formed the view that Australia’s international obligations would not be breached as a result of the cancellation. 

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

    DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

   Kira Raif
   Senior Member