1801211 (Migration)

[2018] AATA 2784

1801211 (Migration) [2018] AATA 2784 (6 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801211

MEMBER:Kira Raif

DATE:6 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

Statement made on 06 July 2018 at 5:19pm

CATCHWORDS
Migration – Cancellation – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional) – Risk to the health safety and good order of the Australian community – Criminal conduct –Issued with an Apprehended Violence order – Parties have no contact  – Charges have been dismissed  –Decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 16 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was granted the Partner visa in Subclass 309 in August 2016. On 22 December 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s.116(1)(e) of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision

3. The applicant appeared before the Tribunal on 5 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

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)(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.

5. 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].

6. 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.

7. There is no definition of ‘risk’ in the Act or Regulations and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001). The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk (Gong v Minister for Immigration [2016] FCCA 561 at [41] (Gong)). 

8. As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

   Does the ground for cancellation exist?

9. The applicant provided the Tribunal with a copy of the primary decision record. It indicates that the NSW Police informed the Department that the applicant had been charged with two offences: attempt to stalk / intimidate intend fear of harm and stalk / intimidate intend fear of harm. The alleged victim is [Ms A] with whom the applicant had been in a relationship since 2011.

10. On 8 June 2018 the applicant provided to the Tribunal the Advice of Court Result showing that the two charges had been withdrawn / dismissed. On the basis of that evidence, the Tribunal finds that the past charges which formed the basis of the delegate’s decision do not establish the ground for cancellation.

11. However, the primary decision record also indicates that the applicant has been issued with an AVO to protect his partner. The applicant explained to the Tribunal that the AVO was put in place when the charges were brought and even though the charges had been dismissed, the court thought it appropriate to leave the AVO in place. In his post-hearing submission, the applicant claims that it is standard procedure for the police to issue an AVO in case of any domestic argument. The applicant told the Tribunal that prior to the relationship breakdown, it was an abusive relationship. The sponsor ‘did bad things’ to him. The applicant said there was no physical violence but verbal abuse. The sponsor accused him of making threatening phone calls but that was not true. The AVO was brought by the police when the charges were laid and the applicant said that he signed the AVO without contesting the evidence. The applicant said the initial AVO was made around December 2017 and the final one was granted in June 2018 for a period of one year. The applicant subsequently provided to the Tribunal the NSW Police Fact Sheet.

12. The applicant told the Tribunal that it has been seven months since the AVO has been put in place and they had no contact since that time. There had been no complaints against him. The applicant claims he follows the law and respects the law.

13. The Tribunal has considered the circumstances that led to the cancellation of the visa. The Tribunal acknowledges that an AVO has been issued in relation to the applicant and is in place. In many circumstances, the Tribunal would consider that the existence of an AVO may establish at least the possibility of the risk to the person protected by the AVO. However, the Tribunal has formed the view that such risk does not exist in the present case. This is because the impetus for the AVO was the laying of the charges and there is no suggestion that an AVO would have been issued if the charges were not laid. However, the charges have since been dismissed, which may diminish the basis for the issuance of the AVO. The Tribunal also acknowledges the applicant’s evidence that the conduct that led to the charges and the AVO related to the telephone communication between him and his partner and the parties have not had any contact since the AVO was issued. They live in different states and have had no contact with each other for the past seven months. There is no suggestion that they intend to reunite or resume contact.

14. Considering the circumstances as a whole, the Tribunal is not 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. The Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 (Spouse (Provisional)) visa.

    Kira Raif
    Senior Member