1834254 (Refugee) - [2020] AATA 1930

1834254 (Refugee) [2020] AATA 1930 (13 February 2020)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834254
COUNTRY OF REFERENCE:                   Iran
MEMBER:Antoinette Younes
DATE OF DECISION:  13 February 2020
DATE CORRIGENDUM
SIGNED:19 February 2020
PLACE OF DECISION:  Sydney
AMENDMENTS:  The following corrections are made to the decision:
·The words ‘The standard in that section only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk’ at paragraph 40 should be replaced with ‘The standard in that section requires, amongst other things, that the applicant may or might be a risk and is not confined only to a present risk.’
·The words ‘s.116(1)(e) only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk’ at paragraph 50 should be replaced with ‘s.116(1)(e) requires, amongst other things, that the applicant may or might be a risk and is not confined only to a present risk.’
·The word ‘psychologist’s’ at paragraph 52 should be replaced with ‘psychologist.’

Antoinette Younes

Senior Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834254
COUNTRY OF REFERENCE:                   Iran
MEMBER:Antoinette Younes
DATE:13 February 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 13 February 2020 at 1:23pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – risk to the health or safety of a segment of the Australian community – sexual assault convictions – risk during custodial sentence – presumption of innocence – double jeopardy – mental health issues – continued fear of return to Iran – impact on family relationships – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 46, 48, 116
Migration Regulations 1994, Schedule 2
CASES
Gong v MIBP [2016] FCCA 561
Ibrahim v MHA [2019] FCAFC 89
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

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

This is an application for review of a decision dated 21 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) on the basis that 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; or the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and…

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 1834254 (Refugee)

Details

AGLC: 1834254 (Refugee) [2020] AATA 1930
Case: [2020] AATA 1930
Decision Date: 13 February 2020

CaseChat Overview and Summary

This matter concerned an application by a visa holder, who had arrived in Australia in 2012 and was granted a Safe Haven Enterprise visa in 2017 due to fears of persecution in Iran, to review the cancellation of his visa. The cancellation was based on the delegate’s satisfaction that the applicant’s presence in Australia posed a risk to the safety of a segment of the Australian community, specifically women, following allegations of sexual assault in December 2017, for which he was arrested and charged in July 2018. The applicant maintained his fear of returning to Iran and argued that visa cancellation would amount to double jeopardy.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed, and if so, whether the applicant's visa should be cancelled as a matter of discretion. Section 116(1)(e) permits visa cancellation if the Minister is satisfied that the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community or a segment thereof, or to the health or safety of an individual. The Tribunal also had to consider the applicant's submissions regarding the punitive nature of cancellation and the principle of double jeopardy.

The Tribunal found that the ground for cancellation under section 116(1)(e)(i) was established, being satisfied that the applicant's presence in Australia posed a risk to the safety of a segment of the Australian community. The Tribunal rejected the submission that cancellation amounted to double jeopardy, distinguishing administrative cancellation powers from criminal proceedings and emphasising that cancellation's purpose is community protection, not punishment. While acknowledging factors in the applicant's favour, such as his compelling need to remain in Australia due to fear of return and plans for a family, and his compliance with visa conditions, the Tribunal concluded that, on balance, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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]. BACKGROUND The applicant arrived in Australia [in] September 2012, having left Iran [in] August 2012. On 2 March 2017, the applicant was granted a Safe Haven Enterprise (Subclass 790) visa) on the basis that he feared returning to Iran as he would be killed by the Basij (an Iranian paramilitary group) and other agents of the Iranian authorities. The delegate’s cancellation decision record, a copy of which the applicant provided to the Tribunal has a summary of the events that led to the cancellation of the applicant’s visa. In the course of the hearing, the Tribunal discussed with the applicant relevant information contained in the delegate’s decision record namely that:i) The Department received information that the applicant had allegedly engaged in non-consensual sexual intercourse and had committed unwanted sexual acts against a woman in the Australian community whom he had met via an online dating website. The information indicates that [in] July 2018, the [Police] arrested and charged the applicant with the offences of “Sexual intercourse without consent… Assault with act of indecency”. ii) Police information indicates that the alleged offences occurred [in] December 2017 when the applicant met the alleged victim in person after having conversations with her using an online dating website. On [that day in] December 2017 at the alleged victim’s residence, the applicant is alleged to have engaged in intimate physical contact and continued to do so despite the alleged victim’s request to stop. The applicant allegedly stopped his actions when the alleged victim’s housemate entered into the room. The alleged victim reported the incident to the police and the applicant was subsequently arrested on [in] July 2018. The delegate concluded that the applicant’s alleged conduct indicated that his continued presence in Australia may pose a risk to the safety of a segment of the Australian community, namely women and accordingly the delegate decided that the ground for cancellation existed. Upon consideration of all the relevant discretionary grounds, the delegate decided that the applicant’s visa should be cancelled. The Departmental file contains a [Police] Facts Sheet in relation to the incident of [July] 2018. The Tribunal notes that the delegate’s summary is consistent with the information contained in the Facts Sheet.Notice of Intention to consider Cancellation (NOITCC) On 5 October 2018, the Department sent to the applicant a NOITCC setting out the grounds for consideration of cancellation.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. Relevant 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.Does the ground for cancellation exist?s.116(1)(e) - risk to Australian community or individual 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]. BACKGROUND The applicant arrived in Australia [in] September 2012, having left Iran [in] August 2012. On 2 March 2017, the applicant was granted a Safe Haven Enterprise (Subclass 790) visa) on the basis that he feared returning to Iran as he would be killed by the Basij (an Iranian paramilitary group) and other agents of the Iranian authorities. The delegate’s cancellation decision record, a copy of which the applicant provided to the Tribunal has a summary of the events that led to the cancellation of the applicant’s visa. In the course of the hearing, the Tribunal discussed with the applicant relevant information contained in the delegate’s decision record namely that:i) The Department received information that the applicant had allegedly engaged in non-consensual sexual intercourse and had committed unwanted sexual acts against a woman in the Australian community whom he had met via an online dating website. The information indicates that [in] July 2018, the [Police] arrested and charged the applicant with the offences of “Sexual intercourse without consent… Assault with act of indecency”. ii) Police information indicates that the alleged offences occurred [in] December 2017 when the applicant met the alleged victim in person after having conversations with her using an online dating website. On [that day in] December 2017 at the alleged victim’s residence, the applicant is alleged to have engaged in intimate physical contact and continued to do so despite the alleged victim’s request to stop. The applicant allegedly stopped his actions when the alleged victim’s housemate entered into the room. The alleged victim reported the incident to the police and the applicant was subsequently arrested on [in] July 2018.

Decision

Reasons for decision

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. On the evidence, the Tribunal is 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, and consequently the ground under s.116(1)(e)(i) exists. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that on balance, the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

On the evidence, the Tribunal is 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, and consequently the ground under 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 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 The applicant came to Australia as an unauthorised maritime arrival seeking Australia’s protection. The applicant’s claims for protection were assessed and a delegate decided that the applicant engaged Australia’s protection obligations. On 2 March 2017, he was granted a Safe Haven Enterprise subclass 790 visa based on those findings. This is a temporary visa, due to expire on 2 March 2022. The applicant maintains that he continues to fear harm at the hands of the Iranian authorities and that he continues to seek Australia’s protection. The Tribunal accepts that the applicant was granted the visa on a determination that he engaged Australia’s protection obligations. The Tribunal gives regard to the applicant’s claimed continued fear of returning to Iran and that there is a compelling need for him to remain in Australia. Currently, the applicant is serving a term of imprisonment in Australia as a consequence of the convictions. The Tribunal is satisfied that the applicant’s travel and stay in Australia are consistent with the objectives of the visa which he was granted. The Tribunal also gives weight in the applicant’s favour in relation to the plans to have children with his current partner, [Ms A], which is also a compelling reason. The Tribunal gives this consideration weight in the applicant’s favour.·the extent of compliance with visa conditions There is no evidence before the Tribunal of non-compliance with visa conditions on the part of the applicant. The Tribunal gives this aspect weight in favour of the applicant.·degree of hardship that may be caused (financial, psychological, emotional or other hardship) In submissions, the representative expressed the opinion that although the cancellation process is not intended to be punitive, an unfavourable outcome is punitive and could amount to double-jeopardy. He argued that an unfavourable outcome in this case is disproportionate as the applicant has already been punished through the conviction and sentencing. The Tribunal does not wish to take those comments out of their context and the Tribunal acknowledges the representative’s concession that although the cancellation process is not intended to be punitive, there is a punitive or an unfavourable outcome. The contention that cancellation could amount to double-jeopardy is a moot point and academic opinions might differ. In the Tribunal’s view, the implicit analogy between cancellation and the doctrine of double-jeopardy is not well-founded; the purpose of cancellation is not punitive but essentially aimed at the protection of the Australia community. Cancellation has broader implications beyond the personal interests of an applicant. The doctrine of double-jeopardy is related to a specific criminal procedure, arguably unrelated to administrative law. The Tribunal in a case such as this can consider any relevant material. In the Tribunal’s opinion, taking into account the convictions in assessing cancellation and its consequences does not amount to double-jeopardy. The legislation sets out the parameters; s.116(1)(e) only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk. To elevate the legal test and bring into the cancellation decision-making doctrines such as the doctrine of double-jeopardy is not persuasive. Cancellation is intended by the legislature if there are grounds such as those under s.116(1)(e). The Tribunal does not give weight to those submissions in the applicant’s favour.