2009285 (Migration)

[2021] AATA 1740

2009285 (Migration) [2021] AATA 1740 (28 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2009285

MEMBER:R. Skaros

DATE:28 April 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 489 - Skilled - Regional (Provisional) visa.

Statement made on 28 April 2021 at 11:34am

CATCHWORDS
MIGRATION – cancellation – Skilled Regional Sponsored (Provisional) (Class SP) visa – Subclass 489 (Skilled - Regional (Provisional)) – risk to safety of segment of Australian community – criminal charges – acquitted by jury – apprehended violence application withdrawn by police – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e), 360(2)(a)

CASE
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 2 June 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.116 of the Migration Act 1958 (the Act).

2. On 6 May 2020 the applicant was issued with a Notice of Intention to Consider Cancellation under s.116(1)(e) of the Act (the notice) after the applicant was charged with criminal offences by NSW Police.

3. On 11 May 2020 the Department received a response from the applicant’s solicitor stating that the applicant has pleaded not guilty to the charges, that they had still not received the brief of evidence upon which the charges were based and that it would be unreasonable for the applicant’s visa to be cancelled without the allegations being tested by the court.

4. On 2 June 2020 the delegate cancelled the applicant’s skilled visa under s.116(1)(e) on the basis that that the presence of the applicant in Australia is or may be a risk to the safety of a segment of the Australian community, specifically children.

5. The applicant provided a copy of the delegate’s decision record to the Tribunal.

6. The applicant was represented in relation to the review by his registered migration agent.

7. The matter was constituted to the present Tribunal for consideration on 18 March 2021.

8. On 19 March 2021 the applicant’s representative informed the Tribunal that the applicant has been acquitted by a jury of the charges against him.

9. On 21 April 2021 the Tribunal was also informed that the apprehended violence application against the applicant had now been withdrawn by NSW Police.

10. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

11. 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

12. 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.

13. The issue in this present case is whether the ground of cancellation is made out, and if so, whether the visa should be cancelled.

    Does the ground for cancellation exist?

14. 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].

15. 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.

16. The applicant in this case is a citizen of [country]. He is [age] years of age. He arrived in Australia in 2012 as the holder of a Student visa. After completing his studies, the applicant applied for the Skilled Regional Subclass 489 visa. That visa, which is the subject of this review, and was granted on 30 October 2018.

17. At the time of the charges, the applicant was employed as [an occupation] with an agency.

18. The notice indicates that [in] April 2010 the applicant was arrested and charged with sexual intercourse with a child 10 years or older (and under 14 years) and common assault. Subsequent evidence provided to the Tribunal indicates that the charge of common assault was dropped and replaced with the charge of intentionally sexually touching a child between 10 years and 14 years.

19. The statement of facts, which sets out the basis for the charges, alleges that the offences took place [in] February 2020 at a [place] where the victim was being cared for by the applicant on that occasion. The victim is [age] years of age. He has [developmental and mental health conditions]. The victim stated that he asked the applicant to assist him with turning on the shower, which the applicant did, and that the applicant returned after two minutes and told the victim that he was going to wash him. The victim alleged that the applicant, whilst wearing blue gloves on his hands, rubbed his hands all over the victim’s body including his upper legs, inner legs, stomach, and other parts of his body for about five minutes. The victim also alleged that the applicant had [detail deleted] whilst washing him. The victim stated that he froze, was worried and angry. He told police that after the applicant left the room, he continued to shower for about 10 minutes. After finishing his shower, the victim went to the lounge to watch TV. The statement of facts records that no further offences were disclosed from that evening.  

20. In submissions to the Department, the applicant strenuously denied the allegations and indicated that he would be pleading not guilty to the charges. The applicant was granted bail with very strict conditions, however, upon his release, the applicant was transferred to immigration detention.

21. In relation to the criminal proceedings, the representative informed the Tribunal in writing that a trial in respect of the two charges against the applicant is scheduled to take place over 5 days, [in] March 2021, at [location] District Court and a request was made for the Tribunal to await the outcome of the trial.

22. On [date] March 2021 the representative informed the Tribunal that on [date] March 2021, after two and a half days of hearing, a jury verdict was delivered acquitting the applicant of both charges based on a finding of not guilty. A copy of the jury’s verdict record was provided to the Tribunal.

23. On 16 April 2021 the Department granted the applicant a bridging E visa and he was released from detention into the community.

24. On 21 April 2021 the Tribunal received a copy an Order dated [April] 2021 issued by the NSW Local Court indicating that the apprehensive violence application against the applicant has been withdrawn by the NSW police and the matter has been dismissed.

25. The Tribunal has considered all the evidence before it and gives significant weight to the outcome of the trial where a jury has deliberated over the evidence and has found the applicant not guilty of the charges. The Tribunal also considers it favourable to the applicant that the apprehended violence application has been withdrawn by NSW police as this suggests that the police no longer consider the applicant to be a threat to the community or an individual. The Tribunal further notes that there is no evidence before it which indicates that the applicant has a criminal history or that he has been charged with any other criminal offences in the past.

26. Having carefully considered the evidence before it at this time, the Tribunal is not satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety of the Australian community or a segment of the Australian community or an individual.

27. 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

28. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    R. Skaros
    Senior Member