1812966 (Migration)

[2018] AATA 3770

1812966 (Migration) [2018] AATA 3770 (20 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812966

MEMBER:Kira Raif

DATE:20 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 20 July 2018 at 4:11pm

CATCHWORDS

Migration – Cancellation – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) visa – Risk to the safety of the Australian community – Charged with criminal offences – Grounds for cancellation exist – Cancellation would cause considerable hardship to the applicant and his family – Best interests of the children – Decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth)

CASES
COT15 v MIBP (No 1) (2015) 236 FCR 148
Gong v MIBP [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 2 May 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 visa applicant is a national of Nigeria born in [year]. He was granted the Partner (Provisional) visa in June 2015 and arrived in Australia in September 2015. On 28 March 2018 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 4 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse. The applicant was represented in relation to the review by his registered migration agent on a pro bono basis. 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 (Gong) 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 Migration Regulations 1994 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 at [41]).

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 to the Tribunal a copy of the primary decision record. It indicates that on 7 February 2018 the Department received information from the [Police] that the applicant was arrested and charged with the following offences:

   a.Traffic commercial quantity cocaine

   b.Possess cocaine

   c.Negligently deal with proceeds of crime.

10. In his written response to the NOICC the applicant argues that there are no grounds for cancellation because he has not been convicted but only charged and until the offending he had been law abiding and never breached visa conditions and there is no pattern of behaviour to indicate that he would relapse into the same conduct. The Tribunal acknowledges that evidence and accepts that a charge cannot be equated with a finding of guilt. However, the ground for cancellation in s.116(1)(e) is not limited to a finding of guilt or a conviction. The ground is very broad and includes circumstances where the visa holder’s presence in Australia ‘may be’ or ‘might be’ a risk. It is a lower threshold than what is envisaged in the criminal law. Thus, the fact that the applicant has not been convicted does not negate the possibility that the ground for cancellation may exist.

11. The Tribunal also acknowledges the applicant’s written submission that he has no history of offending and has never been charged with any offences before. He repeatedly told the Tribunal in oral evidence that he has never been in trouble before and has never done anything wrong and he has never been a risk to the community. While the Tribunal accepts that this may be so, the Tribunal is of the view that the possibility of a risk to the community may arise, or be evidenced by, a single offence or a first offence and need not involve a series of offences. In the Tribunal’s view, the nature of the present charges – trafficking a commercial quantity of drugs which is likely to affect a number of people – is such that the risk may be established even if the applicant has never been convicted or charged previously.

12. The applicant told the Tribunal that his committal hearing will occur [in] July and the date of the trial has not been fixed yet. The applicant said that he has pleaded not guilty and intends to contest the charges. The applicant said he has been granted bail and the conditions require him to submit his passport to the police, report daily, remain in [City 2] and not contact his co-accuser and others.

13. With respect to the circumstances that led to the charges the applicant told the Tribunal that he was arrested on 7 February on the street.  A few weeks earlier, he met a man from Nigeria in [City 1]. They talked and the man asked for the applicant’s phone number. Because the applicant’s phone was not working, this man gave him his phone. They met again after some time and talked about food. The man called him later on and asked the applicant to tell him if he planned to go to [City 2] because he wanted to send something to a friend. The applicant said that he thought the package this man gave him contained food, so he did not have any concerns. The applicant said he did not know what was inside the package.

14. The applicant said that after he got off the bus in [City 2], he was walking around looking for a hotel. He went to [City 2] to have a rest and to have a holiday. His wife suggested that he should also make inquiries about the cost of living. When he reached [City 2], somebody called him on the phone and was aggressive. Soon after the police arrested him. The applicant said that DNA testing showed his fingerprints were not on the package or inside the package.

15. The Tribunal has found the applicant’s evidence concerning the events that led to the charges unpersuasive. In the Tribunal’s view, it makes little sense that the applicant would travel to [City 2] for a holiday or to research the cost of living without making any preparations, making no plans for accommodation or for his activities once he arrived. The Tribunal considers it implausible that the applicant would not be suspicious about an unknown person he had just met offering him a mobile phone and then offering him a sealed package to carry to a different city. The applicant’s own evidence is that he has travelled extensively overseas and would be well aware of the risks of carrying packages for others. The Tribunal does not accept that the applicant would simply accept a sealed package from a person he hardly knew and that he genuinely believed there was food inside. The fact that there was no applicant’s DNA on the package may suggest that he did not prepare it but the applicant appears to admit to carrying it, which is consistent with the charges.

16. With respect to the funds, the applicant claims that before he travelled, he withdrew $500 from his account and bought a few things for the road and he had $450 on him. The applicant said that he had shown the bank records to the police but they did not believe him. At the time of this decision, there is no evidence that this charge was withdrawn.

17. The applicant states that he has been granted a Criminal Justice visa to enable him to live in the community and that shows he is not a risk to the community. The Tribunal is mindful that the issues relevant to the grant of a Criminal Justice visa are different to those that arise in the present review.

18. The Tribunal has considered a number of character references and supporting statements, including those from the sponsor’s family. The Tribunal accepts that those who provided statements believe the applicant to be a good person.   

19. The Tribunal has considered the circumstances, as set out in the primary decision and the applicant’s evidence. The applicant has been charged with very serious offences. The applicant denies that he was involved in the trafficking of drugs and claims he was only doing a favour for a man he met; he was unaware of the drugs and tried to help the police catch the others. For the reasons set out above, the Tribunal has found the applicant’s evidence unconvincing. Having regard to the serious nature of the charges, the Tribunal has formed the view that the applicant’s presence may be a risk to the safety or good order of the Australian community

20. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

22. The purpose of the Partner visa is to enable the visa holder to remain in Australia with his partner. The applicant said that his permanent visa application remains ongoing.

23. The applicant’s evidence to the Tribunal is that he has been married to an Australian citizen for five years and has two children from that relationship and he claims he also cares for a child from the sponsor’s previous relationship. [The] sponsor’s family live in [City 1] while his partner and children moved to [City 2] to be closer to him.

24. The applicant told the Tribunal that he had few opportunities in Nigeria but he has more opportunities in Australia. He could have also stayed in [Country 1] with the family but thought they would have better opportunities in Australia. His children cannot live in Nigeria because of the safety risks and they are Australian citizens.

25. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia and that the presence of his immediate family, including two young children and a stepchild, may constitute a compelling need for the applicant to remain in Australia.

    The extent of compliance with visa conditions

26. The Tribunal is not aware of any breaches of the visa conditions. The applicant told the Tribunal that he has never been in trouble before and has never had any criminal charges. The applicant told the Tribunal he has been cooperative with the police.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

27. With respect to hardship, the applicant refers to the presence of his immediate family in Australia. The applicant states in his written submission to the delegate that his partner is a full-time student at TAFE and has been forced to relocate to [City 2] until the applicant’s matter is resolved. The applicant states that he is the breadwinner for the family and if the visa is cancelled, his family would be permanently separated from him. He will also be unable to provide for the family and that will cause extreme financial hardship to the family.

28. The applicant told the Tribunal that he had been working and supporting his family. Now he has been granted a Criminal Justice visa and no institution would hire him with such a visa. He has not been able to find a job. The applicant said that he has no money to support the family. His partner has been trying to find a job and has been applying for jobs but it is difficult to find work. The partner’s evidence to the Tribunal is that she had job interviews and hopes to be offered a job soon.

29. The Tribunal accepts that the cancellation of the visa has caused financial hardship to the family and the Tribunal is also prepared to accept that as a result of the charges, the applicant and his family may have suffered emotional and psychological hardship. The Tribunal also acknowledges the applicant’s evidence that his partner is in receipt of Centrelink benefits and that the family receives support from the community and the church.

30. The applicant told the Tribunal that he has not lived in Nigeria for many years and would have no support there. However, he told the Tribunal that he has parents in Nigeria, even if they are elderly. He also said that he had support from his extended family when he established himself in [Country 1] and subsequently in Australia. The applicant has not satisfied the Tribunal that at least some level of support will not be available to him in Nigeria. Further, the Tribunal is not satisfied that the applicant will be unable to support himself, being a mature adult capable of living independently. Despite his recent absence from Nigeria, the Tribunal does not accept he would be unable to re-establish himself in that country.

31. The Tribunal accepts that if the visa is cancelled and if the applicant is required to leave Australia, that may cause separation of the applicant from his partner and children. The Tribunal accepts that there may be a significant financial disadvantage to the family without the applicant’s support. Overall, the Tribunal accepts that considerable hardship may be caused to the applicant and his family as a result of his visa being cancelled.

    Circumstances in which ground of cancellation arose

32. The ground for cancellation arises because the Tribunal has formed the view that the applicant’s presence in Australia is or may be a risk to the safety of an Australian community or a segment of the community. The applicant has been charged with a number of offences and the criminal matter remains outstanding. The Tribunal acknowledges the applicant’s evidence that he has not committed any crimes and that he is not guilty.

    Past and present behaviour of the visa holder towards the Department

33. Nothing adverse is known about the applicant’s past and present behaviour towards the Department.

    Whether there would be consequential cancellations under s.140

34. There are no consequential cancellations under s.140.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

35. If the applicant’s visa is cancelled and unless he is granted another visa, the applicant will be an unlawful non-citizen and may be detained. The applicant told the Tribunal that he has been granted a Criminal Justice visa. There is no suggestion that he will be detained indefinitely. The Tribunal acknowledges that unless the applicant is granted another visa, he may be an unlawful non-citizen and subject to detention and possible removal from Australia. There may be restrictions on the applicant’s future travel and future visa applications as a consequence of the cancellation. There are no provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention. Although the Tribunal accepts that in relation to most visa categories, the applicant may be subject to an exclusion period in Public Interest Criterion (PIC) 4013 or Special Return Criterion (SRC) 5002, the Tribunal also notes that it may be possible for the applicant to depart Australia voluntarily to avoid being removed and the exclusion under SRC 5002.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

36. The applicant told the Tribunal that he has not been back to Nigeria for many years and would not have any support there. The Tribunal does not consider that claimed lack of support gives rise to Australia’s protection obligations. The applicant referred to the unsafe situation in the country; he referred to kidnappings and killings. The Tribunal considers such broad references without consideration of the applicant’s personal circumstances unhelpful.

37. The Tribunal is also mindful that the applicant is able to make an application for a protection visa if he believes Australia owes him protection obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is nothing to suggest that the applicant would be prevented from validly applying for or being granted a protection visa. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations.

1. The applicant has two children from his present relationship and claims to play a parental role in relation to his stepdaughter. The applicant states that he plays a significant role in the lives of his children and takes them to various lessons and activities. A cancellation of the visa would lead to the applicant being deported and separated from his children. The applicant states that he has never abused or neglected his children and that it is in the best interest of his children for them to remain with their father. The applicant refers to the various provisions of the International Covenant on Civil and Political Rights (ICCPR). In oral evidence the applicant states that he is the primary provider for the family and the children and if the visa is cancelled, the children will grow up without a father. The Tribunal is mindful that the cancellation of the present visa does not preclude the applicant from making other visa applications in the future, including an application for a partner visa or a parent visa. Nevertheless, the Tribunal acknowledges that it may be in the best interests of the applicant’s children that they remain with the applicant and that the applicant is permitted to stay in Australia.

2. The Tribunal has considered the applicant’s circumstances. The Tribunal has formed the view that there are grounds for cancelling the visa because the applicant’s presence in Australia may be a risk to the safety or good order of the Australian community. The Tribunal notes that the charges relate to very serious offences of drug trafficking and the applicant does not appear to deny that he was carrying the drugs, even though he claims he was unaware of the content of the package he was carrying. The Tribunal considers there are strong reasons why the visa should be cancelled.

3. However, the Tribunal places significant weight on the fact that the applicant has three young children in Australia. The evidence of the applicant and his partner is that the applicant supports the family and the three children and he was the breadwinner for the family prior to his detention. The evidence indicates that the applicant’s partner has found it difficult to find employment and the family had relied on the applicant to meet their financial obligations. Since his detention, they rely on community and church support. The Tribunal also notes that it may not be possible for the family to relocate to Nigeria due to the poor security situation in the country. That is, if the visa is cancelled and if the applicant is required to leave Australia, the applicant and his partner and children would be separated.  The Tribunal has formed the view that the best interests of the children require the applicant’s presence in Australia.

4. The Tribunal has formed the view that the cancellation of the visa would cause considerable hardship to the applicant and his family. There are no other known instances of non-compliance or breaches of the law.

5. The Tribunal is also mindful that the visa in question is a temporary one. Should the applicant be deemed to be a person of bad character, this assessment will affect the decision to grant him the permanent visa. Further, if there is new evidence relating to the criminal charges, for example if the applicant is convicted or if new charges are laid, there may be grounds for again cancelling the applicant’s visa in the future.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

7. 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