1911191 (Migration)

[2019] AATA 6645

1911191 (Migration) [2019] AATA 6645 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911191

MEMBER:Melissa McAdam

DATE:12 December 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 500 (Student) visa.

Statement made on 12 December 2019 at 10:21am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – risk to safety of Australian community or individual – charged with a number of sexual offences – pleaded guilty – risk to the safety of girls and women in Australia – detained in an immigration detention centre – closely monitored by a security presence – incentives to behave well – risk of recidivism if released in the community – 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. This is an application for review of a decision dated 30 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant was represented in relation to the review by his registered migration agent from Juris Australia.

3. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia is or may 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.

   NOICC

4. On 8 April 2019 the Department issued a Notice of Intention to Consider Cancellation under Section 116 of the Migration Act 1958 (NOICC) to the applicant. In the NOICC the Delegate set out the following information:

   -According to information from NSW police it is alleged that on 3 February 2019 the applicant inappropriately touched a number of females, previously unknown to him, while visiting a water park in Sydney.

   -As a result the applicant was arrested by NSW police and charged on 3 February 2019 with the following offences:

   oAggravated sexually touch another person, s.61kd(1)(A) Crimes Act 1900;

   oSexually touch another person without consent, s.61ke(A) Crimes Act 1900.

   -According to the police information it is alleged that :

   oThe applicant approached a number of females while they were swimming at the water park and inappropriately touched their bodies, including squeezing their buttocks.

   oThis alleged contact was non-consensual and uninvited.

   oFollowing these alleged incidents a number of victims reported the incidents to lifeguards on duty who reported the matter to the police.

   oThe applicant was charged.

   -According to the police information two of the alleged victims were under the age of 18.

   -It appeared that the applicant’s continued presence in Australia may pose a risk to the safety of a segment of the Australian community, namely women.

   -It appeared that there was a ground for the cancellation of the applicant’s Student visa under s.116(1)(e)(i) of the Act.

   Applicant’s Response to NOICC

5. On 11 April 2019 the applicant responded by email to the Department stating that he is pleading not guilty to the charges and his court appearance would be on 18 April 2019.  He has been reporting to the police daily for more than two months.  He is not a danger to the community unless the Magistrate finds him guilty of the offences.  His passport has been surrendered and he cannot depart Australia until a Magistrate orders the passport released from police custody.

   Delegate’s Decision

6. On 30 April 2019 the Delegate cancelled the applicant’s Student visa. 

   Information to the Tribunal

7. On 12 July 2019 the Tribunal sent an invitation to attend a hearing on 8 August 2019, to the applicant.

8. On 5 August 2019 the applicant’ representative wrote to the Tribunal, informing it that the applicant’s matter is listed for sentencing at [a] Local Court [in] September 2019, and asking for the applicant’s hearing to be postponed to a date after [date in] September 2019.

9. The Tribunal agreed to reschedule the hearing and invited the applicant to attend a hearing on 24 September 2019.

   Tribunal Hearing, 24 September 2019

10. The applicant attended the hearing on 24 September 2019 by telephone but his representative did not attend. The applicant stated he was in [immigration detention], that he had pleaded guilty to the charges against him, and had been sentenced to imprisonment [until] March 2020.  The Tribunal adjourned the hearing so that arrangements could be made for the applicant to appear before it in person.

11. The Tribunal invited the applicant to a resumed hearing on 14 October 2019.

    Request for Information

12. On 25 September 2019 wrote to the applicant, care of his representative, requesting information about the offence the applicant was convicted of;  the sentence he received; sentencing remarks; and bail arrangements.  The Tribunal also asked for copies of relevant documents.  The Tribunal asked for this information to be provided by 2 October 2019.

13. On 1 October 2019 the Tribunal received one document as an online submission, without cover letter or explanation or identification of the sender. The document is an ‘Advice of Court Result – Application to the Local Court’. It refers to the applicant by name and the offences:

    -‘Sexually touch another person without consent’

    -‘Intentionally sexually touch child >= 10 years and < 16 years” 

    It also states that the matter is listed for appeal hearing [in] November 2019 in [a District Court].

    Tribunal Hearing 14 October 2019

14. The applicant appeared before the Tribunal on 14 October 2019 to give evidence and present arguments.  His representative did not attend the hearing.

15. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The following is a summary of the information the applicant provided at the hearing:

    a.He was detained at [an Immigration Detention Centre] on 8 May 2018 soon after his visa was cancelled.

    b.On 17 September 2019 he pleaded guilty in the Local Court to the charges against him.

    c.He was sentenced to imprisonment [until] March 2020. He deicide to appeal the sentence and was released on bail, but taken back to the [immigration detention centre].

    d.Since the incidents he has not done anything. 

    e.While he was on bail, and not in immigration detention, he attended college to study. He also worked at [Company 1].

    f.He has no intention of committing any more offences.  He hasn’t returned to any areas such as swimming pools since he was arrested.  He has had very little interaction with women since his arrest. When he has interacted with them it has been respectful.   

    g.There were no complaints against him regarding his behaviour at his workplace. There were no complaints against him regarding his behaviour at his college. There have been no complaints against him regarding his behaviour at the [immigration detention centre].

    h.He has his mother, two sisters and a brother in Pakistan. They were shocked to learn of his arrest and the charges against him. He has a good relationship with his mother and sisters. 

    i.He pleaded guilty to the charges because he was told he would receive a lesser jail sentence if he did.  He did not intentionally touch the women in the pool. He was being pushed by the water and the waves and it was accidental. 

    j.The Tribunal put to the applicant that the police facts in the case indicated the contact was not accidental, and that he had pleaded guilty to the charges.  After some discussion the applicant stated he had done the things he was convicted of and he shocked himself at the time.  He has never done anything like that before.  His life stopped because of it and his future has been destroyed.

    k.He is one hundred percent sure he will never do such a thing again.  He has read books to try to understand what he did. He has totally changed his lifestyle.  He can understand the situation and the feelings of the women and girls he assaulted and feels very bad for them about what he did.

    l.He knows that if he ever does anything like that again, or commits any offence he may go to jail for a long time.  He will not let this happen.

    m.His visa was due to expire in September 2020.  If the visa is not cancelled he will seek another student visa when it expires so he can continue his studies in Australia.  He will also return to Pakistan to visit his family.

    n.It will cause him hardship for his future if his visa is cancelled.  If he can obtain an education qualification in Australia he will have better employment opportunities in Pakistan.  He has to work to support his parents and young siblings.

    o.At the time of the offences his family were having a financial crisis because of the loss of their crops.

    p.He has always complied with all his other visa conditions.

    q.He has not broken any other law.

    r.The only reason he wants to remain in Australia is to finish his studies. Then he will return to Pakistan.

16. The Tribunal has received no submissions from the applicant’s representative regarding any of the substantive issues in this application.

17. On 18 November 2019 the applicant sent an email message to the Tribunal informing it that his lawyer/agent was no longer acting for him.  No communication from the Agent has been received to confirm this information.

18. On 4 December 2019 the Tribunal wrote to the applicant requesting information regarding his sentencing appeal in the District Court.  No response has been received from the applicant. The Department’s records indicate that the applicant remains in immigration detention. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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?

20. 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].

21. 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.

22. The applicant has pleaded guilty to the offences of sexually touching another person without consent, and intentionally sexually touching a child between the ages of 10 and 16 years.  He has been sentenced to a term of several months’ imprisonment but released on bail while he appeals the sentence.

23. The conviction and guilty plea are evidence that the applicant has violated the safety of a young woman and girl in Australia, in the recent past. 

24. The question for the Tribunal to determine is both current and future-looking, namely whether the applicant’s continued presence is, or may be, a risk to the safety of girls and women in Australia.

25. There is no indication that the applicant’s presence is currently a risk to the safety of girls or women in Australia.  Available information indicates the applicant remains detained in the [immigration detention centre].  The Tribunal has received no indication that there are any reports or complaints about adverse behaviour by him there.  He is closely monitored by a security presence at the detention centre.  He is also under substantial motivation to behave well at the centre in view of his sentencing appeal, desire to avoid prison and desire to regain his visa.  Based on the available information the Tribunal is not satisfied that, in his current circumstances in detention in the [immigration detention centre], the applicant’s presence in Australia is, or may be, a risk to the safety of girls or women in Australia.

26. In regards to whether the applicant’s presence in Australia is or may be a risk to the safety of women and girls in Australia, outside of the [immigration detention centre], the Tribunal needs to consider two situations, namely if the applicant is imprisoned and if he is living in the community.  The Department’s records indicate that the applicant remains in immigration detention.  This means the applicant either successfully appealed his prison sentence, or the appeal has not yet been finalised.

27. If the applicant serves a prison sentence he will again be in a secure compound and closely monitored.  He will also have very little close interaction or exposure to women and presumably nil to girls. The Tribunal is therefore not satisfied that, if imprisoned, the applicant’s presence in Australia while in jail, is or may be a risk to the safety of girls or women in Australia.

28. If the applicant is released to the community there will again be potential for interaction between him and women and girls.  To determine whether his presence may be a risk to their safety the Tribunal must assess the available evidence.  That evidence is limited, entailing the evidence of his convictions plus the applicant’s oral and written evidence.

29. The Tribunal accepts that the applicant’s criminal convictions clearly show he was a risk to the safety of women and girls in Australia at the time of his offending.  However the convictions alone are not clear evidence that the applicant’s presence continues to be such a risk.  The applicant does not have a history of similar offences nor is there any indication of subsequent similar offences.

30. The Tribunal notes that the rate of recidivism in NSW is relatively high at around 40%[1]. However a breakdown of this figure shows that the percentage differs widely according to the type of crime.  The NSW Government ‘Re-Offending Statistics’ reports that the percentage of people convicted of ‘Sexual assault and related offences’  who ‘re-offended within the same offence type’ was less than 1% for most years from 2008, and was 1.1% in 2017.[2] 

    [1] NSW Bureau of Crimes Statistics and Reports, ‘Re-Offending Statistics for NSW’, NSW Bureau of Crimes Statistics and Reports, ‘Re-Offending Statistics for NSW’, Table 3,

31. The Tribunal notes that the criminal justice system in Australia includes punishment, deterrent and rehabilitation aspects.  Each of these aspects has force and a degree of community confidence.  The Tribunal does not consider its role is to substitute its assessment of criminality and sentencing for that of the established criminal justice system.  The applicant’s matter was summarily determined in the Local Court, not a higher Court which is usually reserved for serious offences.  This is an indication of the level of threat the applicant was considered to present, by the police and court.  The court assessed the penalty for the applicant and released him on bail pending his appeal.

32. Given the strain and upheaval of his arrest, trial, conviction, detention, loss of visa and possible imprisonment it can be assumed the applicant would be highly reluctant to subject himself to such consequences again by re-offending.  There is nothing before the Tribunal to contradict his evidence that he had never engaged in such unlawful behaviour before and that it shocked both him and the people who know him.  The applicant’s statements at hearing that he would never commit such offences again and that he regretted causing harm to the victims appeared sincere.

33. In sum, the available evidence does not support a conclusion that the applicant may again harm girls or women in Australia.  On the evidence before it the Tribunal is not satisfied that the applicant’s continued presence in Australia is or may be a risk to the safety of women and girls in Australia.

    Conclusion

34. 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

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Melissa McAdam
    Member