1828705 (Migration)

[2018] AATA 5540

1828705 (Migration) [2018] AATA 5540 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1828705

MEMBER:Irene O'Connell

DATE:13 December 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 010 (Bridging A) visa.

Statement made on 13 December 2018 at 2:00pm

CATCHWORDS
MIGRATION – Subclass 010 (Bridging A) visa – cancellation – criminal offence – compliance  with bail conditions – responsibility for wife and child – focus on proving innocence through court process – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116(1)(e)
Migration Regulations 1994, Schedule 2

CASES

Gong v Minister for Immigration & Anor [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 501Kof 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 26 September 2018) made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a Turkey national. He is married with a young son. He arrived in Australia [in] October 2015 as the holder of a [temporary] visa. His [temporary] visa ceased on 2 September 2017 and he applied for a protection visa. He was granted a bridging visa pending the processing of his protection visa application.

3. The applicant was arrested by the [police] [in] August 2018 and charged [following] an incident on the [date] August 2018. He was issued with a Notice of Intention to Consider Cancellation (NOICC) on 11 September 2018 and he provided a written response to the NOICC on 16 September 2018.

4. The delegate cancelled the visa under s.116(1)(e); that is that the applicant 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. The delegate found that the applicant may pose a risk to the safety of a segment of the Australian [community].

5. On 1 October 2018 the applicant sought review of the delegate’s decision and appeared before the Tribunal on 13 November 2018 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter. The applicant was unrepresented.

6. The applicant is in immigration detention [and] was taken into immigration detention as a result of the cancellation of his Bridging Visa A. He applied for and was refused a Bridging Visa E. The refusal was affirmed on review at the AAT on 1 November 2018.

   RELEVANT LAW

7. 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. Section 116(1)(e) stipulates that the ground for cancellation as ‘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.’

8. The explanatory memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 provides some clarification of the meaning of the provision, and states the purpose of s.116(1)(e) is:

   … firstly to clarify that this ground for cancellation applies where the risk of harm is to an individual, or a segment of the Australian community, as well as to the broader public. Secondly, the amendment seeks to lower the threshold of this cancellation ground, so that it exists where there is a possibility that the person may (or might on their arrival in Australia) be a risk to the safety or good order of an individual or community in Australia, as well as where there is demonstrated to be an actual risk of harm.

9. 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.

10. If satisfied that the ground for cancellation is made out, the decision maker is required to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

11. 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.  However, Department’s Procedures Advice Manual PAM3 on ‘General visa cancellation powers’ provides guidance on matters relevant to the exercise of discretion.

    EVIDENCE BEFORE THE TRIBUNAL

12. The Tribunal has before it Departmental file number [in] respect to the cancellation of the applicant’s Bridging visa. This file contains a NOICC (dated 11 September 2018), the applicant’s response to this notice (undated) and the decision record of the delegate cancelling the visa. Also on the department file is [Police] ‘FACTS SHEET’ (dated [August] 2018) setting out the details of the arrest and charging of the applicant under [a section] of the Crimes Act 1900.

13. In his response to the NOICC the applicant maintains that he is innocent and that it would be unfair to cancel his visa prior to a court outcome. He states that he is not a risk to the Australian community as is evident by the fact that he was granted bail. He also states that the cancelling of his visa would have a significant financial and emotional impact on his family. He is the provider for his wife and [young] son.  

14. The delegate’s decision record indicates that the delegate gave careful consideration to the applicant’s response to the NOICC. The delegate found that there were grounds for cancelling the applicant’s visa under s.116(1)(e)(i) and that the applicant’s presence in Australia may present a risk to the safety of a segment of the Australian [community]. This finding was based on information before the delegate [of the offence].

15. The delegate then considered whether the applicant’s visa should be cancelled and after considering matters relevant to the exercise of the discretion found that the visa should be cancelled.

16. The applicant submitted to the Tribunal the written response he had provided in respect to the NOICC. He also gave oral evidence at a hearing before the Tribunal. In his oral evidence to the Tribunal the applicant indicated that he was [a professional] and had worked in a number of [countries]. He stated that he came to Australia on a [temporary] visa [and] following political unrest in Turkey he lodged an application for a protection visa.

17. In his oral evidence the applicant indicated that as a consequence of the cancelling of his Bridging Visa A and refusal of a Bridging Visa E he must remain in immigration detention. As such he is unable to work and thereby provide for his family and earn an income to cover legal costs he will incur in defending his matter in court.

18. Prior to his detention he worked in the evenings and cared for his [young] child during the day while his wife worked. Since his placement in immigration detention his wife has had to stop work as they have no family to assist with the care of their child. He stated that his detention means that he is separated from his family and that this imposes on them considerable emotional hardship.

19. He stated that his matter is scheduled for a court hearing [in] December 2018 but that the substantive hearing of his matter is not likely to occur before March 2019. He indicated that his bail conditions are [deleted] and that he has adhered to his bail conditions. He also stated that he had no intention of breaching his bail conditions but would like to be out of immigration detention where he could focus on the care of his child and prepare for his court case.

    FINDINGS AND REASONS

20. The task before the Tribunal is to satisfy itself as to whether the applicant 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 it.  For the reasons that follow the Tribunal is not satisfied that the applicant is or maybe, or would or might be a risk to the health, safety or good order of the Australian community or a segment of [it].

21. The Tribunal notes and accepts that the applicant has been charged with a criminal offence and that this offence is of a serious nature. As set out above the existence of this criminal charge and the serious nature of this charge led the delegate to find that the applicant may be a risk to the safety of a segment of the Australian community.

22. The existence of criminal charges is a relevant consideration as set out by Judge Smith in Gong v Minister for Immigration & Anor [2016] FCCA 561:

    What has occurred in the past can have a logical bearing on what might happen in the future. Thus, the fact that a person has engaged in certain conduct might affect the probability that he or she will engage in that conduct again in the future.

23. The existence of the criminal charge is to be considered in conjunction with other facts. These facts are that bail conditions were imposed on the applicant after he was charged. [Details deleted]. The applicant in his evidence to the Tribunal indicated that he had adhered to these conditions prior to his placement in immigration detention. The Tribunal has no reason to doubt this, and there is no evidence before the Tribunal to the contrary. The applicant in his oral evidence indicated that he would, if not in immigration detention, continue to adhere to his bail conditions. The applicant indicated that he has no criminal history in Australia or in any other country. He also indicated in his oral evidence to the Tribunal that he will be pleading not guilty to the charges. He claimed that there were a number of errors in statements made.

24. It was apparent to the Tribunal at the hearing that the applicant is very focused on proving his innocence in court.  He was keen to engage the services of a lawyer in preparation for his court case but was without income to do so, and unable to work to earn an income while in immigration detention. The applicant’s evidence in the hearing also indicated that he was very focused on his family and his need to provide them with financial support and provide care for his young child. He was cognisant of his family obligations and keen to fulfil them.

25. In sum, the bail conditions imposed on the applicant, the applicant’s acknowledgment of and adherence to them, his focus on proving his innocence through court processes and his concern for his family when considered collectively mitigate against the possibility that the applicant would engage in action that would or may put at risk the health, safety or good order of the Australian community or a segment of [it].

26. Accordingly the Tribunal is not satisfied that the applicant is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists.

    DECISION

27. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 010 (Bridging A) visa.

    Irene O'Connell
    Deputy Division Head