1832339 (Migration) - [2019] AATA 3142

1832339 (Migration) [2019] AATA 3142 (1 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1832339
MEMBER:Tigiilagi Eteuati
DATE:1 April 2019
PLACE OF DECISION: Brisbane
DECISION:The decision under review is affirmed.
Statement made on 01 April 2019 at 7:11pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) – Subclass 457 Temporary Business Entry (Class UC) – risk to the health, safety or good order of the Australian community – convicted of offences – wife’s miscarriage – psychologists’ reports of low chance of re-offending – risk is not insignificant and presents a real risk – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(i), 359A, 499, 501CA
Migration Regulations 1994, Schedule 2, r 2.43

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 October 2018 to cancel the Applicant’s Subclass 457 Temporary Business Entry (Class UC) visa under section 116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under section 116(1)(e)(i) of the Act on the basis that the delegate was satisfied that the presence of the Applicant 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. 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 31 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s wife and from two psychologists who provided reports supporting the Applicant.
The Applicant was represented in relation to the review by his registered migration [agent]. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal finds that the Minister’s delegate’s decision, to cancel the Applicant’s visa, is the correct decision. Therefore, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under section 116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in section 116(1)(e)(i) 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.
The Tribunal has carefully considered all of the relevant information on the Department and Tribunal files including the submissions and documents provided to the Tribunal by the Applicant, including the documents provided to the Tribunal after the hearing. On 22…

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 1832339 (Migration)

Details

AGLC: 1832339 (Migration) [2019] AATA 3142
Case: [2019] AATA 3142
Decision Date: 1 April 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision by the Minister's delegate to cancel the visa of an applicant who had been convicted of various offences. The applicant, who held a Temporary Business Entry (Class UC) Subclass 457 visa, sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth) was made out. This required the Tribunal to determine if the applicant's presence in Australia posed, or might pose, a risk to the health, safety, or good order of the Australian community or a segment of it. The Tribunal also had to consider whether, having found a ground for cancellation, the visa should be cancelled, taking into account all relevant circumstances.

The Tribunal affirmed the delegate's decision, finding that the applicant's convictions in October 2018 for numerous counts of observations or recordings in breach of privacy, including filming women in toilet and changing room facilities, established a risk to the health, safety, or good order of the Australian community. While acknowledging evidence presented by the applicant, including psychologists' reports suggesting a low chance of re-offending and a wife's miscarriage, the Tribunal concluded that these factors did not negate the "not insignificant" and "real risk" posed by the applicant's conduct. The Tribunal found the delegate's decision to cancel the visa to be correct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal finds that the Minister’s delegate’s decision, to cancel the Applicant’s visa, is the correct decision. Therefore, the Tribunal has concluded that the decision to cancel the Applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Under section 116 of the Act, the Minister may cancel a visa if he is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in section 116(1)(e)(i) 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. The Tribunal has carefully considered all of the relevant information on the Department and Tribunal files including the submissions and documents provided to the Tribunal by the Applicant, including the documents provided to the Tribunal after the hearing. On 22 March 2019, the Tribunal sent a letter to the Applicant attaching further material, to which the Applicant may not have had access, and for which the Tribunal indicated that it did not intend to rely. Notwithstanding this, that information was provided to the Applicant to allow him every opportunity to respond to the material if he so wished. The Applicant responded to that letter on 29 March 2019. The Tribunal has not relied on any of this material.Does the ground for cancellation exist? A visa may be cancelled under section 116(1)(e) of the Act if the Minister or the Tribunal 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. As mentioned above, in the present case, the delegate was satisfied that the presence of the Applicant 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. In the current case the delegate based his decision to cancel on the various crimes the Applicant was convicted of, and sentenced for, [in] October 2018. The Tribunal sought information as to the Applicant’s criminal history from [State 1] Police. The documentation returned from [State 1] Police included a [State 1] Court Outcomes document for the Applicant and Court Briefs containing the facts alleged by the police against the Applicant for his crimes. This information was provided to the Applicant prior to the hearing. The Applicant provided the Tribunal with a copy of the sentencing magistrate’s remarks of [date] October 2018. The Applicant also provided the Tribunal with a [State 1] Police Service Court Brief and with the Minister's delegate’s decision cancelling his visa. The Applicant’s offences were helpfully summarised by the Applicant in his written contentions as follows:·[In] October 2018, the Applicant was convicted of 36 counts of observations or recordings in breach of privacy – anal or genital region and sentenced to 6 months imprisonment which was wholly suspended for two years. From the Applicant’s contentions and the sentencing remarks it is clear that these offences occurred between [December] 2017 and [June] 2018 and related to the Applicant filming fellow workmates and other adult females using the toilet facilities at his place of work.·[In] October 2018, the Applicant was convicted of 13 counts of observations or recordings in breach of privacy and four counts of observations or recordings in breach of privacy anal or genital region and sentenced to a two-year probation period. From the Applicant’s contentions and the sentencing remarks it is clear that these offences occurred between [April] 2018 and [May] 2018 and related to the Applicant filming adult woman in changing rooms at a retail store.·[In] October 2018, the Applicant was convicted of two counts of possession of tainted property, a conviction was recorded but no further punishment was given.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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