1902155 (Migration)

[2019] AATA 3604

1902155 (Migration) [2019] AATA 3604 (9 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1902155

MEMBER:Louise Nicholls

DATE:9 July 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 010 (Bridging A) visa.

Statement made on 09 July 2019 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – ground for cancellation – risk to safety of Australian community or individual – two assault charges – both charges dismissed – application for apprehended violence order dismissed – 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 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Nigeria and he is [age] years of age. He arrived in Australia [in] November 2015 as the holder of a [student] visa which was due to cease on 8 January 2017. On 28 October 2016 he applied for a protection visa whilst still the holder of a student visa. He was granted an associated Subclass 010 (Bridging A) visa on 1 November 2016.

2. On 9 January 2019 the applicant was issued with a Notice of Intention to Consider Cancellation under s.116 of the Act as a result of assault charges made against the applicant in December 2018. The applicant responded by providing a letter prepared by the solicitor representing the applicant in the assault proceedings.

3. On 23 January 2019 a delegate of the Minister for Home Affairs cancelled the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act). The delegate cancelled the visa under s.116(1)(e)(ii) on the basis that he may pose a risk to the safety of an individual in the Australian community.

4. This is an application for review of that decision.

5. The applicant appeared before the Tribunal on 8 July 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The applicant gave evidence about his background and the grounds for cancellation. He provided three documents at the hearing, that is, a copy of the orders made by the [Local Court in] May 2019 and copies of two emails sent by the alleged victim of the assault to the applicant on 14 December 2018 and 19 February 2019.

6. 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

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

8. 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) 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.

   Background

9. The applicant gave evidence that he is [age] years of age and was born in Nigeria. He stated he previously lived in Lagos, Nigeria and that his father has passed away but that his mother and [sibling] are living in Abuja[1], Nigeria.

   [1] Abuja, city, capital of Nigeria >

   The applicant claimed he went to school in Lagos, Abuja and Delta State. After the applicant left school he worked as a [Occupation 1] in Abuja.

10. When asked about his ethnicity he appeared quite hesitant and asked the Tribunal to explain the question. The Tribunal noted that there are over 250 different ethnic groups in Nigeria but that the main ethnic groups were the Igbo, Yoruba and Hausa Fulani. He claimed he was from the Calabar ethnic group and came from Akwaibom State. When asked he could not tell the Tribunal how far Akwaibom State was from Lagos.

11. The country information indicates that Calabar is the capital of Cross Rivers State and that Akwaibom State lies next to Cross Rivers State[2]. The applicant appeared to be somewhat unsure about his birthplace and ethnicity.

    [2] >

    The applicant first arrived in Australia [in] November 2015 travelling on a student visa and completed a [qualification] in Sydney before applying for a protection visa on 28 October 2016. He was granted an associated bridging visa on 1 November 2016.

    Does the ground for cancellation exist?

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

12. 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].

13. 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.

14. On 9 January 2019 the applicant was issued with a Notice of Intention to Consider Cancellation under s.116 of the Act. That notice advised the applicant that the delegate was considering cancelling his bridging visa as he had been charged with common assault (Domestic Violence) and assault occasioning actual bodily harm (Domestic Violence) [in] December 2018. The delegate advised that, on the information before him, it appeared that the applicant had allegedly engaged in violent behaviour which indicated that he posed a risk to the safety of an individual in the Australian community, that is, the alleged victim.

15. On 12 January 2019 the applicant’s criminal solicitor wrote to the delegate advising that the applicant accepted he had been charged with the offences referred to in the notice but that the applicant denied the charges against him and intended to plead not guilty to the offences.

16. Further he submitted that the applicant has not come to the notice of NSW Police in relation to any other incident since he had arrived in Australia. He submitted that a decision on cancellation should be delayed until the matter had been finalised before a court.

17. On 23 January 2019 the delegate proceeded to cancel the applicant’s bridging visa after taking into account the material before him including submissions made by the applicant’s solicitor.

18. Referring to the NSW Police Facts Sheets the delegate noted the details of the circumstances which gave rise to the two assault charges.

19. The facts sheet alleged that the applicant was in an on/off intimate relationship with the alleged victim for about ten months and that the victim spent a number of nights at the applicant’s home during that time. It was also alleged that the applicant had a girlfriend and the alleged victim was married at the time of their relationship. The alleged victim told her husband about the affair and her husband contacted the applicant and they subsequently made friends.

20. It was alleged that on 30 November 2018 the applicant and alleged victim met in the applicant’s car and she told the applicant she could not continue the affair. After this the applicant and alleged victim had an altercation which resulted in witnesses calling police. The alleged victim sustained injuries to her head and was taken to [Hospital 1]. The applicant was bitten on the right arm during the incident. Police arrived and observed the alleged victim’s injuries and later charged the applicant with assault and assault occasioning actual bodily harm.

21. At the Tribunal hearing the applicant was asked about the incident which gave rise to the assault charges. He denied the account of events set out in the facts sheets and stated that he and the alleged victim were just good friends but that she fell in love with him. He rejected her and she became upset.

22. He stated that the charges against him had been dismissed and he had been found not guilty to both charges and the application for an apprehended domestic violence order was also dismissed. He provided a copy of the orders made on 27 May 2019 by the [Local Court] to that effect.

23. He also provided copies of two emails from the alleged victim sent in December 2018 and February 2019. Those emails suggested that the alleged victim was apologetic for what had happened and commended the applicant for being a wonderful person. She stated she was sorry that the memories they made are tainted with sadness, sorry that she did not leave him alone and sorry that she hurt him and there “would never be an us again”.

24. In her second email she again apologised and told the applicant she tried to retract her statement but was unsuccessful with her attempts. She claimed she was threatened and intimidated by officers and felt they did not want to hear the truth. She acknowledged that he had never threatened, intimidated or hit her. She regretted that all of that love she felt was destroyed by the ugliness she experienced towards the end.

25. The applicant’s representative stated that the alleged victim declined to give evidence against the applicant at the hearing of the criminal charges in May 2019 but the prosecution asked the court to proceed on the material before it. This included the video statements made by the applicant and the alleged victim and witness statements. After considering that material the court found that the applicant was not guilty of the charges.

26. The delegate found that that applicant was a risk to an individual in the Australian community, that is, the alleged victim of the assault. At the time of the cancellation decision the only material before the delegate were the charge sheets, NSW Police Fact Sheets and the letter from the applicant’s criminal solicitor.

27. However, the applicant now has provided evidence that he has been found not guilty and the charges have been dismissed. Further the application for the apprehended violence order has been dismissed and it appears that the alleged victim has not pursued any action against the applicant and has taken some responsibility for the incident from which the charges arose. The emails from the alleged victim have a sad and pleading tone and it appears that the alleged victim wants to keep contact or at least be remembered fondly by the applicant.

28. The Tribunal considers that this evidence indicates the applicant is not a risk to the health or safety of the alleged victim. Further there is no other evidence before the Tribunal that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of the alleged victim.

29. In these circumstances, the Tribunal is not 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.

30. 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

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

    Louise Nicholls
    Senior Member