1934715 (Refugee) - [2020] AATA 1134

1934715 (Refugee) [2020] AATA 1134 (11 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1934715
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Shahyar Roushan
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 790 (Safe Haven Enterprise Visa) visa.

Statement made on 11 March 2020 at 11:38am

CATCHWORDS
REFUGEE – cancellation – protection visa – Iraq – risk to safety of segment of Australian population – charged with criminal offences against a child – intention to plead not guilty – claim that wife’s relatives instigated false accusations – conditional bail – discretion to cancel visa – strong family connections in Australia – wife’s financial hardship, mental health and approval for Australian citizenship – best interests of Australian citizen children – indefinite detention and non-refoulement – risk of serious harm if returned – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)(i)
CASES
ATR15 v MIBP [2016] FCCA 1089
FMV17 v MIBP [2019] FCCA 186
Gong v MIBP [2016] FCCA 561
MZAJA v MIBP [2017] FCCA 448
Newall v MIMA [1999] FCA 1624
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 November 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s.116 of the Migration Act 1958 (the Act).
Background
The applicant is a [age] year old national of Iraq. He arrived in Australia [in] August 2012 as an Illegal Maritime Arrival (IMA). [In] September 2015, the Minister for Immigration exercised his power under s.46A(2) of the Act to allow him to lodge a Protection visa application.
He was granted a Safe Haven Enterprise Visa (SHEV) [in] November 2017. The visa was granted on the basis of his religion as a Sunni Muslim, and his imputed political opinion as a former [employee] of [Employer] and for collaborating with Western military forces and the Iraqi government.
According to the delegate’s decision record, [in] June 2019 the applicant was charged by [Police] with a number of offences [relating to] a child in the Australian community. At the time of the alleged offences, the child was aged between [Age 1] and [Age 2] years old. The delegate referred to a [Police] Facts Sheet obtained by the Department, which recorded the alleged offences committed against the applicant’s [Relative 1] on [separate] occasions, between [Date 1] and [Date 2]. The charges consisted of the following:
·[A number of] counts of [Offence 1]
·[Offence 2]
·[Offence 3]
The NOICC

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1934715 (Refugee)

Details

AGLC: 1934715 (Refugee) [2020] AATA 1134
Case: [2020] AATA 1134
Decision Date: 11 March 2020

CaseChat Overview and Summary

The applicant, Shahyar Roushan, sought review of a decision to cancel his protection visa. The dispute arose from criminal charges laid against the applicant concerning offences against a child, which the applicant intended to plead not guilty to, alleging false accusations instigated by his wife's relatives. The court was required to determine whether the ground for cancellation under section 116(1)(e) of the Migration Act 1958 (Cth) existed, and if so, whether the Minister's discretion to cancel the visa should be exercised.

The court found that the possibility of past conduct by the applicant, as alleged in the criminal charges, satisfied the ground for cancellation under section 116(1)(e), as his presence in Australia could pose a risk to the health, safety, or good order of the Australian community or a segment thereof. However, the court then considered the exercise of discretion regarding cancellation. It weighed the applicant's strong family connections in Australia, the significant hardship his detention caused to his wife and Australian citizen children, and the wife's financial and mental health struggles, against the grounds for cancellation. The court also noted the applicant's compliance with visa conditions and the grave consequences of cancellation, including the risk of serious harm if returned to Iraq, which was a factor in his original visa grant.

Ultimately, the court concluded that the factors favouring the visa not being cancelled outweighed those supporting cancellation. Consequently, the decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Following the hearing, the applicant’s representative submitted the following additional material:·A statement, dated [February] 2020, authored by [Ms B], the [Relative 4] of the applicant’s wife. [Ms B], drawing upon her own observations, essentially stated she believed the allegations against the applicant to have been fabricated by the victim as a way to harm the applicant by either facilitating his return to Iraq or his imprisonment for life. ·A statement, dated [February] 2020, by the [Relative 5] of the applicant’s wife, [Ms C], who resides in [Country]. [Ms C] stated that [Relative 2] had told her that she had ‘set up an accusation’ against the applicant in order to get him to divorce his wife and be deported from Australia. It was stated that [Relative 1] was forced to make the allegations as she would be easily believed and would not be held accountable for what she says. [Ms C] further stated that [Relative 2] had promised to bring her to Australia if she supported the false allegations. However, when she told [Relative 2] that she was strongly against what she was doing, [Relative 2] stopped supporting her financially. ·Letter by the applicant’s criminal defence lawyers, dated [February] 2020. The letter stated that the applicant’s criminal matter has been listed for arraignment in [a] Court on [Date 4] and he will be formally entering a plea of not guilty. The matter will then be set down for a trial ‘late this year or even possibly early next year.’ ·Copy of an approval letter dated [December] 2019 in relation to the applicant wife’s Australian citizenship application. ·Copy and translation of threatening text messages from [Relative 3], [Mr D], received by the applicant [in] February 2019. CONSIDERATION OF CLAIMS AND EVIDENCE 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? 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]. 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.

Decision

Reasons for decision

Having regard to the circumstances of this case as a whole, the Tribunal finds that the consequences of the cancellation are particularly grave. The Tribunal considers that the factors in favour of the visa not being cancelled outweigh the considerations supporting the cancellation of the applicant’s visa. The Tribunal, therefore, concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.Shahyar RoushanSenior Member

Ratio Decidendi

Legal Principle Established

The possibility of past conduct by the applicant as alleged in [the charges] laid against him by the [police] leads the Tribunal to find that his presence in Australia may be a risk to the health, safety or good order of the Australian community, a segment of the Australian community or any individual. The Tribunal, therefore, is satisfied that the ground for cancellation in s.116(1)(e) exists. 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 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’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The Tribunal accepts that the applicant arrived in Australia [in] August 2012 as an IMA. [In] September 2015, the Minister exercised his power under s.46A(2) of the Act to allow him to lodge a Protection visa application.[In] November 2017, the applicant was granted a SHEV on the basis of his religion as a Sunni Muslim, and his imputed political opinion as a former officer of [Employer] and for collaborating with Western military forces and the Iraqi government. The Tribunal accepts that the applicant’s travel and stay in Australia are consistent with the purpose of his past and current visas. The Tribunal further accepts that the applicant has strong family connections in Australia and such connections are stronger than his connections to any other country. The Tribunal gives this factor weight in considering whether the discretion to cancel the visa should be exercised.The extent of compliance with visa conditions There is no evidence before the Tribunal that the applicant has failed to comply with any visa conditions. Degree of hardship that may be caused (financial, psychological, emotional or other hardship) The applicant and his wife have been married for [a number of] years. Together they have [children]: [details deleted]. The Tribunal accepts that the applicant’s detention has caused him, his wife and their children considerable hardship. The Tribunal accepts the applicant’s wife’s evidence at the hearing that, despite the significant interference in her marital affairs by her mother and ensuing conflicts, she had found the applicant to be a good husband and father to their [children]. The Tribunal accepts her evidence that the applicant had provided much support and assistance to her following the birth of [the older children] and that all [the] children are attached to him. His detention and separation from her and her children has caused them all psychological grief and emotional anxiety. She no longer has a relationship with her own family and she has been left to look after [children] on her own without any support, including financial support. In his evidence, the applicant also stated that there is strong attachment between him and his children. They cry whenever they visit him in detention and they do not want to leave.