Tsang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2020] AATA 4319

Tsang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4319 (29 October 2020)

Division:GENERAL DIVISION

File Number:          2020/5013

Re:Man Chun Tsang

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:29 October 2020

Place:Sydney

The decision under review is affirmed.

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

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

MIGRATION – Migration Act 1958 – mandatory visa cancellation – section 501(3A) – subclass 820 visa – Applicant failed character test – drug supply and related offences – sentenced to a term of imprisonment for 12 months or more – whether there is another reason why the cancellation should be revoked – Hong Kong – non-refoulement – remorse – rehabilitation – application of Direction No. 79 – weighing of primary and other considerations – safety of the Australian community – expectations of the Australian community – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
YKZZ and Minister for Home Affairs (Migration) [2019] AATA
ZJKT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4125 (15 October 2020)

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

29 October 2020

INTRODUCTION

  1. The applicant is a 35 year old citizen of Hong Kong.[1]  He first arrived in Australia in 2004 as an 18 year old. He entered the country on a student visa, completing various qualifications, including a Bachelor of Commerce degree and a postgraduate degree in Finance. He has spent most of his adult life in Australia.

    [1] G1, 2.

  2. On 5 November 2016, the applicant married his present wife, Ms Siying Liu, a 21 year old permanent resident of Australia. On 26 April 2018, he was granted a Partner (Temporary) (Class UK) subclass 820 visa (‘visa’), having previously held various temporary student visas.

  3. On 19 December 2019, he pleaded guilty to an offence of supply prohibited drugs on an ongoing basis. He was sentenced to a term of imprisonment of 3 years and 4 months. The sentence commenced on 19 September 2018, and expires on 18 January 2022, with a non-parole period of 2 years. On 18 September 2020, he became eligible for parole.

  4. On 20 January 2020, the applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above (‘the original decision’). He was invited to make representations about revocation of the original…

Continue reading Tsang and Minister for Immigration, Citizenship, Migrant Ser...

Sign in free to access the full text

Details
AGLC
Tsang and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4319
Case
[2020] AATA 4319
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr. Tsang for the revocation of a mandatory visa cancellation made under section 501(3A) of the *Migration Act 1958* (Cth). The applicant, who held a subclass 820 visa, had failed the character test due to drug supply and related offences, for which he was sentenced to a term of imprisonment of 12 months or more. The Administrative Appeals Tribunal was required to determine whether there was another reason why the cancellation should be revoked, considering factors such as remorse, rehabilitation, the non-refoulement obligations owed to Hong Kong, and the application of Direction No. 79.

The Tribunal was tasked with determining the legal issues surrounding the mandatory cancellation of Mr. Tsang's visa. This involved assessing whether any countervailing considerations were sufficient to outweigh the mandatory cancellation, particularly in light of the serious nature of the offending. The Tribunal had to apply the principles outlined in Direction No. 79, which categorised considerations into primary and other considerations, generally requiring primary considerations to be given greater weight. The Tribunal also had to consider the expectations of the Australian community regarding non-citizens who commit serious offences.

In its reasoning, the Tribunal applied the seven principles established for assessing character concerns, noting Australia's sovereign right to determine who remains in the country and the community's expectation that serious offenders will have their visas cancelled. The Tribunal found that while Mr. Tsang expressed remorse for his actions, the serious nature of drug supply offences weighed moderately in favour of non-revocation. The Tribunal also considered the expectations of the Australian community, referencing *FYBR v Minister for Home Affairs* which clarified that such expectations are deemed rather than empirically determined. The Tribunal concluded that the serious nature of the offending was a significant factor against revocation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, there is the question of remorse. I note that during the proceedings of 7 February 2020 relating to the confiscation order, the applicant denied his involvement in any ongoing supply. There was some discussion about his negotiated plea of guilty at the sentencing hearing. In the event, the applicant was successful in the confiscation proceedings and I do not think any adverse inference can be drawn as to his remorse for the principal offence. The judge found that he had remorse, and it is clear from the evidence given in the Tribunal proceedings that he was remorseful for his actions.[13][13] Transcript, 15 October 2020, p 96.CONCLUSION WITH RESPECT TO PC1 My conclusion with regard to PC1 is that, by reason of the serious nature of any drug supply offence involving cocaine, this consideration weighs in favour of non-revocation of the mandatory cancellation. In the particular circumstances of this case, I think it weighs moderately in favour of non-revocation. PRIMARY CONSIDERATION 2 (PC2): THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION There are no minor children, and this issue is not relevant. PRIMARY CONSIDERATION 3 (PC3) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY Paragraph 13.3(1) provides as follows: The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision makers should have due regard to the Government’s views in this respect. In FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’), a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. Charlesworth J stated, at [67]:To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”... it is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. .... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. Her Honour added, at [73]:[I]t must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

Ratio Decidendi

Legal Principle Established

Paragraph 6.3, under the heading ‘Principles’, sets out the seven basic principles forming part of that framework. The principles are:(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused (emphasis added).Taking the relevant considerations into account: paragraph 8 of Direction No. 79 The principles in paragraph 6.3 inform the manner in which the decision-maker must assess the considerations which are required to be taken into account in exercising the relevant discretion: paragraph 7(1). Part C of Direction No. 79 governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see paragraph 7(1)(b). There are a number of important rules governing the way in which considerations must be taken into account. These may be summarised as follows:(a)Considerations are divided into primary and other considerations which must be taken into account by decision makers: see paragraph 8(1);(b)Information and evidence from independent and authoritative sources should be given appropriate weight: see paragraph 8(2);(c)Both primary and other considerations may weigh in favour of, or against…whether or not to revoke a mandatory cancellation…: see paragraph 8(3);(d)Primary considerations should generally be given greater weight than the other considerations: see paragraph 8(4); and(e)One or more of the primary considerations may outweigh other primary considerations: see paragraph 8(5).