1810854 (Migration) - [2018] AATA 4145

1810854 (Migration) [2018] AATA 4145 (29 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1810854
MEMBER:Katie Malyon
DATE:29 August 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 457 (Temporary Work (Skilled)) visa.

Statement made on 29 August 2018 at 2:24 pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – risk to the health or safety of an individual – alleged violent behaviour to a work colleague – criminal charges dismissed – two previous convictions not disclosed – credible evidence of rehabilitation – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 378
Migration Regulations 1994, Schedule 2
CASES
Gong v MIBP [2016] FCCA 561
Qiao v MIAC [2008] FMCA 380
Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732
Tien v MIMA (1998) 89 FCR 80

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 April 2018 made by a delegate of the Minister for Home Affairs to cancel the secondary Subclass 457 (Temporary Work (Skilled)) visa of the applicant, Bangladeshi national [name], under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that [the applicant] is or may be, or would or might be, a risk to the health or safety of an individual or individuals: in this case the delegate named a work colleague of [the applicant], [Mr A].
The issue in the present case is whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.
[The applicant] appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. Both [the applicant] and [his wife] used the interpreter on occasions. [The applicant] was represented in relation to the review by his registered migration agent, who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant’s] visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. Relevant to this case, these include the ground set out in s.116(1)(e) of the Act. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1810854 (Migration)

Details

AGLC: 1810854 (Migration) [2018] AATA 4145
Case: [2018] AATA 4145
Decision Date: 29 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by a Subclass 457 (Temporary Work (Skilled)) visa holder against the cancellation of his visa by the Department. The cancellation was based on the ground that the visa holder's presence in Australia posed a risk to the health or safety of an individual, stemming from an alleged violent incident involving a work colleague. The visa holder had been charged with common assault, being armed with intent to commit an indictable offence, and stalking or intimidating with intent to cause fear or physical harm, although these charges were later dismissed.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the meaning of "good order of the Australian community" in the context of the visa holder's alleged conduct and assess the risk posed by his presence in Australia. Furthermore, the Tribunal had to determine whether, in light of all relevant circumstances, including evidence of rehabilitation and the impact on his family, the cancellation of the visa was the preferable decision.

The Tribunal found that while the alleged violent behaviour could potentially satisfy the ground for cancellation under section 116(1)(e), it was not a mandatory cancellation. In exercising its discretion, the Tribunal considered the applicant's submission that he was presumed innocent until proven guilty, the dismissal of criminal charges, and the strong evidence of rehabilitation. This evidence included character references from his employer and medical practitioner, a statutory declaration from the applicant, and crucially, the significant support of his wife, as evidenced by her financial surety and the bail conditions requiring him to reside with her. The Tribunal also noted the applicant's long period of residence in Australia, his established family life, and the potential negative impact of his removal to Bangladesh.

Ultimately, the Tribunal concluded that the preferable decision was not to cancel the applicant's visa. Accordingly, the Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e) of the Act, the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. In that case, the Court held 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.[1] 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.[1] Tien v MIMA (1998) 89 FCR 80, Goldberg J at [94]Background [The applicant] arrived in Australia in October 2007 as the holder of a [temporary] visa and has remained in Australia since then on subsequent [similar] visas and, most recently, as the holder of a secondary Subclass 457 visa. He and his wife [named] have been married for 17 years and have 2 children. [One child] is [age] years old and [the other] is [age] years old. On 11 April 2018, the delegate cancelled [the applicant’s] Subclass 457 visa on the basis that he had allegedly been engaged in violent behaviour involving a work colleague at a [business] in [Suburb 1] [in] December 2017. The police report advises that [the applicant] allegedly had an argument with work colleague, [Mr A]. It is claimed he allegedly said “I will kill you” to [Mr A] and then pulled out [a weapon] which he then pointed at the alleged victim and threatened “I will kill you” again. He then pushed [Mr A] causing him to trip on a step and fall sideways into [furniture]. [The applicant] then held the [weapon] to the [alleged victim] and, for a third time, threatened to kill him. At this point, 2 other workers came to the assistance of [Mr A] to stop further assaults. The [business] Manager also came into the [work area] and attempted to get [the applicant] away from his victim before [the applicant] fled the premises and went to his own place of work at another nearby [workplace] owned by the same company as where the alleged incident occurred. The police were called to the scene by [Mr A]. The police went to the other nearby [workplace] where [the applicant] was working, arrested him and took him into custody. [The applicant] was charged with 3 offences: common assault; armed with intent to commit indictable offence; and, stalk/intimidate with intent to cause fear or physical harm. In response to the delegate’s Notice of Intention to Consider Cancellation (NOICC) sent 6 March 2018 and which sets out details of the alleged incident and charges as outlined above, [the applicant’s] representative provided assorted documentation to the Department including:1)Submission from his representative which states, inter alia:a) [the applicant] was granted bail and, on that basis, he is not considered by the judiciary to be a risk to the health or safety of the Australian public.b) charges in relation to [the applicant] remain pending and that he should be presumed innocent until proven guilty; c) the Manager of the [business] where the alleged incident occurred has provided a character reference letter for [the applicant] in which he also claims he did not see anyone with any sort of a dangerous weapon and he continues to support [the applicant]; d) [the applicant] is the direct superior of the alleged victim and, if there were any work related performance issues, he could dismiss the alleged victim from employment without have to resort to physical violence; e) the impact on [the applicant’s] wife and his 2 young children if he is forced to return to Bangladesh; and, f) the impact on [the applicant] personally if he is forced to return to Bangladesh where, based on information in the accompanying travel warning published by the Australian Department of Foreign Affairs (DFAT), life poses great danger. 2)Letter from criminal lawyer [Lawyer A] dated 13 March 2018 in which he states he is representing [the applicant] in relation to charges laid, that [the applicant] intends to plead not guilty and, in his opinion, “it is extremely unlikely that [the applicant] committed the crime claimed by the alleged victim and the case is likely to be dismissed by the Court”. 3)Statutory Declaration from [the applicant] dated 23 March 2018 in which he states, inter alia, he is not a violent man and has never been convicted of any violent offence in Australia or overseas and, further, he has never used any form of physical violence or punishment to his children, his wife or anyone else.4)Character reference letter dated 21 March 2018 from [name], [Manager] at the [business] where the alleged incident occurred.5)Additional character reference letters from the following: a) [name], Public Accountant, dated 21 March 2018;b) [name], [the applicant’s] medical practitioner, dated 21 March 2018;c) [name], Accountant, dated 20 March 2018;d) [name], real estate agent; e) [name], Counsellor with [a named agency] dated 20 March 2018; f) [name] dated 20 March 2018; g) [Director A], Director of the company employing [the applicant] dated 20 March 2018; h) [name], [a manager] of [a] Medical Centre, dated 21 March 2018; and, i) [name] dated 21 March 2018; and, 6)Travel warning smartraveler.gov.au – Bangladesh published by DFAT.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel [the applicant’s] visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE 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. Relevant to this case, these include the ground set out in s.116(1)(e) of the Act. 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? A visa may be cancelled under s.116(1)(e) of the Act 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]. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s.116(1)(e) of the Act, the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. In that case, the Court held 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.[1] 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.[1] Tien v MIMA (1998) 89 FCR 80, Goldberg J at [94]Background [The applicant] arrived in Australia in October 2007 as the holder of a [temporary] visa and has remained in Australia since then on subsequent [similar] visas and, most recently, as the holder of a secondary Subclass 457 visa. He and his wife [named] have been married for 17 years and have 2 children. [One child] is [age] years old and [the other] is [age] years old. On 11 April 2018, the delegate cancelled [the applicant’s] Subclass 457 visa on the basis that he had allegedly been engaged in violent behaviour involving a work colleague at a [business] in [Suburb 1] [in] December 2017. The police report advises that [the applicant] allegedly had an argument with work colleague, [Mr A]. It is claimed he allegedly said “I will kill you” to [Mr A] and then pulled out [a weapon] which he then pointed at the alleged victim and threatened “I will kill you” again. He then pushed [Mr A] causing him to trip on a step and fall sideways into [furniture]. [The applicant] then held the [weapon] to the [alleged victim] and, for a third time, threatened to kill him.

Decision

Reasons for decision

Having regard to the circumstances as a whole and for the reasons outlined above, the Tribunal concludes the preferable decision is that [the applicant’s] visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.Katie MalyonMember

Ratio Decidendi

Legal Principle Established

For this reason, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether [the applicant’s] Subclass 457 visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Where exercising a discretionary power the Tribunal is required to have regard to any relevant lawful policy, in this case, the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, as a relevant consideration. However, policy is not binding on the Tribunal.[3] This was supported in Re Drake and MIEA (No 2) where Brennan J stated ‘the Tribunal ought not, indeed cannot, deprive itself of its freedom to give no weight to a Minister's policy in a particular case’. [4]Justice Brennan also stated:In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.[5] [3] See, for example, Qiao v MIAC [2008] FMCA 380 (Orchiston FM, 28 March 2008) at [29] and Skoljarev v Australian Fisheries Management Authority [1995] FCA 1732 (Davies J, 12 December 1995) [4] (1979) 2 ALD 634 at 644 [5] Ibid at 642 While policy sets out a number of factors that may be considered when deciding whether it is appropriate to cancel a visa, in the circumstances of this case the Tribunal considers it highly relevant that the 2 domestic violence incidents occurred within the space of 2 weeks more than 7 years ago and, importantly, there is overwhelming and credible evidence from [the applicant’s wife] of her husband’s rehabilitation. The Tribunal also notes the bail conditions imposed on [the applicant’s] release from detention [in] January 2018 require that, relevantly, he: forfeits cash of $4,000; resides at an address in [Suburb 4] (notably, this is the same address on [the applicant’s wife’s] Learner Driver Licence and the address where she and [the applicant] advised the Tribunal they have lived together as a family for 9 years); significantly, complies with the curfew requiring him to remain at home from [dates in] January 2018 - [February] 2018 between the hours of 11:00 pm and 5:00 am unless in the company of [the applicant’s wife] (emphasis added). Furthermore, the bail report indicates that [the applicant’s wife] has agreed to forfeit further $4,000 if her husband fails to appear before the court when required to do so. It is evident to the Tribunal that, based on the support of his wife and employer, [the applicant] was granted bail after 5 weeks of detention so that the family could resume living together from [a date in] January 2018 at their [Suburb 4] home.