1931307 (Migration)

[2020] AATA 2001

1931307 (Migration) [2020] AATA 2001 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1931307

MEMBER:Nathan Goetz

DATE:11 March 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 11 March 2020 at 3:47pm

CATCHWORDS

MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) visa – risk to a segment of the Australian community – applicant charged with an offense – presumption of innocence – low risk of harm to the Australian community – decision to prosecute a matter – visa condition of not engaging in criminal conduct – decision under review set aside

LEGISLATION

Migration Act 1958, ss 116, 140

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 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’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.

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

4. By way of background, the applicant is a citizen of India who arrived in Australia [in] February 2018 as the holder of a [temporary] visa. He travelled with his wife and child. On 19 April 2018 the applicant lodged an application for a protection visa and included his wife and child as dependents. The applicant was granted the Bridging A visa [in] May 2018 while his protection visa was being determined.

5. On 3 October 2019 the applicant was notified of an intention by the Department to consider cancelling his Bridging A visa.

6. The notification of intention provided that the Department had received information that the applicant had allegedly engaged in inappropriate and non-consensual physical contact with a woman in the Australian community who was previously unknown to him. He had been charged by New South Wales Police [in] July 2019 with ‘Assault with act of indecency’ under the Crimes Act 1900 (NSW). Police information obtained by the Department indicates that [in] August 2018 the applicant boarded a train and sat next to a woman who was previously unknown to him.

7. After being seated beside the complainant for some time, the applicant initiated inappropriate physical contact with the complainant by placing his hand on her leg. Police information indicated that the complainant thought this initial physical contact was accidental. The applicant continued to make physical contact with the complainant, including with her leg and inner thigh. The complainant used a backpack to conceal this physical contact from potential observers. The applicant ceased this behaviour when the complainant realised this contact was intentional and pushed the applicant’s hand away.

8. The applicant attempted to initiate conversation with the complainant and confirm where she would be disembarking the train. The complainant moved to another part of the train and the applicant exited the train while continuing to observe the complainant. The complainant reported this matter to the police and the applicant was subsequently arrested and charged with offending that is now before the courts.

9. Noting the impact that sexual assault may have on individuals, the delegate considered that the applicant’s continued presence in Australia may pose a risk to the safety of women as a segment of the Australian community.

10. The applicant responded to the notice of intention by letter dated 16 October 2019. The delegate noted the response in the decision to cancel the visa as follows and indicated that he considered it before determining to cancel the visa. In short, the applicant disputed that grounds existed for the cancellation of his Bridging A visa. The applicant wrote that his matter was listed for trial [in] March 2020 and that he should be presumed innocent until found guilty in court. He had been granted bail in the criminal proceedings which indicated that he was a low risk to the community and had been abiding by those bail conditions. He was not arrested by the police until [July] 2019 and there was no reports of other offending between the alleged offending [in] August 2018 and his arrest by police and he continued to use public transport without incident. He has abided by the laws in all countries that he had visited and does not have a criminal record, and was granted his visa to travel to Australia after satisfying the Department that he did not pose a risk to the Australian community.

11. After considering the material, the delegate was satisfied that the grounds existed to cancel the visa. The delegate then proceeded to consider whether he should exercise the discretion to cancel the visa. The delegate the applicant’s purpose in travelling and remaining in Australia, the extent of the applicant’s compliance with visa conditions, the degree of hardship that may be caused to the applicant and any family members, the circumstances in which the ground for cancellation arose, the applicant’s past and present behaviour towards the Department, any consequential cancellations that may result from the cancellation of the applicant’s visa, the legal consequences of the decision to cancel the visa and Australia’s international obligations. The delegate considered what the applicant had written about these issues in his response to the notice of intention to cancel the visa.

12. In the event of a cancellation, the applicant and his family would be liable for detention. Prolonged immigration detention is now warranted and could have implications for the applicant and his family’s mental health. A cancellation decision could result in the separation of the applicant from his wife and daughter which would cause hardship to the family, even if the separation was on a temporary basis. Cancellation could result in consequential cancellation of the visas of the applicant’s wife and daughter which could affect the protection visa applications. A visa cancellation outcome could result in financial hardship for the applicant and his family because his wife is unemployed, and affect his daughter’s studies. The applicant also stated that the cancellation would be contrary to Australia’s international obligations due to the applicant and his family’s status as refugees, noting that he and his family departed India due to a well-founded fear of persecution.

13. Having considered the matters, the delegate determined that the grounds for cancelling the visa outweighed the reasons not to cancel the visa. He therefore decided to cancel the applicant’s visa on 24 October 2019.

14. The applicant applied to the Tribunal on 4 November 2019 for a review of the cancellation decision. The applicant provided the Tribunal with a copy of the delegate decision.

15. Subsequent to the cancellation decision, the Department assessed the protection visa application. A delegate was not satisfied that the applicant, his wife or child met the criteria for a protection visa, and the protection visa was refused on 14 February 2020. The applicant applied to the Tribunal for a review of the refusal decision in case 2004370. This case remains pending.

16. On 11 March 2020 the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malayalam (Indian) and English languages.

17. The applicant was represented in relation to the review by his registered migration agent [identified] and he attended the hearing.

18. 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

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)(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?

20. A visa may be cancelled under s.116(1)(e)(i) 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. 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 Tribunal is not persuaded by the applicant’s submission that because the charge is not proven against him, this means that the ground for cancellation under s.116(1)(e)(i) did not exist. The Tribunal asked whether there was any judicial authority for such a proposition. The applicant was unable to provide any case supporting such an argument.

23. The Tribunal acknowledges that the applicant has not been found guilty of the charge he faces [in] March 2020. That is properly a matter for the court to determine. The Tribunal is conscious that merely being charged with an offence should not equate to guilt in the decision-makers mind. However, when the Tribunal has regard to the Police Statement of Facts which describe the circumstances of the allegations, the Tribunal is concerned that, if the allegations are true, the applicant presents as an opportunistic sexual offender who engages in blatant offending in public places. While the applicant may be emphatic in his denials, it would be reasonable to assume that the complainant would be equally emphatic in her allegations. The Tribunal is not equipped, and nor should it be required, to engage in a long assessment about whether the applicant is guilty beyond a reasonable doubt, whether there is a prima facie case, or whether there was a reasonable basis for the charges, or whether it is in the public interest for the matter to proceed. Those matters are quite rightly the purview of the prosecuting authorities and the court.

24. The Tribunal can, however, consider the Office of Director of Public Prosecutions Guidelines for NSW about the decision to prosecute a matter[1]. In that document, the following is provided:

    [1] 4 - The Decision to Prosecute

    The prosecution process is usually enlivened by a suspicion, an allegation or a confession. Not all, however, will result in a prosecution.

    "It has never been the rule in this country ... that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute 'wherever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest'. That is still the dominant consideration."

    (per Sir Hartley Shawcross QC, UK Attorney General and former Nuremberg trial prosecutor, speaking in the House of Commons on 29 January 1951).

    That statement applies equally to the position in New South Wales. The general public interest is the paramount criterion. The question whether or not the public interest requires that a matter be prosecuted is resolved by determining:

    (1) whether or not the admissible evidence available is capable of establishing
    each element of the offence;

    (2) whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not

    (3) whether or not discretionary factors nevertheless dictate that the matter should not proceed in the public interest.

25. Given the above guidelines, and in light of the fact that the criminal charge remains pending against the applicant, the Tribunal is satisfied that there is admissible evidence capable of establishing each element of the offence, that there are reasonable prospects of conviction and that it is in the public interest for this matter to proceed. If Guideline 4 was not met, the matter would not be continuing.

26. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i). As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

27. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’ but ultimately, the most persuasive factor concerning the exercise of the discretion to cancel can be found by considering the applicant’s current migration status in Australia.

28. The Tribunal understands that as a result of a decision by the Tribunal to uphold the Bridging A visa cancellation, the applicant will become an unlawful non-citizen and liable to immigration detention. However, in light of the fact that he has ongoing criminal matters, the Tribunal is not satisfied that his status as an unlawful non-citizen would result in his removal from Australia. The Department has at its disposal the ability for a Criminal Justice Certificate to be issued in favour of the applicant to prevent his deportation, pending the finalisation of his criminal charge. The Tribunal accepts that the applicant would be placed into immigration detention if this were to occur.

29. However, the Tribunal does not accept that the placing of the applicant into immigration detention is a factor that should be persuasive when determining whether or not to cancel the Bridging A visa. Immigration detention is not punitive. It is an administrative measure to ensure that unlawful non-citizens are not at large in the Australian community. Any restriction on the applicant’s liberty or ability to see his wife and [age] year old daughter may be unfortunate for the applicant and his family, but is a consequence of Australia’s migration laws. The Tribunal is not satisfied that consequence of lawful actions through Australia’s migration system should act as a means to exercise the cancellation discretion in the applicant’s favour.

30. The Tribunal also acknowledges that the applicant is working at [a business] and has done so for the past two and a half years. The Tribunal accepts as true the applicant’s oral evidence that his wife does not work in Australia, is a homemaker and has the care of their [age] year old daughter who is in [grade] at primary school. In the event that the applicant finds himself as an unlawful non-citizen and placed into immigration, the Tribunal accepts that the applicant would not be able to work. He is the sole source of income for the family and pays $500 per fortnight for the family’s share of their rented premises. However, the applicant and his wife have other support by way of their family in India. Indeed, the applicant’s elder brother is currently assisting the applicant’s parents to meet their living expenses. The applicant’s wife’s mother is in receipt of a government pension. The Tribunal is satisfied that the family in India would provide financial support to the applicant’s wife and daughter in the event of the applicant being detained in immigration detention and unable to work. The Tribunal is not satisfied that the applicant being unable to work will result in serious hardship to his family in Australia.

31. The Tribunal also does not accept that there would be any adverse impact on the migration status of the applicant’s wife or child as a result of the decision to cancel his Bridging A visa. As conceded by the applicant at the hearing, his wife and child’s visas have not been cancelled. The cancellation decision only concerns the applicant, and that decision notes that the Department is not considering cancelling their bridging visas of the applicant’s wife and child. The Tribunal is not persuaded that there will be any adverse impact on the status of the applicant’s wife or child as a result of cancelling his Bridging A visa.

32. Despite all of the above, the Tribunal has considered that there is one ultimate factor that is the most persuasive reason for not cancelling the applicant’s Bridging A visa. This can be found by understanding the applicant’s current migration status in Australia which has been facilitated by the Department.

33. As noted earlier, the applicant’s Bridging A visa was cancelled on 24 October 2019 and the applicant lodged a review with the Tribunal on 4 November 2019 against the cancellation decision. As a result of the cancellation decision, the applicant became an unlawful-non citizen in Australia. An unlawful-non citizen in Australia is liable to be detained in immigration detention. The Tribunal found it odd that the applicant was not appearing from immigration detention at the Tribunal hearing, given that the Bridging A visa had been cancelled.

34. However, the Department did not place the applicant in immigration detention following the cancellation decision. Instead, the Department records indicate that on 11 November 2019 the applicant was granted a Bridging E visa by the Department which allowed the applicant to remain in the community pending the Tribunal’s decision whether to cancellation the Bridging A visa.

35. It is extremely curious to the Tribunal that the Department would decide firstly that applicant’s presence in the Australian community would be a risk to the health, safety or good order of that community to warrant the cancellation of his Bridging A visa, but then decide to grant the applicant a Bridging E visa to remain in that same community instead of placing the applicant in immigration detention as an unlawful-non citizen.

36. The curiosity of this course of events is compounded even more when the Tribunal looks at the conditions that the Department imposed when it granted the applicant the Bridging E visa on 11 November 2019.

37. Those conditions were:

    8401:The holder must report (a) at a time or times; and (b) at a place specified by the Minister for the purpose.

    8505:The holder must continue to live at the address specified by the holder before grant of the visa.

    8510:Within the time specified by the Minister for the purpose, the holder must, either (a) show an officer a passport that is in force; or (b) make an arrangement satisfactory to the Minister to obtain a passport.

    8207:   The holder must not engage in any studies or training in Australia

    8564:The holder must not engage in criminal conduct.

1. A bridging visa can only be granted if the decision-maker is satisfied that the applicant will abide by all of the conditions attached to the visa. In the present case, the most relevant factor is condition 8564. The Department has clearly been satisfied that the applicant will not engage in criminal conduct because he would not have been granted a Bridging E visa otherwise. It is illogical in the Tribunal’s view for the Department to determine that the applicant’s Bridging A visa should be cancelled because he is a risk to the health, safety or good order of the Australian community or a segment of the Australian community based on the applicant being charged with criminal offences, yet then be satisfied that the applicant will not engage in criminal conduct and accordingly grant the applicant a Bridging E visa.

2. Although the Tribunal is not bound by findings of another decision-maker in the cancellation decision or the decision to grant the Bridging E visa, the Tribunal really struggles to exercise the discretion to cancel the visa against the applicant in light of the fact that the Department has determined in the subsequent Bridging E visa that that applicant will not engage in criminal conduct.

3. In the Tribunal’s view, whether the applicant will engage in criminal conduct is not an assessment of risk. The test is not whether there is an acceptable risk. The test is absolute. It is very persuasive to the Tribunal that the Department has been satisfied that the applicant will not engage in criminal conduct. The fact that the Department, which is the authority that cancelled the Bridging A visa in the first place, saw fit to grant the applicant a subsequent Bridging E visa which allowed the applicant to remain at liberty in the community, is incredibly significant in this case.

4. The Australian community may well be outraged that the applicant, who has been charged with a sexual offence, has been allowed to remain in the community through the subsequent actions of the Department by granting the applicant a Bridging E visa. The Tribunal finds itself in a very difficult position when it comes to working out what to do about the Bridging A visa.

5. In exercising the discretion, the Tribunal must act reasonably. As the Tribunal put to the applicant, had he not been granted the Bridging E visa, the Tribunal would have likely upheld the cancellation decision because the Tribunal is satisfied that the applicant is, may, would or might be a risk to the community in light of the criminal charge he faces. However, as the Department has facilitated the applicant remaining in the community by granting him a Bridging E visa, it would be unreasonable to uphold the cancellation. It would be illogical to do anything other than set aside the decision to cancel the Bridging A visa.

6. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

   DECISION

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

   Nathan Goetz
   Member