1907644 (Migration)

[2019] AATA 2546

1907644 (Migration) [2019] AATA 2546 (15 April 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1907644

MEMBER:Louise Nicholls

DATE:15 April 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 15 April 2019 at 2:02pm

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to health, safety or good order – domestic assault – criminal charges – applicant on bail awaiting trial – passport surrendered – no history of criminal conduct or violence – no breach of bail conditions or AVO – no evidence to support finding that applicant is a risk – 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 378 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 France and is 22 years of age. He arrived in Australia as the holder of a Working Holiday visa (Subclass 417) on 30 January 2018. He lodged an application for an extension of his working holiday visa on 13 January 2019 and was granted an associated Bridging Visa A on that date.

2. On 29 March 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).

3. The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the applicant’s presence in Australia is a risk to the health and safety of an individual, [Ms A].

4. This is an application for review of that decision and it was made on 30 March 2019. The applicant provided a copy of the delegate’s decision and his own written submissions.

5. The applicant appeared before the Tribunal on 9 April 2019 to give evidence and present arguments. The applicant gave evidence about his background, the grounds for cancellation and other matters relevant to the cancellation. The applicant indicated that he could provide some documents to support his application but he did not have them with him at the Tribunal hearing. Accordingly the Tribunal extended the time for finalisation to allow the applicant further time to provide copies of those documents.

6. The applicant presented as a very shy, nervous and quietly spoken young man. He gave his evidence in a straightforward manner and the Tribunal found him to be a credible witness.

7. On 9 April 2019 the applicant provided copies of the following documents;

   ·Bail Acknowledgment and Security Agreement-14 January 2019.

   ·Listing information for application for Apprehended Violence Order-14 January 2019.

   ·Change of Shared Tenancy Agreement and Lease Addendum (Little Real Estate).

   ·Letter of support from the applicant’s cousin-9 April 2019.

   ·Fixed term agreement for employment in software development and consulting-8 October 2018.

   ·History of employment with in IT programming with [Business 1]-25 September 2018.

8. On 10 April 2019 the applicant sent the Tribunal the details of the solicitor acting for him in relation to criminal charges in the Local Court. He also advised that his solicitor would not provide written advice to the Tribunal until the applicant made arrangements to pay outstanding and anticipated legal costs.

9. 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

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

11. 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). 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?

    Is the applicant a 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. At the hearing held on 9 April 2019 the Tribunal explained to the applicant his right to invoke the privilege against self-incrimination. It explained to the applicant that, as charges were still pending against him, he had the right to refuse to answer any question if the answer would tend to incriminate him. It explained that if he chose to answer questions on these matters his answers could be used in criminal or other proceedings.

    Background

15. The applicant is 22 years old and was born in [Country 1]. When he was about six years old he and his family moved to France to live and he has lived most of his life in France and is a French citizen. His parents, brother and sister live in Paris. His father is a taxi driver and his mother works in a kindergarten; his siblings are still at school.

16. He attended high school in Paris and after he left school found work in the IT industry. He is a self-taught IT programmer and worked in that industry until he travelled to Australia on a working holiday visa in January 2018.

17. During the first year of his working holiday visa he did a number of things; he worked as a delivery driver, he toured around Queensland, he travelled back to France for about 6 weeks and when he returned he found work at [Business 1] as an IT programmer. He explained that [Business 1] has a number of different websites where they promote products and he was working on a number of projects from October to December 2018.

18. He was originally intending to apply for an extension of his working holiday visa for a further 12 months but in January 2019 changed his mind and decided to return to France. However, before he withdrew his application he was charged with two criminal offences and he did not want to leave until those matters were resolved.

19. Further when he was charged he was granted bail on condition that he surrenders his passport and agrees to remain in Australia until the charges are concluded.

    Is the applicant a risk to the health and safety of an individual?

20. The delegate found that there grounds for cancellation on the basis that the applicant was allegedly engaged in violent behaviour towards his former partner, [Ms A]. As a result of this behaviour he was charged with two offences on 14 January 2019, that is;

    ·Assault occasioning actual bodily harm-T2 s.59(1) of the Crimes Act (NSW) 1900.

    ·Aggravated Break and Enter and commit serious indictable offence inflict actual bodily harm-s.112(2) of the Crimes Act (NSW) 1900.

21. The NSW Police facts sheet sets out the circumstances leading up the charges based on [Ms A]’s statement.

22. The facts sheet states that the applicant and [Ms A] were in an intimate relationship from April 2018 to December 2018. The applicant told the Tribunal that the couple met in April 2018 and at first they had a casual relationship. After he returned from France in about August 2018 the relationship became serious and they looked for a place to move in together. They found an apartment in Bondi Junction and he had continued to live in that apartment after the couple separated. He explained that [Ms A] was in Australia on a student visa studying computer programming.

23. The facts sheet stated that they separated in December 2018 but kept in touch because they had mutual friends. The applicant told the Tribunal that in December 2018 the relationship was not working and they separated but he explained they remained friends and kept talking to each other from time to time. [Ms A] moved out of the shared Bondi Junction apartment in December 2018 and the applicant took over responsibility for the lease.

24. A description of the incident which led to the applicant’s arrest is set out in the NSW Police facts sheet. The delegate has extracted some of the relevant facts, but not all. The applicant has also given oral evidence on the circumstances leading to the charges.

25. As set out in the facts sheet the applicant and [Ms A] were both at the S.A.S.H nightclub on 13 January 2019. The applicant is alleged to have pulled [Ms A]’s hair to get her attention and she became angry resulting in an altercation between the applicant and [Ms A]. The security guards escorted the applicant out of the club.

26. The applicant essentially agrees with this; he stated he tried to get [Ms A]’s attention while she was on the dance floor and she did not appear to hear him. She had her back to him so he lightly pulled her hair but she became very angry and they had an argument. He agrees that he should not have pulled her hair. The security guards escorted him outside the club.

27. The delegate’s decision notes that it is then alleged that [Ms A] then returned to her residence while ignoring the applicant’s phone calls and text messages. Later that morning it is alleged that the applicant arrived at [Ms A]’s residence and forced entry into her bedroom. Upon entering her bedroom he allegedly grabbed her hands and arms and held her down on the bed and started striking [Ms A] around the face and head.

28. The delegate states that the police information indicates that [Ms A] managed to escape and ran towards her bedroom window crying for help. The applicant allegedly grabbed the back of her shirt, pulled her back onto the bed holding her down while she continued to cry for help. A short time later police attended the premises where the applicant was placed under arrest.

29. [Ms A] was taken to hospital where her injuries were assessed. It is alleged she had a cut to her upper left lip and bruising to her neck and face area.

30. However, the facts sheet set out some intervening matters which took place between the applicant’s removal from the club and his arrival at the applicant’s home and which are not included in the delegate’s decision record.

31. The facts sheet notes that whilst outside the club, the applicant continued to text and phone [Ms A] asking her to come downstairs to talk to him. The applicant’s friends also asked her to go and talk to the applicant but she was still angry with him and refused. However a short time later [Ms A] decided to go downstairs and talk to the applicant to see if he had calmed down. The applicant was still angry and asked [Ms A] why her friend was touching her on the dance floor.

32. The applicant and [Ms A] appeared to be arguing and not getting anywhere so [Ms A] took the applicant’s wallet so he would come with her. She kept asking him to “chill”. The applicant did not go with [Ms A] so she got into a taxi and went home.

33. Once she arrived home the applicant continually tried to call her and text her asking her where she was, so she blocked his number locked her bedroom door got into bed and went to sleep. About one hour later the applicant went to [Ms A]’s address and walked inside the premises through the unsecured main entrance and up the stairs to the applicant’s bedroom. The applicant awoke to the sound of someone trying to gain access.

34. A short time later [Ms A] heard someone trying to open her bedroom door and the applicant walked in and said “Give me my wallet”. [Ms A] said “It is on the shelf leave now”.

35. According to the facts sheet the applicant got onto the victims bed and pinned her down by leaning above her placing his hands on her hands and forearms. The applicant started hitting her around the face and head area and [Ms A] said “If you don’t leave, I will scream, I will call the police.” [Ms A] scratched the applicant’s face to defend herself and attempted to get out of his grip. She continued to scream and he tried to cover her mouth with her hands. The applicant allegedly said “If you start screaming I will hit you even more”. [Ms A] kept yelling and the applicant told the victim told her to calm down as he wanted to talk to her. She stated “I don’t want to talk to you, you just beat me up. Take your wallet and leave”. [Ms A] broke free of him and reached towards her window and started to yell out for help. The applicant grabbed the back of her shirt and pulled her back onto the bed pinning her down. She continued to yell for help. [Ms A] tried to get away by attempting to get out of the bedroom door but the applicant stood in front of her.

36. A short time later police arrived and entered the bedroom and the applicant was arrested and searched before being taken to Maroubra Police Station. [Ms A] was taken to hospital for assessment of her injuries which consisted of a left cut lip and bruising to her face and neck area. She was discharged a short time later and participated in a domestic violence video recording.

37. The applicant was interviewed by police and he admitted to being at the nightclub and pulling [Ms A]’s hair but stated he just wanted to get her attention. He admitted that he walked into the main door of her premises and knew the lock was faulty on the bedroom door and once inside [Ms A]’s bedroom he admitted to pinning her down on the bed by placing his legs on the right-hand side of the victim and leaning over her and holding her hands down. He agreed that [Ms A] asked him to leave a number of times but he remained as he tried to calm her down to talk to her. He also admitted he pulled her back from the window by her shirt as she was yelling for help and pinned her down on the bed.

38. In oral evidence given to the Tribunal the applicant stated that after he had an argument with the applicant in the nightclub he was escorted outside by the security guards. He stated that he waited outside for a while and [Ms A] came to talk to him and asked him to calm down and relax and she said “let’s go home and go to bed”. He said “No I will not go home with you”. She became upset, took his wallet and left the place and told him she was going home.

39. The applicant thought she would come back with his wallet but she did not return. He tried to call her many times because he wanted his wallet back. He had all his cards, money and could not do anything without his wallet.

40. He went to her home to see if she was in; she lived in Randwick and he had been there many times before. He knew the front door was unlocked and he walked in as the apartment is always open. There are five rooms in the apartment and she had one of those rooms. He opened the door, she was in bed and he went over to her and he asked her for his wallet. She started screaming and told him to get out. He went to the bed and she started pushing him and scratching him and he held her hands down. “I just want to get my wallet and I will go”. She pushed him away and he was holding her down and he does not know if it was her hand or his hand, but she was hit on the upper lip and her lip started bleeding. At this point he claimed she started panicking and screaming and he was trying to calm her down and he said “I just want my wallet and I will go”. However she started screaming even more and someone outside called the police. The police came and he opened the door for them and they brought him to Maroubra Police Station.

41. The police arranged for [Ms A] to be taken to the hospital but they saw his face was scratched and bleeding and did nothing to help him with his injuries. He told them that [Ms A] had taken his wallet but they told him that he should have called the police to assist with the return of the wallet and not gone to her place to try to have it returned. He told them he just wanted to get his wallet back.

42. The police granted bail to the applicant that night and they issued an interim apprehended violence order which is still in force. The applicant has not tried to contact [Ms A] and has no intention of contacting her in the future.

43. The applicant told the Tribunal he has a rented apartment in Bondi Junction. When she left he took over the lease himself. The lease expires in November 2019. He is in arrears but he has contacted the real estate agency and told them he could get a cousin who could lend him some money. If the applicant was not in detention he would be able to find contract work in IT programming. He stated it was not hard to find jobs in programming.

44. He would like to return to France but wants to stay and defend the charges. His criminal lawyer has told him that he may be able to negotiate a lesser charge if he is willing to plead guilty and then could return to France as soon as that matter is dealt with. However he is undecided as to what he should do; he wants to defend the charges but this will mean he has to stay longer in Australia whereas if he pleads guilty to a lesser charge he will be free to depart but will have a criminal conviction.

45. Following the hearing the applicant provided a number of documents to support his review application. The terms of the applicant’s bail conditions noted that he was required to report each day to Waverly Police Station and he advised that he had been reporting as directed. He also was directed not to contact [Ms A] and gave evidence that he had not contacted her and had no intention of contacting her in the future. He also provided a document which indicated that he was subject to an apprehended violence order not to approach or contact [Ms A].

46. The applicant gave the Tribunal copies of his tenancy documents, employment contracts and a letter from his cousin indicating his cousin would provide the applicant with any support he needed. He also provided documents which supported the evidence he gave that he had been employed by [Business 1] in its IT programming area on a contract basis.

47. The Tribunal must consider whether the applicant’s presence 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.

48. There is no evidence before the Tribunal of any other history of criminal conduct or violence which might pose a risk to the health, safety or good order of the Australian community or a segment of the community.

49. The delegate has identified the applicant as being, or that he might be, a risk to an individual, that is, [Ms A].

50. The applicant has given evidence that since he was charged he has not had any contact with [Ms A] and does not intend to ever have any future contact with her. He was charged on 14 January 2019 and on that date he was granted bail by NSW Police. He acknowledged his bail conditions not to contact [Ms A] or any prosecution witness, to report to Waverly Police Station each day and to surrender his passport. He gave evidence, which the Tribunal accepts, that he had been complying with his bail conditions from 14 January 2019 until his visa was cancelled some two months later on 29 March 2019.

1. The Tribunal has considered the material in the NSW Police Facts Sheet and the evidence given by the applicant about the circumstances leading to the charges against the applicant.

2. The versions given by the applicant and [Ms A] differ in some aspects; he stated that [Ms A] took his wallet without his consent and his intention was to attend [Ms A]’s residence and to have his wallet returned. He explained that his wallet contained money, bank cards and other valuable items and he was anxious to have it returned. He gave evidence that he had been in a relationship with [Ms A] but even after they separated they kept in contact and remained friends. He was familiar with her apartment, had been there many times and was aware the front door was always open. He did not intend to get into an argument with [Ms A] or to harm her; he just wanted his wallet returned. He agreed that their disagreement became physical and that he had pinned her arms down but claimed this was because she was scratching his face. He was also concerned that she was screaming after her lip was injured. He claimed that she did not offer to return his wallet she just told him to leave. He also stated that police did not give him any assistance with the facial injuries he received during the altercation.

3. On [Ms A]’s version of events as recorded in the fact sheets, she agreed that she took the applicant’s wallet after she left the nightclub and took it home with her. She claimed that when the applicant later entered her room she told him to take the wallet and leave. She stated he did not leave but assaulted her. On her version of events she told him to leave but he refused to leave and continued to pin her down and strike her However, she did state that at one stage during the altercation he wanted to talk and asked her to calm down.

4. The Tribunal is not in a position to make findings on what happened during the incident. It has not had the benefit of hearing the evidence of [Ms A] or any other witnesses. Further it is not required to consider whether the applicant is guilty of any criminal conduct in relation to the incident; this is a matter for the criminal courts.

5. The Tribunal must consider whether it is positively satisfied that the applicant’s presence 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.

6. The Tribunal accepts that a risk to health, safety or good order might arise on the possibility that an event has occurred in the past. However, the Tribunal does not consider there is sufficient evidence to support a finding that the applicant is a risk to [Ms A] in all the circumstances.

7. In considering whether the applicant is a risk to [Ms A], the Tribunal has weighed the allegations made against the applicant and the material in the facts sheet but also notes that the applicant does not accept that the incident occurred in the manner described in the facts sheet and has given an alternative version of events. It is the applicant’s current intention to defend the charges and he has engaged a solicitor to act for him in those proceedings. The applicant was on bail for over two months before he was taken into detention and he gave evidence, which the Tribunal accepts, that he met his bail conditions and in particular, made no attempt to contact or approach [Ms A] during those two months.

8. The applicant told the Tribunal he understands the importance of complying with his bail conditions.

9. There is no evidence of a criminal history, other violent conduct and no evidence that the applicant has breached his bail conditions or the conditions of an interim apprehended violence order. The Tribunal accepts the applicant has been previously employed, is able to support himself whilst awaiting the conclusion of criminal proceedings and will have the support of a family member during that period. Once the criminal proceedings are concluded he intends to return to France and to reunite with his parents and siblings.

10. Taking all these matters into account 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

11. 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