Saint (Migration)

[2019] AATA 4141

Saint (Migration) [2019] AATA 4141 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gordon Yong Lone Saint

CASE NUMBER:  1911855

HOME AFFAIRS REFERENCE(S):           BCC2018/5429227

MEMBER:David McCulloch

DATE:13 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 September 2019 at 3:22pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 500 (Student) – criminal convictions – risk to community – remorseful – intends to study – lack of compelling reasons – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

CASES

Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 May 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Malaysia. The visa that has been cancelled was granted on 9 February 2018 valid until 14 October 2019.

3. The delegate wrote to the applicant on 14 January 2019 providing a Notice of an Intention to Consider Cancellation of the visa (NOICC) and requesting a response from the applicant. A response was provided by the applicant’s representative dated 12 February 2019.

4. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant may be, or would or might be, a risk to the health, safety or good order of the Australian community or segment 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.

5. The applicant appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant ceased to have representation at the time of the Tribunal hearing.

6. 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

7. 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.

   Does the ground for cancellation exist?

8. 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].

9. 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.

10. There is information before the Tribunal which suggests that the applicant 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. This information was put to the applicant in the hearing pursuant to the procedural requirements of s.359AA of the Act. This was information provided by the New South Wales Police Force on 5 August 2019 that the applicant had been convicted on 26 July 2019 in the Hornsby Local Court of offences of: ‘Supply prohibited drug> indictable &> commercial quantity’; ‘Goods in personal custody suspected being stolen (not m/v); and, ‘Publish etc false misleading material to obtain advantage’. The information indicates that the applicant was sentenced to 10 months imprisonment ending on 7 February 2020 but being eligible for parole after six months on 7 October 2019.

11. Information provided by the police in relation to the charges indicates that the conviction for publishing false material to obtain advantage related to an attempt to obtain a credit card from a bank using fraudulent identity information. That information indicated that the conviction for goods in personal custody suspected of being stolen relate to a mobile phone.

12. The Tribunal noted to the applicant in the hearing that this information was relevant because it suggests that the applicant is or may be, or would or might be, a risk to the health, safety and good order of the Australian community or a segment of the Australian community; or to the health or safety of an individual or individuals. The risk to the health and safety of the community or a segment of the community or individuals is demonstrated by the applicant having been convicted in relation to the supply of a prohibited drug which would create a risk to the health and safety of the persons to whom the drug was distributed. (In the hearing the applicant indicated that the drug was methamphetamine). The conviction of an offence relating to the fraudulent obtaining of a credit card with a false identity would demonstrate that the applicant is or might be a risk to the good order of the Australian community, being a risk to the proper administration or observance of the law and undermining of Australian values of honesty and respect for the law, as would the conviction of the applicant for stealing a mobile phone.

13. The fact of the applicant being given a 10-month sentence with a six-month non-parole period for the relevant charges indicates a not insignificant seriousness in relation to the offences highlighting the degree to which the applicant would or might be a risk in terms of s.116(e) of the Act.

14. The Tribunal noted to the applicant that the consequence of relying on this information could be to find that the ground for cancellation in s.116(1)(e) is readily made out.

15. In response, the applicant indicated that the offence in relation to drug supply had been downgraded to an offence of ‘deemed’ rather than actual supply. The applicant indicated that the offence in relation to misleading material to obtain advantage occurred because the applicant got involved with friends because of drugs who provided the false identity. The applicant indicated that the mobile phone was given to him by his bad friends and he did not know that it was stolen.

16. The applicant referred to his sentencing report indicating that this was relevant because he had been given a sentence of only 10 months rather than 12 months or longer. The applicant indicated that this was because the judge deliberately gave him a sentence of less than 12 months. The applicant suggested that a sentence of 12 months or longer would be a key trigger for the applicant to be removed from Australia.          

17. As put to the applicant in the hearing, a 12-month sentence is not in itself a relevant trigger in relation to the ground of cancellation being made out. The Tribunal must determine more broadly whether the applicant is a risk in terms of s.116(1)(e).

18. The applicant indicated that his inappropriate friends are not entirely responsible for the convictions and that he does bear some of the responsibility. He indicated that he is very remorseful. He no longer uses drugs. He would like to be given a second chance.

19. The Tribunal has taken into account the applicant’s various responses to this information. The Tribunal considers that the conviction of the applicant of the three offences outlined with a sentence of 10 months imprisonment with a non-parole period of six months readily demonstrates that the ground for cancellation in s.116(1)(e) is made out. Whilst the Tribunal accepts that the applicant is remorseful and has indicated an intention of not reoffending, the past criminal acts of the applicant create some risk that the applicant may be a risk to the community or individuals as outlined in s.116(1)(e). The standard in that section only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk.

20. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) 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

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’.

22. The applicant indicated in the hearing that he arrived in Australia in 2015 and has studied English. He has successfully completed English levels 1–4. The applicant indicated that his main purpose in coming to Australia has been to study.

23. The Tribunal explored with the applicant the circumstances surrounding the ground for cancellation being made out. The Tribunal asked the applicant as to extenuating circumstances. At this point the applicant referred to making bad friends but then acknowledged that his friends are not entirely responsible and that he himself has to take a degree of responsibility for the convictions. As indicated, the applicant is remorseful and asks to be given a second chance. The applicant has indicated that the less than 12 months prison sentence given by the judge was done so with the judge’s knowledge that a 12-month sentence or longer would have provided grounds for the applicant to be removed from Australia. As indicated to the applicant, this is not a relevant trigger in relation to the ground for cancellation being made out.

24. Whilst the Tribunal appreciates the applicant’s honesty in taking responsibility for the convictions and that he is remorseful, that taking of responsibility would suggest that there are not major extenuating circumstances leading to the convictions and sentence, albeit that the Tribunal accepts that the applicant formed relationships with a problematic group of friends who were involved in drugs.

25. The Tribunal explored with the applicant the hardship that he will face if the visa remains cancelled and/or compelling reasons to remain in Australia. The applicant indicated that he wishes to continue his English studies. Further studying of English will improve his circumstances. The applicant indicated that Australia is a beautiful country and he wishes to continue to be able to stay. The applicant indicated that following the completion of his studies he would like to pursue other visa pathways to stay in Australia permanently. His inability to continue studies and to explore other future visa options to stay would be a hardship.

26. The Tribunal accepts some degree of hardship to the applicant if the visa remains cancelled in terms of his inability to continue his studies and to pursue other options to stay in Australia more permanently. If the visa remains cancelled the applicant will be barred from applying for a significant range of other visas onshore.

27. If the Tribunal determines that the applicant’s visa is to remain cancelled, there may be impediments to the applicant obtaining a bridging visa to make his status lawful until he makes arrangements to leave the country. A bridging visa could well be denied on the grounds that the applicant might engage in criminal conduct. This could involve the applicant being detained in immigration detention after his release from criminal detention. The Tribunal accepts that this potential for immigration detention would be a hardship for the applicant, although this is mitigated in that it would only occur for the limited period in which it takes for arrangements to be made for the applicant to leave the country.

28. The applicant indicated no children in Australia whose interests are affected by the cancellation. The applicant indicated that he does not fear persecution or significant harm on return to Malaysia. Thus Australia’s non-refoulement obligations are not enlivened in this matter.

29. In summary, the applicant has been convicted and sentenced to a meaningful jail term in relation to offences of not insignificant seriousness. The fact of the applicant having engaged in actions leading to the convictions suggests some continued risk to individuals and the community and its good order from the applicant. As indicated in the discussion as to whether the ground for cancellation is made out, the Tribunal is not satisfied that the risk of the applicant reoffending falls below the risk that the applicant may or might reoffend. This is notwithstanding the applicant’s indications that he is remorseful and that he would not reoffend. Further, the fact of the applicant having engaged in not insignificant criminal acts argues in favour of his privilege in being able to remain in Australia on a student visa being forfeited. The Tribunal is not satisfied that there are factors which are overly extenuating which justify the actions leading to the various convictions and sentence and the ground of cancellation being made out.

30. These matters are significantly adverse to the applicant in the exercise of the Tribunal’s discretion.

31. The Tribunal accepts that there will be various hardships to the applicant if the visa remains cancelled. These hardships will include the inability of the applicant to continue studies in Australia and restrictions on the applicant’s ability to achieve other visa pathways to remain in Australia. The Tribunal accepts as a hardship that the applicant will be denied the opportunity to make what he might perceive as a better life for himself in Australia. The Tribunal accepts that the applicant may feel it compelling to his interests that he be allowed to pursue his study and future wish to stay in Australia.

32. The Tribunal balances relevant discretionary issues. The Tribunal is not satisfied that the matters that weigh against cancelling the visa, most particularly the hardship that he will face if the visa remains cancelled, outweigh matters adverse to the applicant, namely the fact of and circumstances surrounding the convictions and sentence.

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

    DECISION

34. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    David McCulloch
    Member