1805274 (Migration)

[2019] AATA 1360

1805274 (Migration) [2019] AATA 1360 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805274

MEMBER:John Cipolla

DATE:26 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 March 2019 at 4:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – serious charges involving violence and threats of violence – review adjourned pending criminal proceedings – pleaded guilty to intentionally causing injury and unlawful imprisonment – Community Corrections Order – findings in psychological report – strictly situationally motivated and reflective of the prevailing circumstances – isolated incident and not a pattern of behaviour – compliance with bail conditions – decision under review set aside

LEGISLATION
Migration Act 1958, s 116

CASES
Gong v Minister for Immigration [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR 80

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 22 February 2018 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 delegate cancelled the visa under s.116(1)(e) on the basis that the delegate determined that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The evidence before the Tribunal indicates that the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his Subclass 500 Student visa which is dated 4 January 2018. The identified ground for cancellation of the visa is section 116(1)(e) of the Migration Act namely that the delegate determined that the presence of the holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The NOICC notes that the applicant had been charged with a number of criminal offences. The NOICC notes that [in] December 2016 the applicant was charged with intentionally cause injury; recklessly cause injury; assault by kicking; aggravated burglary-person present; aggravated burglary-offensive weapon; enter building to commit offence-assault; false imprisonment; make threats to kill; theft; handle/receive/retention stolen goods; blackmail; use a carriage service to menace. The NOICC noted that the applicant was scheduled to appear at the [City 1] Magistrates Court [in] July 2018 for a committal hearing in relation to the pending charges. The delegate determined that based on the evidence that the applicant’s presence in Australia is or may be a risk to the safety of an individual or individuals in the Australian community. The delegate invited the applicant to comment on whether he believed the grounds for cancellation of his visa existed and whether the visa should be cancelled.

4. The applicant provided a very comprehensive response to the NOICC dated 18 January 2018.

5. Part of the response to the NOICC included a letter to the Department from [Law Firm 1] dated 18 January 2018.  The letter submits that the applicant does not pose a risk to the Australian community or a segment of the Australian community, or any individual or individuals. The submission notes that:

   “whilst it is true that Victoria police has concluded that there is a proper basis to bring the charges against [the applicant] , the circumstance of this case, it is submitted, do not form a proper basis for a conclusion that [the applicant] is or may be a risk to the safety of an individual or individuals in the Australian community. In support of the submission, 3 matters will be relied upon: first, the Victoria police brief of evidence in this case discloses an exchange between [the applicant] and the complainant that is confined to its circumstances, and which justifies a view that a lawful excuse is available to him for any conduct found proven in the court. Secondly, [the applicant] is pleading not guilty to the charges, and he has not yet had the opportunity to test the credibility and reliability of the complainant’s evidence. Thirdly, the fact that he has been granted bail by police on conditions that he has observed to the letter indicate that any risk that [the applicant] poses (which is not conceded) are under management.”

6. The response makes reference to the circumstances of the alleged offending and notes that:

   [The applicant] has been charged with offences alleged to have been committed against [Mr A]. [Mr A] has given a statement to police, dated 15 December 2016, that he was friendly with [the applicant]’s then girlfriend, [Ms B]. His evidence, should he testify in court, will be that around midnight on 2 December 2016, he met up socially with [Ms B] and she slept over at his home. Upon his account to police, they had sexual relations.  [Information deleted]. He told police that, on 6 December 2016, [Ms B] contacted him and arranged to meet him at his apartment. She asked him to apologise to her boyfriend, and he agreed to do so. At about 7pm, the doorbell buzzer rang, and [Ms B] buzzed the person up.

   [Mr A] told police that [the applicant] came into his house, and threw some red stuff in his face, which was powder. This caused [Mr A]’s eyes to sting a bit. [Mr A] complained that the male kicked him in his chest, and he fell to the floor. He told police that [the applicant] hit him with his fists, and kicked him, saying in Mandarin “I’m going to kill you.” [Mr A] entered his bathroom, and remained there for some time, until his girlfriend arrived. [Mr A] told police that [the applicant] and [Ms B] left his home, and he called 000. [Ms B] later sought compensation from [him], and he alleges that [the applicant] also requested the payment of compensation.

   [The applicant] disputes the circumstances of offending and, when interviewed by police [in] December 2016, provided a vastly different account to [Mr A]’s account to police. I have attached the transcript of his lengthy interview. [The applicant] was cautioned of his right to remain silent and his right to contact a lawyer. He exercised neither right and provided full answers to over 1300 questions.  [The applicant] told police that on 6 December he was very scared and worried about his girlfriend’s safety, and she wanted to commit suicide. She wanted him to come with her to [Mr A]’s house, but [the applicant] told her that he needed to work. She told him she wanted to commit suicide with [Mr A].  [The applicant] eventually tried to find a taxi and went to [Mr A]’s house, and when he saw [Ms B] with [Mr A] they were fighting, and [Mr A] tried to drag her into a room. [The applicant] told police that [Mr A] kicked [the applicant] in the tummy, and they got into a fight. [The applicant] then used the powder to knock him, and it was in self defence.

   [Information deleted].

   … At the conclusion of [the applicant]’s police interview, he was bailed on his own recognisance by police, on conditions that he report to police once a week, that he maintain a fixed residential address, that he not contact any witnesses for the prosecution except for the informant, that he not attend any points of international departure, and that he surrender all passports and not apply for a passport. Police did not hold sufficient concerns that he posed an unacceptable risk of committing further offences, else bail would have been opposed and the matter required to be decided by a Magistrate.

   [The applicant] has faithfully observed every condition of bail, and the court has routinely extended bail on the same terms, on each occasion of court attendance.

   … On its face, the charges are serious and involve violence and threats of violence. However, he has disputed the facts surrounding the offending since the moment he was interviewed by police, but has not had any opportunity to test the credibility and reliability of the complainant.

   On his account to police and substantiated by other evidence in the case, he held an honest and reasonable belief that his then-girlfriend [was] at risk of assault by him. This forms the basis of the defence at law to his conduct, should a jury eventually conclude that they can accept the complainant’s evidence beyond reasonable doubt.

   He was reacting to her account in circumstances of emotional duress. His relationship with her has ceased, and he is long removed from those difficult circumstances.

   He has no previous criminal history, and nothing subsequent to the charges.

   Any offending (which is disputed) is localised in history, was reactive to the difficult circumstances which had then presented, and will not happen again. There is no logical or rational link between the facts alleged by police and a generalised risk to any individual. It is respectfully submitted that the delegate can conclude there are no grounds for cancellation, and [the applicant]’s visa should not be cancelled.

7. As has been noted above the applicant was interviewed by police [in] December 2016 and a copy of the 1368 question police interview was provided to the delegate.

8. The applicant also provided a statement to the delegate of 13 Pages duration pertaining to his immigration history and the circumstances giving rise to the charges.

9. The applicant also provided to the delegate an affidavit provided to a Magistrates court in South Australia by [City 2] police dated [February] 2017. [Information deleted]. The police affidavit notes that [the applicant] “appeared genuinely fearful that if he drove back to Victoria with [Ms B] that she would assault him or make attempts to crash the car.”  The affidavit notes that the police determined that [Ms B] required a mental health assessment and the South Australian ambulance service was called to convey [Ms B] to the local hospital.

10. The applicant also provided the delegate with a number of certificates pertaining to studies undertaken in Australia.

11. The delegate considered this information and then proceeded to cancel the applicant’s visa in a decision made on 22 February 2018. The delegate concluded that the grounds for cancellation existed and having regard to the factors as to whether or not the visa should be cancelled determined that the applicant’s Subclass 500 visa should be cancelled.

12. The applicant made an application for merits review with the Tribunal and at the time of lodging the application annexed a copy of the Departmental cancellation decision to the application.

13. The applicant was invited in a letter dated 24 August 2018 to appear before the Tribunal on the 30 August 2018 for a review hearing. On 24 August 2018 the Tribunal received a request from the applicant’s representative that the hearing be postponed and the Tribunal agreed to postpone the hearing. The Tribunal re- scheduled a hearing to 19 September 2018.

14. In a letter dated 13 September 2018 the Tribunal was advised that the applicant had engaged specialist criminal lawyers for the purposes of his criminal proceedings in the state of Victoria, namely [Law Firm 2].  That letter noted that the applicant was due to attend a contested committal hearing at the [City 1] Magistrates Court [in] October 2018. The letter noted that the matter had been listed for committal on two previous occasions. The letter noted that the applicant had been charged with criminal offences under the Crimes Act 1958 (Victoria) and that full details of the charges, including a copy of the police brief of evidence had previously been provided to the Tribunal by the applicant’s migration representatives [Law Firm 3].  The letter notes that the charges arose out of an alleged incident occurring on 6 December 2016 concerning the applicant and his then girlfriend. The letter noted that the applicants then girlfriend was also charged with relation to this offending and had entered pleas of guilty to the charges of intentionally causing injury and blackmail.  The applicant’s migration representative had asked the applicant’s criminal representative to provide an opinion as to the possible outcome of the committal proceedings that had been listed for October 2018.

15. The letter noted the following:

    This is a highly unusual case in that the circumstances of the offending are not straightforward. On review of the materials contained in the brief of evidence, we have assessed the prosecution case against [the applicant] as a relatively weak one. Of course, [the applicant]’s position will be better known after the committal hearing, where witnesses, including the complainant [Mr A] will be cross-examined on their evidence.

    In our view, there is a real possibility that he will be discharged on the more serious charges, namely the aggravated burglary and the blackmail charges, following committal.

    In relation to the other charges, and on our assessment of the brief, there appears a prima facie case that [the applicant] was acting in self defence, moreover, there is evidence on the brief to suggest that he was acting in response to a sudden extraordinary emergency. Indeed telephone E-crime reports produced by police show that [the applicant] was in receipt of numerous text messages from [Ms B] on the evening of the incident-those messages tend to suggest that [Ms B] was behaving in a highly erratic matter on the night, and included threats by her to harm herself and/or others in the event [the applicant] failed to oblige to her request that he attend at the apartment”.

16. The Tribunal wrote to the applicant on 24 September 2018 advising that it had re-scheduled the hearing to 9 November 2018. On 25 October 2018 the Tribunal received a confirmation that the applicant would be attending the rescheduled hearing.

17. On 8 November 2018 the Tribunal received a number of documents prior to the hearing. In the letter the applicant’s representative advised that they were seeking a further adjournment in the matter because the legal proceedings relating to the applicant in the criminal courts in Victoria would not be finalised until late February 2019. The letter noted that the legal situation had now changed and 10 charges against the applicant had been dropped on legal advice and as a consequence the applicant had agreed to enter into plea arrangements and accept a plea of guilty on the remaining 2 charges. The letter noted that the matter had been adjourned for a plea hearing set for 30 January 2019.

18. The submission noted that with regard to the issue of risk referred to in s.116(1)(e) of the Migration Act that they wished to draw to the Tribunal’s attention the following matters:

    The DPP and defence counsel note that the charges should not bring a custodial sentence. However it is recognised that the Presiding Judge has the final say on whether he should or should not give a custodial sentence. [Mr D] QC recognises this issue but also notes that in his experience when Senior Counsel approach the Presiding Judge in these circumstances that the Presiding Judge generally agrees with Counsel that no custodial sentence will be imposed.

    The DPP has agreed to vary [the applicant]’s bail conditions so that he no longer has to report to the police.

    The defence chronology and outline of submissions on plea provided by [Mr D] QC and the psychological report from [Mr E] show that [the applicant]’s actions against [Mr A] were provoked by [Ms B]’s [allegations] and this event was situational and not likely to be repeated.

    [The applicant] has had no contact with [Mr A].

19. The Tribunal received a copy of a discharge summary from [a] Hospital dated [January] 2017. The Tribunal also received a character reference pertaining to the applicant that was prepared for the presiding judge in the criminal proceedings from [Ms C]. The Tribunal was also provided with a character reference for the applicant’s criminal proceedings provided by [the] father of a friend of the applicant. The Tribunal was also given a report from [Mr E] QC the Barrister engaged by the applicant to represent him in the criminal proceedings in Victoria provided to the applicants immigration lawyers. [Mr D]’s report states that:

    [The applicant] had originally been charged with 14 offences. Following discussions with Crown prosecutors it was agreed that [the applicant] would plead guilty to intentionally causing injury and unlawful imprisonment and that the remaining 12 charges would be withdrawn. The charges withdrawn included the serious offences of aggravated burglary and blackmail.

    [The applicant] was remanded to appear for plea and sentence at the County Court [in] November 2018 where the matter was to proceed on the basis that it was not any longer alleged that our client attended the victims flat with intent to assault him or that he was party to any unlawful plan by his co-accused [Ms B] to seek [compensation].  [The applicant] admits that he overreacted and punched and kicked and hit [Mr A] with a jar of chili powder when he saw [Mr A] pulling at [Ms B] when she opened the door to admit him to his flat and that he added threats and banged on the door to ensure that [Mr A] who had gone to the bathroom to clean up a cut to his head, was too scared to come out and resume hostilities (unlawful imprisonment). There is a dispute of fact as to who hit and kicked whom how many times. It is likely that the court will not see this as particularly important. As a result of the fracas [Mr A] needed 3 stitches for a cut on the head and suffered some minor superficial injuries to the face and limbs, none of which required treatment. [The applicant] suffered a knee injury for which he sought treatment that night and ultimately underwent surgery to repair ACL damage.

    Because this matter was already before the County Court, [Ms B] having previously been committed, it was not appropriate to seek to have [the applicant]’s remaining charges dealt with by the Magistrates Court. He was remanded for plea and sentence to the County Court [in] November 2018 which was the date already allocated to [Ms B]’s plea. Unfortunately, on that date, there was no judge available and, despite the fact that the court was aware that there were visa issues, the plea in mitigation was adjourned to [date] January 2019. This was the first available date.

    The Crown has advised the County Court that it does not believe that jail is the appropriate sentence for [the applicant] or [Ms B] who faces more serious charges. It will submit that a community corrections order should be imposed in each case and that a conviction should be recorded.

    For reasons which are apparent from the report of [Mr E] dated 28 October 2018 and the defence chronology and outline of submissions (both of which have filed on behalf of [the applicant]) it will be submitted by the defence that a bond or fine without conviction is sufficient in the case of [the applicant]. The court will be referred to decisions of the Supreme Court and Court of Appeal which support that proposition. Even if the court rejects that submission it would be open to impose a community corrections order without conviction. The essence of the defence submission will be that the offences were minor and occurred in a bizarre situation in which [the applicant] at the time clearly did not wish to be embroiled. [The applicant] is by nature a pleasant and peaceful man of academic bent and the possibility of the recurrence of violent behaviour by him is remote in the extreme. None of these matters are likely to be in dispute, but that does not mean that the court will necessarily feel constrained to agree with the defence submissions as to the appropriate penalty. The court is not bound by the Crown concessions as to penalty but, given the facts of this case, I do not believe there is any prospect that it would entertain a sentencing disposition involving jail.

    [The applicant] will remain on bail until [date] January 2019 hearing. His bail conditions were varied by consent in the County Court [in] November so that he is now bailed on his own undertaking with no reporting conditions. I anticipate that the plea in mitigation will be made on [date] January 2019 and that he will be sentenced either on that day or within the following 3 weeks”.

1. The Tribunal considered the request for a further adjournment of the review. The Tribunal determined in the circumstances of the case that the applicant’s representative could make a submission at the scheduled hearing on 9 November pertaining to a further adjournment. The applicant and the applicant’s representative attended the review hearing on 9 November 2018. The applicant’s representative appraised the Tribunal of the progress of the applicants matters within the criminal justice system in Victoria and suggested that the Tribunal should wait for the outcome of those proceedings. The applicant’s representative advised that the criminal matter should be dealt with by late February 2019 and in these circumstances the Tribunal agreed to adjourn the hearing for a date in early March 2019.

2. A hearing was rescheduled to 5 March 2019.  The applicant appeared before the Tribunal via video conferencing facilities to give evidence and present arguments.

3. At the outset of the review hearing the Tribunal explained the relevant issues in review, the process of merits review, and the prospective outcomes of the review.

4. The applicant provided his personal details.

5. The Tribunal asked the applicant about his overseas travel history and the applicant stated that Australia was the first overseas country that he had visited outside China.

6. The Tribunal asked the applicant about his immigration history and he advised that he arrived in Australia in 2011 as the holder of a Subclass 573 Student visa. The Tribunal asked the applicant about his study history. The applicant stated that he initially studied English language at an institute in Perth for 6 months. He then travelled to Sydney where he attended [a] College to undertake foundation studies, a preparatory course for university. The Tribunal asked the applicant whether he made satisfactory academic progress in the course and he advised that he did not complete the foundation studies course. The applicant stated that he completed 12 out of 18 months of study and had 4 units of the course to complete. The applicant stated that he transferred to [a second] College to undertake a [Diploma], a course of 12 months duration and that he successfully completed this course of study. The applicant stated that he then enrolled in a Bachelor [degree] at [the second] College and that to obtain the bachelor degree would take a further 2 years of study based on the completion of the diploma. The applicant stated that he completed 18 months of the Bachelor [degree] course and had 6 months to go but ceased studying because of the incident that happened in December 2016. The Tribunal asked the applicant whether he made satisfactory academic progress in this course and he advised that he failed two subjects in the first semester but overall had made satisfactory academic progress and that he had been excluded from [the second] University because of the issue giving rise to the cancellation of his visa.

7. The Tribunal noted that the applicant was charged in December 2016 but was not issued with a NOICC until 4 January 2018. The Tribunal asked the applicant what he did during the intervening 13 months between the charge and being served with the NOICC. The applicant stated that he enrolled in [a] double degree at [a third] University and that he successfully completed one year of the double degree. The applicant stated that after his visa was cancelled he was issued with a Bridging visa with no ability to continue with further study. The Tribunal asked the applicant to define his educational objectives in Australia. The applicant stated that he just wanted to pursue a bachelor degree and that he was close to completing this goal. The applicant stated that he had no aspiration to be a resident of Australia and that he wanted to return to China with a bachelor degree.

8. The Tribunal asked the applicant about the incident that occurred in December 2016. The applicant stated that a number of under fair things happened to him. The applicant stated that he had previously been in a relationship with [Ms B] who was also a Chinese student in Australia studying at [another institute] in [City 1]. The applicant stated that he was in a relationship with her for around 1 year to 18 months. He described [Ms B] as having an obsessive-compulsive disorder. He stated that during the first 3 months of the relationship all appeared to be well but that things deteriorated over time.  He advised that [Ms B] had family issues as her father had left her mother and her father had abused her mother in China. [Information deleted].

9. [Information deleted]. The applicant stated that [Ms B] was not able to drive in Australia as she only held at Chinese driver’s license. Despite this the applicant stated that [Ms B] drove the car and attempted to veer to the opposite side of the road and then she drove erratically before stopping the vehicle and the applicant advised that he waved a car down to call for help. The applicant stated that he took over control of the vehicle from [Ms B].  The applicant stated that he did not want to call the police because he did not want to attract adverse attention to himself as he and [Ms B] has were both international students. The applicant stated that when they returned to their motel the police attended. The applicant stated that [Ms B] was taken to the [City 2] hospital for a mental health assessment. [Information deleted]. The applicant stated that [Ms B] was kept in hospital overnight for observation. He advised that he was too afraid to drive back to [City 1] with [Ms B] in the car because of her mental health so he drove back on his own.

10. [Information deleted].

11. The Tribunal asked the applicant why he did not approach mental health services in Victoria after the events that transpired in [City 2]. The applicant stated that mental health in China is an issue that is swept under the table and that there were very few mental health services in China. The applicant stated that he asked [Ms B] to go to the police in Victoria but she did not wish to pursue it. The applicant stated that they did attend the police station in [City 1] after they were charged with the matters that led to the cancellation of their visas.

12. The applicant stated that [Ms B] wanted him to attend “this man’s” apartment and was threatening suicide if he did not adhere to this request. The applicant stated that [Mr A] had not given a truthful account to the police and that when he attended the apartment he was assaulted by [Mr A] first.

13. The applicant advised that [Ms B] was clearly mentally ill at the [time].  The Tribunal asked the applicant why he would engage with [Ms B] she was clearly mentally unstable. The applicant stated [that] he adhered to her request to attend the apartment to prevent anything adverse from happening to [Ms B].

14. The Tribunal made reference to the summary of circumstances prepared by Victoria Police found at folio 38 of the Departmental file.  The applicant stated that based on his criminal lawyer’s advice he entered into a plea deal with the police prosecutors and the matter did not go to committal or trial. The plea deal was that the applicant would plead guilty to 2 of the charges and the remaining 8 charges would be dropped. The applicant stated that with regard to sentencing on the 2 charges he had to go before a very tough criminal judge. The applicant advised that he was given two community service orders with regard to the 2 offences to which he pleaded guilty. 

15. The Tribunal asked the applicant what hardship he would experience if his visa remained cancelled. The applicant stated that he was the subject of the community corrections order that he wished to comply with.  The applicant stated that he wanted to complete his Bachelor’s degree in Australia. The applicant stated that as a consequence of the incident of December 2016 he had been suffering a lot and had been depressed. The applicant stated that he had not been able to work or study for the past year.

16. The Tribunal asked the applicant’s representative whether he wished to make any submissions. The applicant’s representative advised that the applicant had not contacted the victim [since] the incident and had been leading an exemplary life since the incident.  The applicant’s representative made reference to the report from [Mr E] the psychologist, dated 29 October 2018 pertaining to the applicant and advised that the applicant would like to be given an opportunity to complete his study. He advised that the applicant upon completion of his bachelor degree intended to return to China to pursue career opportunities in his home country. The applicant’s representative stated that the applicant’s actions in December 2016 were a reaction to the circumstances that he found himself in, with his ex-girlfriend threatening suicide and being mentally unstable at the time.

17. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

    RELEVANT LAW

18. 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.

19. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal 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.

20. 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.

21. 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)). 

22. 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?

23. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in November 2017 the Department received information from the Victoria Police that on 27 December 2016 the applicant was charged with the following offences:

    ·Enter building to commit offence- assault 

    ·Aggravated burglary – offensive weapon

    ·Handle / receive / retention of stolen goods

    ·Use a carriage service to menace

    ·Make threats to kill

    ·Aggravated burglary person present

    ·Blackmail

    ·False imprisonment

    ·Theft

    ·Assault by kicking

    ·Recklessly cause injury

    ·Intentionally cause injury

24. It is noted that the charges were laid [in] December 2016 and the matter has now been finalised in the Victorian criminal justice system with the applicant entering a plea deal. The effect of this was that the all charges were dropped apart from the charge of intentionally cause injury and false imprisonment. The applicant was duly convicted of these two charges and is now the subject of a Community Corrections Order for which he needs to complete unpaid community work as per the orders.

25. In written submissions to the Department in response to the NOICC and in written submissions to the Tribunal the applicant has argued that there is no ground for cancelling his visa because the charges arise from a one off and very specific incident.  The applicant’s representative has submitted that the DPP and defence counsel both held the view that the applicants charges would not bring a custodial sentence and that was borne out by the imposition of community correction orders. The applicant’s representative further submitted that the DPP agreed to vary the applicant’s bail conditions so that he no longer had to report to police indicative of a mitigation of risk of the applicant living in the community.  Further to this that the defence chronology and outline of submissions on the plea of mitigation provided by the applicants criminal barrister and by the psychologist [Mr E] shows that the applicant’s actions against [Mr A] were provoked by [Ms B]’s [allegations] and that this event was situational and not likely to be repeated.

26. Recourse to the psychologist’s report prepared by [Mr E] dated 29 October 2018 notes that prior to the incident of December 2016 the applicant had no criminal antecedents. The report notes that the applicant was assessed for the risk of committing a further offence of violence using the current best practice assessment tool namely HCR-20 with a result of ‘low’ and [Mr E] finding that “as far as I could ascertain his offending behaviour was strictly situationally motivated and reflective of the prevailing circumstances and in particular the fact that at the time of offending it was his understanding that [details deleted]. In my opinion it is therefore not necessary for [the applicant] to undertake an anger management program or a Men’s Behaviour Change Program.”

27. The Tribunal has considered the applicant’s circumstances. The Tribunal considers the nature of the conduct that led to the charges to be significant. The applicant pleaded guilty to the charges that included violent behaviour, such as false imprisonment and intentionally cause injury for which he received community corrections orders.  However the Tribunal has placed significant weight on the findings of [Mr E] in the psychological report dated 29 October 2018.

28. The Tribunal has taken into consideration the applicant’s evidence, which is supported by various reports and submissions that he responded to a call from [Ms B].  The evidence further indicates that [Ms B] was exhibiting very fragile mental health in the days leading up to the incident giving rise to the [charges].  The Tribunal accepts that the applicant was approached by [Ms B] to intervene and that [Ms B]’s behaviour and fragile mental state influenced the applicant’s decision to engage in the conduct that gave rise to the charges.  The Tribunal places significant weight on the fact that the events on the day in question were an isolated incident and not a pattern of behaviour. There is no evidence that the applicant had ever engaged in violence or indeed any criminal conduct before or after the incident of December 2016.

29. The Tribunal gives significant weight to the fact that the incident in question occurred in December 2016 and the applicant remained in the community until the cancellation of his visa in February 2018 and on bail until the finalisation of his criminal matter in March 2019. There is no evidence before the Tribunal that the applicant breached his bail conditions whilst he was living in the community and indeed as has been noted above the applicant’s bail conditions were amended so that he did not have to report to police. This evidence provides a strong indication and the Tribunal accordingly finds that the applicant does not present as a risk to the safety of an individual or individuals in the community.  Indeed during the period since the incident in December 2016 to date in which the applicant has lived in the community he has not caused harm to any individual.

30. Having regard to all of the applicant’s circumstances, the Tribunal is not convinced that his presence in Australia is or may be a risk to any other person or the community.

31. The Tribunal is not satisfied that the presence of the applicant 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 community or the health or safety or 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

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    John Cipolla
    Senior Member