1926586 (Migration)

[2020] AATA 1509

1926586 (Migration) [2020] AATA 1509 (14 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926586

MEMBER:Hugh Sanderson

DATE:14 April 2020

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 14 April 2020 at 8:29am

CATCHWORDS

MIGRATION – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to safety of Australian community – criminal charge – bail – intention to plead not guilty – proceedings dismissed – protection visa refused and review pending – physical and mental health – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(e)

Migration Regulations 1994 (Cth), Schedule 2, cl 050.223, Schedule 8, condition 8564

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. This is an application for review of a decision dated 19 September 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 010 (Bridging A) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that based on the fact that the applicant had been charged with sexually touching another person without consent the delegate found that the presence of the applicant in Australia is or may be, or would, or might be a risk to the safety 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.

   Background

3. The applicant is a citizen of India and is currently [Age] years old. He has entered Australia on multiple occasions on temporary visas since first entering Australia in 2004. He last entered Australia [in] July 2017 holding a Subclass 600 Visitor visa. He then applied for a Protection visa on the basis that he would face persecution in India as a bisexual male.

4. The applicant was residing at the [Refugee accommodation] in [Suburb] in April 2018 when an altercation occurred between him and two Muslim men who were residing there. The applicant suffered an injury as a result of that altercation. The police brought an application for an Apprehended Violence Order against the applicant for the protection of the two men with whom he was involved in the altercation. No action was taken against the other two men. [In] May 2018 the applicant consented, without admission, to the AVO being granted. The applicant claimed that the allegations that had been made against him in respect of the AVO were false.

5. [In] July 2019 the applicant was arrested and charged with sexually touch another person without consent. The charge related to an allegation from a [Age]-year-old girl that the applicant had sat next to her on [public transport] and he had placed his right hand onto the girls left leg. The girl told the applicant to stop and he removed his hand, only to place his hand back on her leg again after a few minutes and move his hand onto her inner thigh area. The victim alleged that when she tried to make more distance from the applicant by moving along the seat the applicant followed her and placed his hands on her leg for a third time.

6. The girl then got off [at] her stop and went home. When her parents arrived home, they found her crying in her bedroom and she related to them what had happened. The applicant was identified by CCTV footage and was arrested and charged with the offence. He was granted bail in respect of the charge.

7. The Department wrote to the applicant on 23 August 2019 with a notice of intention to consider cancellation of the applicant’s Bridging visa under s.116 of the Act. The notice referred to the fact that the applicant had been charged with the offence and that it was considered the applicant’s continued presence in Australia may pose a risk to the safety of the Australian community. The applicant responded by providing various statements and documentation relating to events he claimed had occurred while he was in Australia. He stated that he was pleading not guilty to the charge.

8. The delegate who considered the application noted the following issues:

   ·The offence the applicant had been charged with was serious, particularly as it related to a [Age]-year-old girl who was previously unknown to the applicant;

   ·The alleged behaviour is unacceptable in the Australian community and indicates the applicant could pose a risk to the Australian community;

   ·Although the applicant had pleaded not guilty to the offence and had been granted bail, there was a different test that is administered when considering whether the applicant’s Bridging visa should be cancelled;

   ·The applicant had abided by his bail conditions, particularly in light of the repercussions that would follow if he did not; and

   ·The applicant did not have a previous criminal history.

9. Due to the seriousness of the offence, the delegate was satisfied that there were grounds for cancelling the applicant’s Bridging visa pursuant to s.116(1)(e) of the Act.

10. In considering whether to exercise the discretion to cancel the visa, the delegate took into account the following:

    ·The applicant was claiming that he faced persecution in India due to his bisexuality;

    ·The applicant’s Protection visa application was refused by the Department and that decision is currently under review before the Tribunal;

    ·The applicant had made a number of allegations against various organisations in Australia and had made complaints to the Australian Human Rights Commission and claimed to have been a victim of crime;

    ·The applicant claimed that he was suffering from a number of different medical conditions and was suffering from post-traumatic stress disorder;

    ·The applicant had previously been granted multiple business and tourist visas and had abided by Australia’s immigration laws;

    ·The applicant’s Subclass 457 visa granted to him was cancelled on 1 September 2010 due to the applicant failing to abide by a work limitation condition on that visa;

    ·The applicant has contributed to the Australian economy in his work and other activities;

    ·The applicant denied the allegations made against him and was defending the criminal charge; and

    ·The applicant had provided a number of character witnesses.

11. Balancing all matters, the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa. Accordingly, the applicant’s Bridging visa was cancelled.

    Information to the Tribunal

12. After the Department made a decision to cancel the applicant’s Bridging visa, the applicant applied for a further Bridging visa on the basis of his application for a review of the decision cancelling the Bridging visa. After assessing the application, the Department granted the applicant a Bridging visa on 3 October 2019. One of the discretionary conditions imposed on that Bridging visa was condition 8564 that the applicant not engages in criminal conduct. It is noted that cl.050.223 for the grant of a Bridging visa requires that the Minister, or their delegate, is satisfied that the applicant will abide by the conditions of the Bridging visa.

13. The criminal proceedings against the applicant were withdrawn and dismissed [in] February 2020. No information has been provided to the Tribunal on what basis the charges were withdrawn and it appears that the prosecution determined that there was no prima facie case.

14. The applicant provided various documents in support of the application including a review decision in respect of his application for victim’s compensation arising out of the alleged assault he suffered [in] April 2018.

15. In light of the information now before the Tribunal, the Tribunal has proceeded to a decision without the need for a hearing.

16. 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

17. 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?

18. 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].

19. 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.

20. Subsequent to the applicant applying for a review of the decision to cancel his Bridging visa, the Department made a decision that he met the criteria for the grant of a further Bridging visa. One of the conditions that the Department found that the applicant satisfied was that he would not engage in criminal conduct. In coming to that decision, it would be expected that the Department took into consideration the fact that the applicant had been charged with a criminal offence but was still able to find that in granting the subsequent Bridging visa that he would not engage in any criminal conduct. This tends to undermine the finding the Department made in relation to the cancellation of the applicant’s Bridging visa that his presence in Australia is or may be, or would or might be, a risk to the health or safety of any individual or individuals based on the fact that he had been charged with a criminal offence. If the Department were satisfied that the applicant would not engage in criminal conduct that this would indicate that the delegate was satisfied the criminal conduct with which the applicant was at that stage accused of would not be repeated by him.

21. The applicant’s criminal charges were withdrawn and dismissed [in] February 2020. As indicated above, there is no information before the Tribunal to explain why the charges were withdrawn. It appears that the prosecution determined that the elements of the criminal offence were not able to be proved and no prima facie case existed. As the applicant is no longer subject to any charge of any sexual assault or other criminal offence this must be given significant weight when considering whether 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.

22. The Tribunal has taken into account the fact that the applicant was subject to an Apprehended Violence Order made [in] May 2018 for a period of 12 months. That order was made by consent without admissions. The allegations raised in respect of that application were denied by the applicant. The applicant was not convicted of any assault on the alleged victims and no determination of his guilt in respect of the allegations was made.

23. The applicant provided to the Tribunal a Notice of Review Decision pursuant to the Victims Rights and Support Act (NSW) 2013. In that decision, after reviewing the documentary evidence and hearing from the applicant it was noted the assessor found the applicant to be the primary victim of an act of violence. On review, the applicant was found eligible for a payment of $5,000.

24. There is no information before the Tribunal that the applicant has been convicted of any criminal offence in Australia or that he is currently subject to any criminal charge. As the criminal charges that were laid against the applicant which were the basis of the Department cancelling his Bridging visa have now been dismissed, the Tribunal places no weight on those charges when considering whether 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.

25. The circumstances that led to the applicant having an Apprehended Violence Order made against him are disputed. That order was only made by consent without admissions. The assessor of an application for compensation in respect of the alleged assault found that the applicant was the primary victim of an act of violence and received compensation as a result of that fact. This does not support a finding that the applicant was the aggressor during that incident or that the circumstances of that incident would lead the Tribunal to conclude 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.

26. In all the circumstances, the Tribunal is not satisfied that there is evidence which would lead to conclude 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.

27. 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

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

    Hugh Sanderson
    Member