1926766 (Migration)

[2020] AATA 5438

1926766 (Migration) [2020] AATA 5438 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1926766

MEMBER:Denis Dragovic

DATE:18 December 2020

PLACE OF DECISION:  Melbourne

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 18 December 2020 at 10:20am

CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – risk to safety of segment of Australian community – charged with sexual assault and released on bail – charges withdrawn and applicant departed Australia – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(e)(i)

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 17 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)(i) on the basis that the applicant was charged with sexual assault. Specifically, it was alleged that the assault occurred upon a random woman [in a specified location]. It was alleged that the applicant presented as being a professional massage therapist and then abused the trust that this claim engendered by groping the woman’s breasts. It was alleged that the applicant was engaged in a similar approach on another woman when the police detained him.

3. For this reason, the delegate found that the applicant would be a risk to the safety of a segment of the Australian community.

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

5. 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

6. 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?

7. The review applicant first appeared before the Tribunal on the 19 December 2019 at which time, due to a lack of representation and a forthcoming court date associated with the cancellation of his visa the hearing was adjourned to the 8 May 2020 upon the applicant’s request.

8. On the 23 April 2020 a letter was sent to confirm the forthcoming 8 May hearing and specifically whether the applicant had his day in court. On the 30 April the Tribunal received correspondence that his court date had been moved to [a date in] November and the applicant requested in the same correspondence to have a Tribunal hearing set for two weeks after that date.

9. The Tribunal was also notified that the applicant was released on bail on the 23 April 2020.

10. Following this, an invitation for the resumption of his hearing was sent on the 30 April 2020 inviting the applicant to appear before the Tribunal on 3 December 2020.

11. On the 29 October 2020 the applicant called the Tribunal to advise that all charges against him have been withdrawn.

12. The applicant departed Australia [in] November 2020.

13. On the 18 December the applicant provided by email a ‘Notice of order made’ from the [court] for the charge of sexual assault [in] June 2019 with the order ‘Struckout – withdrawn’.

14. While it is for the Tribunal to determine whether a visa holder is a risk to the safety of a segment of the Australian community including by being informed but not compelled by decisions of the courts, in this instance, noting that the applicant is no longer in Australia and as such cannot be a risk to the Australian community unless a new visa is granted and given that the charges against him that spurred the cancellation of his bridging visa were dropped, I find that the ground for cancellation in s.116(1)(e)(i) does not exist. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Denis Dragovic
    Senior Member