1832213 (Refugee)

[2019] AATA 6681

1832213 (Refugee) [2019] AATA 6681 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832213

COUNTRY OF REFERENCE:                   Iran

MEMBER:Meena Sripathy

DATE:6 December 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 785 (Temporary Protection) visa.

Statement made on 06 December 2019 at 3:17pm

CATCHWORDS

REFUGEE – protection visa – Iran – risk to health, safety or good order – criminal charge – no judgement or reasons available – evidence provided regarding conduct on remand – cancellation based on one charge – proclaimed innocence – outcome of criminal matter removed basis for cancellation – decision under review set aside   

LEGISLATION

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

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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 October 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant, born in [date], is an Iranian national. He arrived in Australia at Christmas Island [in] July 2012. On 6 March 2017 he was granted a Temporary Protection (class XD subclass 785) visa valid to 6 March 2020. On 2 March 2018 the applicant was issued a Notice of Intention to Consider Cancelation (NOICC) under s116(1)(e) of the Migration Act on the basis on information before it that the applicant was charged with importation of a commercial quantity of a border controlled drug. The applicant responded to the NOICC and after considering his response, the delegate cancelled the visa under s.116(1)(e)(i).

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal by video conference on 6 December 2019 to give evidence and present arguments. The Tribunal hearing was mostly conducted in English, however an interpreter in the Persian and English languages was present and assisted the Tribunal and applicant from time to time during the hearing.

5. 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

6. 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)(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.

   s.116(1)(e) - risk to Australian community or individual

7. 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].

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.

   Does the ground for cancellation exist?

9. At the time the NOICC was issued, in March 2018, the Department had before it information that the applicant was charged [in] February 2018 with the offence of “import commercial quantity of border controlled drug”.  He was refused bail and was remanded in custody. Further details of the circumstances relating to the charge in contained in a [State 1] Police Facts Sheet, a copy of which is included in the Department file. This document indicates the prohibited drug which was the subject of the charge was [a product], and the charge related to a consignment estimated to contain approximately [amount] kilograms of [product].  The Fact Sheet indicates that in an interview with police the applicant denied knowledge that the importation contained border controlled drugs and stated he was assisting a fellow countryman with his enterprise of importing [another product] from Iran because his friend had little English.

10. In his response to the NOICC submitted on 11 March 2018 the applicant maintained his innocence and stated that he was acting as an interpreter.  He intended to defend himself against the charges and that the grounds for cancellation do not exist because he is innocent until proven otherwise. After this matter is resolved he intends to continue to be an active member of the Australian community.

11. The delegate, after considering the applicant’s response to the NOICC, found that there are grounds for cancellation under s116(1)(e) on the basis of the charges against him, notwithstanding his intention to defend the matter and given the serious allegations made against him relating to a commercial quantity of a drug known to have health implications for those who use it. On this basis the delegate was satisfied, at that time, that the applicant’s presence in Australia may be a risk to the Australian community.

12. The delegate went on to consider whether the visa should be cancelled and was satisfied that the grounds for cancelling outweigh the grounds not to cancel the visa. 

    Evidence before the Tribunal

13. The applicant sought a review of the decision to this Tribunal.

14. The matter was originally set down for hearing on 28 May 2019.  At this time, the applicant’s solicitor in his criminal matter requested an adjournment until after October 2019 when the criminal trial would be completed, on the basis of the relevance to this matter of the decision of the jury about whether the allegation is proven.  As the applicant was remanded in custody until the trial, there was no disadvantage to him in adjourning the hearing, and no issue of him being released to the Australian community before the end of the trial.

15. The Tribunal agreed to postpone the hearing and it was rescheduled to 21 October 2019.

16. On 17 October 2019 the applicant contacted the Tribunal to advise that he was found not guilty and released from custody. He sought a further postponement of the hearing as he had been in custody for 20 months and requested time to seek advice.

17. The hearing was rescheduled to 6 December 2019.  On 3 December 2019 the applicant requested a further postponement of the hearing and also that the matter be reconstituted to the Tribunal in [State 2] as he was now living there. Given the time since the review to date, the Tribunal declined the applicant’s request as it did not consider a further delay in the matter was warranted. The applicant was advised the hearing would go ahead on 6 December and he was invited to provide evidence of the court order notice finding him not guilty of the offence with which he was charged.

18. At around 4pm on 5 December 2019 the Tribunal received an email from the [Organisation 1] advising that they are now representing the applicant and the following documents in support of his review:    

    a.Statutory Declaration of the applicant dated 5 December 2019

    b.Court Order Notice relating to matter [number deleted] dated [October] 2019 indicating the accused is discharged.

    c.Email correspondence between the [Organisation 1] and Legal Aid [State 1] confirming that they acted for the applicant in the above matter.  He pleaded not guilty and the jury returned a verdict of not guilty to the charge.  A screen shot of outcome from [State 1] JusticeLink was attached.

19. At the hearing the applicant gave the following evidence. He came to Australia in 2012, and was granted a Temporary Protection visa in 2017.  After his initial detention at [a location] he was brought to [City 1], [State 2] and stayed with the family of [Ms A], who is a [retired professional], introduced to him by Red Cross to provide an initial reception and induction into living in Australia. He stayed with her for about 3 months and from there found rental properties with other asylum seekers.  He later moved in with a girlfriend, and when that relationship ended he moved to [another city] for a period to stay with his uncle. He returned to [City 1] and then went to [City 2], about one and a half years before he was arrested.  He was living with another girlfriend at the time he was arrested, but she left him after that.  Since his release from custody in October 2019, he stayed in [City 2] for a few days and then his friends from [City 1] came and collected him and took him back to [City 1].  He has been struggling to obtain identity documents, sort out his immigration status and generally get his life in order since then and has encountered many difficulties.

20. The Tribunal asked why he was not taken into immigration detention following his release.  He said he thought he would be and after the jury verdict was handed down he was taken to the docks below for a couple of hours.  After that the correctional services people said they checked with Immigration and he was free to leave.  The applicant’s representative confirmed that she had also sought to clarify his status with the Department and they have referred to the need for a Ministerial intervention to lift the bar for him to make an application for a visa. It appears that he currently holds no visa, however the Department is aware of this but have taken no steps to detain him at this point in time.

21. The Tribunal asked about his criminal charge and trial that ensued. He was charged [in] February 2018 and taken into custody. He had no knowledge at that time of the criminal justice system and his rights. He maintained his innocence from the beginning. He was given a legal aid lawyer and they applied for bail but because he had no family, no one to provide a surety and the nature of the charge against him, he was unsuccessful in getting bail. He remained in custody until the trial, which was initially scheduled for [September] 2019.  However there were delays because his co-accused ended up pleading guilty to some charges in return for others to be withdrawn and their cases were separated.  The applicant’s case was heard before a jury, over 3 weeks.  Numerous persons gave evidence in support of him. The evidence included people who testified to his role helping others in the community with interpreting. The Tribunal asked if he has copies of any of the documents submitted in his criminal case, including witness statements.  The representative indicated that she has been in touch with the LAC lawyer who provided an email to confirm the criminal process that was completed and the outcome. She advised that there is no judgement or reasons issued in cases where the jury returns a Not Guilty verdict. The applicant said that his witnesses appeared in person and were cross examined by the prosecution. 

22. The Tribunal asked the applicant if, apart from this matter, he had any other interactions with the police or criminal justice system in Australia. He said some 6 or 7 years ago he had a drink driving charge.  He was fined $500 and had 2 months suspension on his licence.  The matter never went to court.  Following this he moved to [another state] and obtained a licence there which he continued to hold up until 2018.

23. The Tribunal asked if he had any issues or problems while on remand in custody from February 2018 to October 2019.  He said he did not.  He worked [in a position] and became the head [of this position]. He had the respect of fellow inmates as well as officers.  He tried his best to help his fellow inmates, and was involved in various activities to improve conditions for them and for future inmates. He gave examples of advocating for better conditions when children came to visit prisoners and running a multilingual library for inmates who spoke other languages. He tried hard to do good work and had no adverse issues while on remand.  The Tribunal asked if he had any letters or documents to support this, he said he did not but if necessary could try and obtain some evidence.

24. The Tribunal asked the applicant who [a person] was who he indicated could give evidence in support if necessary. He came to Australia at the same time as the applicant.  He came to the trial and gave evidence in support of the applicant.  [Ms A] is the [retired professional] who the applicant stayed with initially when he came to Australia. He has maintained contact with her over the years and visited her after his release. She could not give evidence in his criminal matter because she was unable to come to [City 2] at that time, but she could give evidence to the Tribunal if needed.

25. The Tribunal explained the issue to the applicant that it needs to consider if there are grounds to cancel his visa under s116(1)(e) as at the time of the Tribunal’s decision. The evidence he has now provided that he has been found not guilty by a jury of the criminal charge that triggered the cancellation is clearly significant and relevant new evidence. He has provided further oral evidence today about his background and circumstances, but no other supporting evidence.

26. The Tribunal invited the representative to make submissions.  She said that she could if necessary see what documents are on the LAC lawyer’s file to support the evidence he has given orally, but has already been told there is no judgement or reasons for decision in the criminal matter, other than the Court Order Notice provided. However, she submitted that it should not be necessary as the dismissal of charge should be sufficient to find the grounds for cancellation do not exist. The Department are aware the applicant has no visa at present yet do not appear to be concerned about the applicant remaining in the community at this time. The applicant has been consistent throughout the process maintaining his innocence and the nature of his involvement.  Apart from the one drink driving matter he referred to in his evidence he has nothing else adverse on his record. He has a job to go to as soon as his visa situation is resolved. He is well known and respected in his community and wants to continue to be helpful.

    CONSIDERATION

27. The Tribunal has considered the evidence before it, including the evidence provided to the Tribunal by the applicant orally and in writing. 

28. The Tribunal finds that the charges that formed the basis of the primary cancellation decision have been dismissed following a NOT GUILTY verdict by a jury. There is no evidence before the Tribunal of any outstanding charges or of any other conduct that may lead to charges or convictions. The Tribunal has considered that the applicant was charged with this offence, and was remanded in custody for over 20 months while the matter proceeded through the criminal justice system.  It notes his explanation for why bail was refused, being the nature of the charges and his lack of family or community ties and a person who could provide surety. Notwithstanding that he was refused bail, the Tribunal places greater weight on the dismissal of the charge following a jury trial and the applicant’s consistent proclamation of his innocence from the beginning, which was also indicated in the Police Fact Sheet.  The Tribunal also takes into consideration his evidence about his conduct while on remand, and absence of any other information that he is or may be a risk to the community.  

29. For all of these reasons, the Tribunal finds that there is no basis to conclude 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.

30. 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.

31. By way of observation, the Tribunal considers it is unfortunate that cancellation action was pursued in this matter on the basis of the laying of a charge alone and in circumstances where the applicant had no significant prior adverse criminal history, had pleaded his innocence and desire to defend the charges from the start and was in any event, remanded in custody pending the trial (and therefore unable to be of a risk to the Australian community).  Given the eventual outcome of the criminal matter, which had the effect of removing the basis for the original cancellation decision, an adverse final decision on the cancellation in this matter prior to the completion of the criminal justice process could have had grave and irreversible consequences for the applicant, including possible indefinite detention.  Alternatively, the power to cancel a visa can always be exercised, if appropriate and necessary, at the conclusion of the criminal justice process and it would seem that this would be the preferable order of events. 

    DECISION

32. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

    Meena Sripathy
    Member