1906827 (Refugee)

[2019] AATA 6692

1906827 (Refugee) [2019] AATA 6692 (18 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1906827

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Peter Vlahos

DATE:18 December 2019

PLACE OF DECISION:  Melbourne

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 18 December 2019 at 7:31am

CATCHWORDS

REFUGEE – cancellation – protection visa – Sri Lanka – risk to the health, safety or good order of the Australian community – grounds for cancellation upon review – applicant charged and remanded for serious offences – charges set aside and struck out – decision under review set aside

LEGISLATION

Migration Act 1958, s 116

CASES

Gong v MIBP [2016] FCCA 561
Krummrey v MIAC (2005) 147 FCR 557
Shi v MARA (2008) 235 CLR 286
SZBEL v MIMIA (2006) 228 CLR 152
Tien v MIMA (1998) 89 FCR 80
Wen Bi Dai v MIAC (2007) 165 FCR 458
Zhang v MIAC [2007] FMCA 1855

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 12 March 2019 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 delegate cancelled the visa under s.116(1)(e)(i) on the basis that the delegate was satisfied 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. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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.

   Does the ground for cancellation exist?

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

6. 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].

7. 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.

8. The applicant, [named], a Sri Lankan national was granted a Temporary Protection visa (subclass 785) [in] December 2016. His Temporary Protection visa expired [in] December 2019. The Department of Home Affairs subsequently received information that [in] October 2018 the applicant had been charged and remanded for the following offences:

   §Abduction /detain person for sexual purpose

   §False Imprisonment

   §Assault with intent to commit a sexual offence

   §Sexual Assault

   §Sexual Assault by Compelling Touching

9. As a result by a Notice of Intention to Consider Cancellation (NOICC) dated 12 March 2019 the applicant was informed by the Department of Home Affairs that as he had been charged of offences against the laws of the State his visa may be cancelled in accordance with s.116(1)(e) of the Act. Accordingly the Department invited the applicant to make any comment on the grounds for cancellation and to give reasons as to why his visa should not be cancelled.

10. By letter dated 1 March 2019 the applicant through his register migration agents and Solicitors advised the Department of the applicant’s reasons as to why his Protection visa should not be cancelled and indicated that the charges against the applicant would be the subject of a Notice of Appeal which would be filed with [Court 1].

11. Nevertheless, by Notification of Cancellation under section 116 of the Act dated 12 March 2019 the Department advised the applicant that having taken into account his responses to the NOICC his visa was cancelled under paragraph 116(1)(e) of the Act. The Department did not consider any other ground under s.116 of the Act in cancelling the applicant’s visa.

12. On 16 December 2019 [a named judge] of [Court 1] made orders setting aside and striking out all charges against the applicant.

13. When considering a decision to cancel a visa under s.116, it is not open to the Tribunal on review to consider if a visa could have been cancelled under a different power (for example s.109 of the Act). However, the Tribunal is not limited to the particular issues considered by the delegate.[1] For example, it has been held that on the review of a decision to cancel a visa under s.116(1)(b) for breach of condition 8202(3)(a)[2] it was open to the Tribunal to affirm the decision on the basis of breach of condition 8202(3)(b).[3] The Court rejected the contention that the Tribunal was limited to the issues that had been raised in the s.119 notice of proposed cancellation.[4]

    [1] SZBEL v MIMIA (2006) 228 CLR 152.

    [2] (80% attendance requirement)

    [3] (academic result)

    [4] Zhang v MIAC [2007] FMCA 1855 (Cameron FM, 25 September 2007) at [16]-[18]. Note that the discussion of condition 8202(3)(b) is no longer reliable in light of the Full Court’s decision in Wen Bi Dai v MIAC (2007) 165 FCR 458.

14. In Krummrey v MIAC[5] the grounds for cancellation considered by both the delegate and the Tribunal were those in s.116(1)(a) and (b). However, the Full Federal Court accepted that it would (theoretically) have been open to the delegate, and on review the Tribunal, to have considered cancelling the visa in pursuant to s.116(1)(g) and r.2.43(1)(i). Their Honours observed that neither the delegate nor the Tribunal gave any consideration to those provisions and that it could not be known whether the Tribunal would have exercised its discretion to cancel in reliance on s.116(1)(g) in the same way as it purported to exercise its discretion under s.116(1)(a). The Court rejected the submission that the Tribunal was to be understood to have unwittingly exercised jurisdiction to which it did not direct its attention. It was not suggested that the Tribunal could not consider s.116 (1)(g) because the delegate did not do so and that issue was not expressly considered. Therefore, it appears that the Tribunal is not limited to the particular ground or grounds considered by the delegate, and/or those described in the s.119 notice.

    [5] (2005) 147 FCR 557.

15. A related issue is whether the Tribunal, when considering whether a ground for cancellation exists, is limited to consideration of the facts and circumstances as they existed at the time of the primary decision, or whether it is obliged to consider the facts and circumstances at the time of its own decision. As a general rule, unless there is some temporal element in the relevant legislation that confines the Tribunal’s consideration to the circumstances as they existed at the time of the primary decision, information about subsequent conduct and events will be relevant. To determine whether there is a temporal element of that kind, the precise nature of the decision under review must be closely considered.[6] In the case of cancellation decisions under s.116, the relevant time at which the facts are to be assessed on the review may depend on the precise terms upon which the visa was cancelled.

    [6] See Shi v MARA (2008) 235 CLR 286.

16. In this case, the applicant’s visa was cancelled under s.116 (1)(e) on the basis of serious charges having been made against him by the [Police] [in] October 2018. These charges were the subject of an appeal to the [Court 1], by which set aside and all charges stuck out, were made after the Department’s decision. The fact that the orders on appeal are central to the Departments decision to cancel the applicant’s visa, the relevant time for considering whether a ground for cancellation exists is at the time of the Tribunal’s own decision.

17. While it appears to be open to the Tribunal to exercise its discretion to consider an alternative ground under s.116 of the Act, in circumstances these charges were considered by [Court 1] and were set aside and all charges stuck out there are no other relevant grounds upon which the Tribunal can consider under s.116 by which the visa may be cancelled.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) does not exist and as such the power to cancel the applicant’s visa does not arise. Accordingly, Tribunal concludes that the visa should not be cancelled

19. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Peter Vlahos
    Member