1927214 (Migration)

[2021] AATA 726

1927214 (Migration) [2021] AATA 726 (20 January 2021)

.DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1927214

MEMBER:Melissa McAdam

DATE:20 January 2021

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 20 January 2021 at 12:46pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – risk to the health or safety of women – applicant charged with sexual offence – bail granted – evidence of support persons – daily reporting to police – applicant issued with a Bridging visa – decision under review set aside           

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994

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 25 September 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 delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia may be a risk to the safety of women in Australia. 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

3. On 3 September 2019 the Department issued a Notice of Intention to Consider Cancellation under s.116 of the Act (‘the NOICC’) to the applicant. In the NOICC the department set out the following:

   -The department had received information that the applicant allegedly engaged in non-consensual sexual intercourse with a woman in the Australian community who was previously relatively unknown to him.

   -As a result of the alleged behaviour the applicant was charged by NSW Police [in] July 2019 with the offence of ‘sexual intercourse without consent (Crimes Act 1990)’.

   -Police information indicated the following:

   oAt approximately [time] on [a day in] July 2019 the applicant attended the premises of the alleged victim with his friend.  She engaged in consensual sexual intercourse with the applicant’s friend and then fell asleep.

   oIt is alleged the applicant then commenced sexual intercourse with the alleged victim without her consent while she was sleeping.  She awoke and subsequently reported the matter to the police

   Response to NOICC

4. On 13 September 2019 the applicant’s agent provided a written response to the department stating that:

   -The applicant has a clean criminal record.

   -He is pleading not guilty to the charge against him.

   -He was granted bail which suggests he may not be a risk because he passed the ‘unacceptable risk’ test set out in the Bail Act 1977.

   -His personal circumstances are that he has resided in Australia since 2015 without incident. He lives in Sydney with his wife and daughter. His wife has provided a character reference

5. The agent attached a letter dated 12 September 2019 stating that the applicant would next be in court at [Court 1] [in] September 2019.  The applicant has always maintained an intention of pleading not guilty to the charge.  He is not required to enter a plea until committal which is when the matter will be transferred to the District Court.  The matter will not be committed to the District Court until December 2019 at the earliest. His trial is then not expected to start until mid-2020.

6. The agent also attached a letter from the applicant’s wife, dated 11 September 2019, in which she stated that she could not believe her husband would commit such a crime. Her husband is of good character and is a gentle and caring spouse and father to their [age] year old daughter. She believes he has been wrongly charged.

   Delegate’s Decision

7. On 25 September 2019 the delegate decided to cancel the applicant’s visa.

   Information to the Tribunal

8. The applicant appeared before the Tribunal on 19 March 2020 and 14 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife and his wife’s sister.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

9. There was a long delay between hearing dates because the applicant several times asked for the postponement of a scheduled hearing in anticipation that his criminal matter would shortly be concluded.  However a sequence of developments prevented his criminal matter being ready for trial in the interim.

10. The following is a summary of the information provided by the applicant at the hearing on 19 March 2020:

    a.The applicant came to Australia to study. He was studying [a subject].  He had completed a [specified course].  He wants to improve his [professional] skills through his education qualifications.

    b.He has been charged with having sexual intercourse without consent.  The court case is still ongoing at [Court 1].  His criminal lawyer will discuss with the court [in] April 2020 whether the matter will continue or be discontinued.  The applicant’s criminal lawyer told him that they will discuss with the court to cancel the charge because the person who complained has had the same issues with other people. The lawyer is not helping the applicant with his visa cancellation.

    c.The applicant has appeared in court three or four times and materials were exchanged. He has not yet entered a plea but he intends to plead not guilty to the charge.

    d.He has been granted a Bridging visa E without the right to work or study.  He has some savings and his wife is working 20 hours per week.  They are still together. His wife is studying [another course]. Her visa lasts for two years.

    e.His next criminal matter court date is in April. His lawyer can provide more information to the Tribunal.

11. The following is a summary of the information provided by the applicant at the hearing on 14 December 2020:

    a.The applicant’s trial was supposed to commence in November but his lawyer ceased acting for him so his matter was postponed for mention on [a day in] February 2021 to allow the applicant time to apply for a grant of legal aid. He has applied for legal aid but has not received a response.

    b.His bail conditions have changed so that he does not have to report to the police every day, but every Tuesday, Thursday and Saturday.  He will provide a copy of his original bail conditions to the Tribunal.  He also has a curfew condition.  He has been complying with the curfew.

    c.The police have not been to the applicant’s home since he was charged.  He has not been questioned about any other offences.

    d.He lives with his wife and child and [specified family members].

    e.His wife’s visa expires in about February 2022. They haven’t yet decided whether she will apply for another visa.  He has a normal, fine relationship with his wife.  She works in [a specified occupation]. Her income almost covers their expenses.  He has also borrowed money from his family. 

    f.The applicant’s family know of the criminal charge against him.  They were shocked and worried about him. They do not think he committed the offence.  His mother came to be with him soon after the incident.

    g.Since he was born he lived with his parents who taught him discipline and how to behave. His mother stayed with him for about one month. His father also supports him emotionally and they have a good relationship.

    h.He and his wife do not argue much. Sometimes she accuses him of being untidy. They do not have fights.  She is not scared of him.

    i.Sometimes he is at home with just his sister-in-law and her [child] when [other family members] are at work.  His wife has showed no concern about leaving them alone with him. They are not fearful of him.

    j.There have been no complaints from any other women about the applicant since the incident.

    k.The applicant is not allowed to contact his former friend who was present at the incident.

    l.The applicant has close friends in Australia who can write a support letter for him.   They know about the criminal charge against him.

    m.His father taught him how to be respectful to others, through his words and acts. The applicant is trying to copy his father’s way to be a good role model for his young daughter.

    n.He does not think he is a risk to anyone’s safety.  He is innocent of the charge against him.

    o.The Tribunal asked the applicant if it could telephone his sister-in-law to give evidence at the hearing. The applicant agreed and provided her phone number.

12. The following is a summary of the information provided by the applicant’s wife’s sister, at the hearing on 14 December 2020:

    a.The applicant is her brother-in-law.

    b.She lives with [specified family members] and the applicant and his family.

    c.She is aware of the criminal charge against the applicant.

    d.She has been alone with the applicant and her [age child] in the house many times.  She has never felt fearful of him. She considers the applicant a very trustworthy and reliable person who would never harm them.  She has never heard or seen the applicant say or do anything that suggests to her he may hurt others.

    e.He does not generally speak about women. He is friendly and polite to his wife and their daughter.  She is not aware of him being rude to women. Judging on his behaviour he is caring and helping to others.  She has not seen him angry or violent.

    f.In her opinion the applicant would never be a risk to the safety of women in Australia.  She bases her opinion on her observations of the applicant and how he communicates with other people.  She has known him for three and a half years.  She has lived with him since 23 September 2020.  Before this she would visit his home two or three times a week.

13. On 8 January 2021 the applicant provided the following written materials to the Tribunal:

    -Copies of his attendance receipts for his attendance at [a named] Police Station to report.

    -A copy of his original Bail Acknowledgement. It lists the following bail conditions:

    oTo report to the police station daily.

    oTo surrender his passport.

    oNot to enter an international airport or point of departure.

    oTo live at a specified address.

    oNot to contact a specified person.

    oNot to go near or contact the complainant or any witness.

    oTo not leave home between 9 pm and 5 am.

    oThe deposit of the sum of $10,000 as a bail surety.

    -A written statement by the applicant’s mother in which she describes the applicant’s background and his behaviour as a respectful and good-hearted person. When they learned of the incident she was deeply troubled and travelled to Australia to meet with her son and hear from him what happened.  He is not the kind of person who would do such an act.  He has very polite relations with his sisters, wife and daughter. He learned how to respect women and communicate with them properly from his sisters.  Their family do not consume alcohol or smoke.  She completely trusts her son.

    -A written statement from a friend of the applicant.  He writes that he has known the applicant as a family friend since 2015. He was shocked when he learned of the incident and met with the applicant.  He believes that the applicant is not capable of acting violently towards women.

    -A written statement from another friend of the applicant who has known him since 2015.  He is proud to have the applicant as a friend and has a lot of respect for the applicant. They have travelled to parts of Australia together and are good friends. He believes he knows the applicant well. There are several women amongst their mutual friends.  When he first heard about the incident he did not believe it. He immediately went to the police station to see the applicant. He was not allowed to see the applicant. He later was able to see the applicant in [a named prison].  He believes the applicant is not capable of doing such an act and believes there must be a mistake.  The applicant is a humble, meek and friendly person, and a great father figure who shows a good example to his friends.  He respects women and communicates with them politely.

    -A written statement from another friend of the applicant who describes the applicant as trustworthy, respectful, friendly and honest.  He is fully aware the applicant is involved in a sexual offence charge which he is fighting.  Having known the applicant for four years he believes it is highly unlikely the applicant would do such a thing and believes the applicant will get a good result at court.

    -A written statement from the applicant’s flatmate who is married to the sister of the applicant’s wife. He and the applicant also worked together in 2017 and 2018. The applicant had a reputation at the workplace for being punctual and responsible.  The applicant does not use tobacco or illegal drugs. His alcohol consumption is very proper and he only drinks a small amount during traditional celebrations.  He has never seen the applicant drunk or intoxicated.  The applicant does not show any fierce or violent behaviour when he does drink alcohol.   When the applicant is not reporting to the police, which he does without fail, he cares for both families and helps around the house.

14. The following is a summary of the information provided by the applicant and his wife at the hearing on 13 January 2021:

    a.The applicant has a new criminal lawyer. [In] February 2021 he should learn of his new trial dates.

    b.The applicant rarely drinks alcohol. He only drinks a little on special occasions.  He has not been intoxicated since the incident.  He generally does not drink much and has no reason to get drunk.  He does not smoke or take drugs. He will never allow himself to be involved in any incident again. He just wants to contribute to his wife and children.

    c.His wife was shocked and angry when she learned of the incident.  He and she have generally discussed it.  She is being patient with him.

    d.The applicant’s wife does not think her husband might be a risk to the safety of women in Australia. She does not feel any fear around him.  He is not a dangerous person. She does not believe he is guilty of the charge against him.  She knows what happened, they have discussed it, and it has not affected their marriage.  Her husband has a great attitude to their family.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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?

16. 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].

17. 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.

18. The applicant is currently charged with the offence of sexual intercourse without consent.  His trial has not yet commenced.

19. The applicant has submitted that he has pleaded not guilty to the charge and is defending the charge against him. He therefore exercised his right not to answer questions about the charge during the Tribunal review.

20. The Tribunal has to assess the risk the applicant presents to health, safety or good order of individuals in Australia, on the evidence before it.  In the Tribunal’s view there is little evidence to indicate the applicant’s presence is such a risk, apart from the existence of the charge. 

21. The evidence before the Tribunal indicates the applicant is a person living with his wife and young daughter, as well as his sister-in-law and [specified family members].  The Tribunal notes his wife’s, sister-in-law’s and sister-in-law’s husband’s evidence that they have no reason to fear for their safety in the applicant’s presence, and that they are comfortable being alone with him.  The Tribunal also notes that people from the applicant’s social circle have written about the applicant’s character and have strongly indicated that he is presenting no threat to the safety of others.

22. The applicant’s mother has written of her shock at the news of the charge against the applicant and her immediate response to come to Australia to be with him.  The Tribunal accepts this as an indication she is not fearful of her son and that she had no awareness of any similar offensive behaviour in his past.

23. There is no evidence or indication before the Tribunal that the applicant has committed a similar offence, or otherwise behaved criminally, before the incident or subsequent to it.

24. The Tribunal found the evidence of the applicant’s witnesses persuasive and consistent in regard to their opinions that the applicant is not a risk to others.  They each described their knowledge of the applicant. The details they gave provided a reasonable basis for the views they offered.

25. The Tribunal accepts the applicant is reporting daily to the local police station, as per his bail conditions.  There is no indication before the Tribunal that he is breaching the curfew imposed upon him, requiring him to be home between the hours of 9 pm and 5 am.  The Tribunal accepts that in adhering to his bail conditions the scope for the applicant to be a risk to members of the public is significantly reduced.

26. The applicant, his family, his household, and his friends have all stated that the applicant does not smoke or use drugs and that he drinks little alcohol, and that there is little alcohol consumed by his household. There is no evidence before the Tribunal to contradict their information that since the incident, the applicant has remained a light and infrequent drinker of alcohol and has not been intoxicated.  The Tribunal therefore accepts there is a lack of prospect that the applicant will become intoxicated, and that this also reduces the potential for him to be a risk to the safety of others.  The Tribunal considers that the reported intoxication of the applicant at the time of the incident, shows little chance of being repeated in the applicant’s current circumstances.

1. The applicant presented as sincere in his evidence that he is actively caring for his young daughter and that this role is of major importance to him.  The Tribunal considers that his preoccupation for her care and development again lessens his scope for involvement in anything that may give rise to a risk to women or any others.

2. The Tribunal also notes that since the incident which gave rise to the charge against the applicant the Department has issued the applicant with a Bridging visa to remain in the community, outside immigration detention.  The Bridging visa remains valid.  The Tribunal considers that the ongoing validity of the visa may be viewed as an indication that the risk to the community the applicant presents is perceived as low.

3. In the Tribunal’s view, the applicant’s behaviour since receiving his bail conditions; his strong and stable support circle; the ongoing support of his family and household; his regular attendance to report to the police; his curfew; and the requirement to be responsible have all resulted in an environment in which the risk he presents to others in Australia is negligible. The Tribunal notes the low standard for ‘risk’ imposed by the amended section 116(1)(e). However in view of the accepted evidence and above findings it is difficult to find a likely context in which the applicant now may be a risk to the safety of women or others in Australia.

4. The charge remains outstanding against the applicant and may or may not result in the applicant’s conviction for a very serious offence.  The Tribunal is not expressing any view in this decision on the applicant’s guilt or innocence of the charge. 

5. Seventeen months have passed since the time of the incident resulting in the charge against the applicant. In that time there is no evidence that the applicant has behaved in any way that gave rise to a risk or threat to the safety of others in Australia.

6. In view of the evidence before the Tribunal and the particular circumstances of this matter the Tribunal is not satisfied that the applicant now is or may be, or would or might be, a risk to the safety of women or others in Australia.

7. The Tribunal is therefore not satisfied that the applicant is or may be, or would or might be, a risk to the health or safety of an individual in the Australian community.

8. 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

9. 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