1815337 (Migration)

[2020] AATA 1884

1815337 (Migration) [2020] AATA 1884 (6 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1815337

MEMBER:Mark O'Loughlin

DATE:6 May 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

I, Member M. O’Loughlin, certify that this is the Tribunal’s statement

of decision and reasons.

Statement made on 6 May 2020 at 9:20 am.

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – risk to Australian community – serious criminal charge – prosecutors not proceeding with prosecution – allegations and evidence untested in court – no other convictions or charges – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116

CASES

Gong v MIBP [2016] FCCA 561

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 25 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(i) on the basis that he was satisfied that the visa holder’s presence may be a risk as contemplated by that provision. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. Under s.116 of the Act, the Minister may cancel a visa if 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)(i). 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?

6. 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].

7. Although there need not be a direct, solid or certain foundation, it must be assumed that for the Minister to be “satisfied” there should be a reasonable basis for that satisfaction, and this appears to be assumed in the authorities such as Gong v MIBP.

8. 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.

9. The applicant was charged with a serious criminal offence. 

10. The Tribunal has had regard to the decision of the delegate, a copy of which was provided by the applicant at the time of his application for this review.

11. The recitation of facts in the delegate’s decision sets out that he had available to him a summary of information relating to the prosecution of the charge including statements from the alleged victim and other parties.

12. Those documents appear to be among those included in the papers submitted to the Tribunal by the Secretary under S.352 and to which the Tribunal has had regard.

13. At the time of the delegate’s decision the charge had not been taken to trial and the evidence against the applicant had not been tested.

14. There is no doubt that grounds for cancellation under 116(1)(e) can be established in circumstances where an applicant has been charged with, but not convicted of, criminal behaviour that gives rise to a relevant risk.

15. The Tribunal notes the difference between the minimum relevant standard for grounds for cancellation (that the applicant may be a risk) and the requirement for a criminal conviction (that the accused is proven to have committed the alleged crime beyond reasonable doubt). 

16. Grounds for cancellation arise under s.116(1)(e) if the Minister (or the Tribunal on review) is satisfied that the applicant’s presence in Australia may be a relevant risk and does not require proof that he has engaged in any particular behaviour.

17. Where an applicant has been charged with a crime but the evidence thereof has not been tested by a trial, the Minister (or the Tribunal on review) might infer that a risk may arise because the police have assessed the evidence in their possession and deemed it to be sufficiently reliable to warrant prosecuting the applicant.

18. On 20 February 2020 the applicant, through his representative, provided the Tribunal with a certificate indicating that the prosecution has entered a nolle prosequi in relation to the charges in the District Court of South Australia.

19. The Tribunal understands that the entry of a nolle prosequi indicates that the prosecuting authorities are unwilling to proceed with a prosecution.

20. The Tribunal does not have any information to indicate why the nolle prosequi was entered.

21. The fact that a nolle prosequi was entered means that the evidence held by the prosecution has not been tested in a court and its reliability has not been established. 

22. The Tribunal notes that there are circumstances in which a nolle prosequi may be entered without there being any change in the assessment of the reliability of the prosecution evidence. One example might be where the prosecution accepts that an accused lacked the capacity to form an intention to commit a crime and a conviction is therefore unlikely. Another may be where important corroborative evidence is lost or diminished by, for example, the death or impairment of a witness.

23. A further example could be where the prosecution does not view the evidence as being as strong as the police do.

24. In this matter the Tribunal does not have any evidence about the reasons why the nolle prosequi was entered.

25. It is not now clear whether the police maintain their view about the reliability of the evidence against the applicant although the entry of the nolle prosequi suggests that that may now be in doubt.

26. Without any clear indication that the evidence available is believed to be adequate to sustain a prosecution the Tribunal is left with untested allegations drawn from a summary in police notes.

27. There is no evidence that the allegations were sworn.

28. In the circumstances the Tribunal finds that the evidence in relation to the allegation made against the applicant is not sufficiently reliable to satisfy the Tribunal that such crime was or may have been committed. The Tribunal again observes that “to satisfy” means “reasonably to satisfy”.

29. The applicant has submitted a recent National Police Certificate and the Tribunal is satisfied that the applicant does not have any other convictions in Australia.

30. There is no evidence that the applicant has other outstanding criminal charges against him.

31. There is no other evidence available to the Tribunal that suggests that the applicant represents a relevant risk. 

32. For these reasons, 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

33. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Mark O'Loughlin
    Member