1936031 (Refugee)

[2022] AATA 1272

1936031 (Refugee) [2022] AATA 1272 (23 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1936031

COUNTRY OF REFERENCE:                   Iraq

MEMBER:Antoinette Younes

DATE:23 March 2022

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 23 March 2022 at 3:31 PM

CATCHWORDS

REFUGEE – cancellation – protection visa – Iraq – applicant charged with offences  – risk to health, safety or good order of the Australian community – not guilty verdict and other charge dismissed – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, s 116

CASES

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

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

1. This is an application for review of a decision dated 18 December 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 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(e)(ii) on the basis that the applicant has been charged with offences under NSW laws. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.    The applicant appeared before the Tribunal at 11.00 am on 23 March 2022 to give evidence and present arguments.

4.    The applicant was represented in relation to the review.

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

1. 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?

7. Section 116 provides:

Power to cancel

116. (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)  the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii)  the health or safety of an individual or individuals.

8.    The delegate’s decision record indicates that information from NSW Police indicates that [in] February 2019, the applicant allegedly engaged in violent and threatening behaviour against his wife, Mrs X.  On 21 March 2019, the applicant was charged by the NSW Police with the offences of sexual intercourse without consent (DV) and destroy or damage property less than or equal to $2000.  The delegate’s decision record sets out the circumstances that led to the charges.

NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) AND RESPONSE

9.    On 31 October 2019, the Department sent the applicant a NOICC, to which he responded on 18 November 2019.  In his response, the applicant denied the allegations and noted that he would be defending the charges.  He argued that he should be presumed innocent unless or until proven otherwise.

SUBSEQUENT EVENTS

1. The Tribunal received information from the applicant indicating that on [date] August 2020, the District Court of New South Wales ordered the following:

• In relation to the offences of sexual intercourse without consent and destroy or damage property <=$2000-T2, the Jury returned verdicts at [time] on [date] August 2020 that the accused is found not guilty and is acquitted.   

• The charge relating to the offence of stalk/intimidate intend fear physical etc harm (domestic)-T2 was dismissed.

1. During the hearing, the applicant confirmed the Jury’s verdicts of not guilty and the dismissal. He confirmed that there are no other charges pending.

2. It is not open to this Tribunal to go beyond the findings of the sentencing Court[1].  The Tribunal must accept that the applicant was found not guilty of the offences of sexual intercourse without consent and destroy or damage property <=$2000-T2, and that the charge of stalk/intimidate intend fear physical etc harm (domestic)-T2 was dismissed. 

   [1] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234.

3. There is no evidence before the Tribunal to suggest that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. For those reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(e)(ii) exists. It follows that the power to cancel the applicant’s visa does not arise.

DECISION

1. 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.

Antoinette Younes
Senior Member