2011986 (Migration)

[2021] AATA 154

2011986 (Migration) [2021] AATA 154 (15 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2011986

MEMBER:Kira Raif

DATE:15 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 444 (Special Category) visa.

Statement made on 15 January 2021 at 2:18pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to good order of Australian community – criminal charges – found not guilty on most charges – guilty plea with no conviction recorded on one charge – discretion to cancel visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10(1)(a)

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 20 July 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of New Zealand and the US. He was last granted the Special Category Subclass 444 visa in June 2019. In May 2020 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC, the Notice) because the delegate formed the view that there are grounds for cancelling his visa under s. 116(1)(e ) of the Act. The applicant provided his response to the NOICC and his vias was cancelled on 20 July 2020. The applicant seeks review of the delegate’s decision.

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. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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.

5. 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].

6. 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.

   Does the ground for cancellation exist?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant first arrived in Australia in March 2008. In August 20019 he was charged with the following offences:

   a.Have  sexual intercourse with child (14 – 16 years of age) – 5 counts

   b.Possess / attempt to, anabolic or androgenic steroidal agent.

8. The circumstances leading to the charges are set out in the primary decision record. Essentially, it is alleged that the applicant met the victim on [a dating site] and engaged in unprotected sex. When the applicant was arrested, the police searched his premises. It is stated that the police found four vials of testosterone.

9. In his written response to the NOICC the applicant stated that he pleaded not guilty and was granted conditional bail by [a] Court. He was supported by his family, friends and his employer during the bail application and attested to his good character. The applicant presented to the delegate a number of character references. The applicant notes that the judge considered protection of the community before granting bail and it was determined that he did not pose an unacceptable risk to the community. The applicant notes that if he was to breach bail, his parents may lose the bond of $50,000 and he has fully complied with bail conditions. The applicant states in response to the NOICC that  a presumption of innocence must apply and the allegation remain unproven and he does not believe his visa should be cancelled until the matter is determined at trial.

10. The Tribunal wrote to the applicant in January 2021 seeking outcome of the criminal proceedings. The applicant informed the Tribunal on 15 January 2021 that he was found not guilty of the five counts of sexual intercourse with a minor. He pleaded guilty to the possession of anabolic or androgenic steroidal agent but there was no conviction recorded pursuant to s. 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.  The applicant provided to the Tribunal a copy of the Advice of Court Results.

11. While the Tribunal acknowledges that the applicant has been found guilty of one offence, the Tribunal is mindful that no conviction has been recorded and that offence appears to be fairly minor. In the Tribunal’s view, it is insufficient to form a basis for the cancellation. Significantly, the applicant was found not guilty of the other offences which were the basis for the delegate’s findings.

12. Having regard to the outcome of the criminal proceedings, the Tribunal does not consider that the ground for cancellation has been made out. 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

13. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

    Kira Raif
    Senior Member