2012825 (Refugee) - [2022] AATA 1545

2012825 (Refugee) [2022] AATA 1545 (5 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2012825
COUNTRY OF REFERENCE:                   Other
MEMBER:Antoinette Younes
DATE:5 May 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 785 (Temporary Protection) visa.
Statement made on 5 May 2022 at 2:34 PM
CATCHWORDS
REFUGEE – cancellation – protection visa – Other nationality – risk to community or individuals – charged with criminal offences – judicial order of no further proceedings – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)(i)
CASES
Gong v MIBP [2016] FCCA 561
MIMA 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant had been charged with an offence under New South Wales 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.
The applicant appeared before the Tribunal on 4 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages.
The applicant was represented in relation to the review.
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
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?
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.
Therefore, a visa may be cancelled under s 116(1)(e)…

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 2012825 (Refugee)

Details

AGLC: 2012825 (Refugee) [2022] AATA 1545
Case: [2022] AATA 1545
Decision Date: 5 May 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 785 (Temporary Protection) visa of an applicant. The Minister had initiated the cancellation process based on the applicant's presence in Australia posing a risk to the health, safety, or good order of the Australian community, as provided by section 116(1)(e)(i) of the Migration Act 1958 (Cth). This decision was made following the applicant being charged by NSW Police with aggravated sexual assault of a victim under 16 years.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e)(i) of the Act was made out, and if so, whether the visa should be cancelled. The Tribunal was required to consider the information before it, including the applicant's response to the Notice of Intention to Consider Cancellation and any subsequent developments regarding the criminal charges.

The Tribunal's reasoning focused on the impact of a subsequent court order. The applicant provided evidence of a District Court of NSW order from May 2021 directing "No Further Proceedings" in relation to the charges of aggravated sexual assault and intercourse with a child. Coupled with the applicant's statutory declaration confirming the charges were dropped, no outstanding charges, no prior convictions, and no breaches of migration laws, the Tribunal concluded that the basis for the cancellation decision was no longer valid. The Tribunal applied the principle that while a risk can arise from past events or possibilities, the subsequent judicial determination of no further proceedings effectively negated the grounds upon which the cancellation was considered.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Temporary Protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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? Section 116 provides:Power to cancel116. (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. Therefore, 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 information before the Tribunal indicates that [in early] 2020, the NSW Police charged the applicant with the offence of “Aggravated sexual assault victim under the age of 16 years, subsection 61 J (1), Crimes Act 1900”. NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) AND RESPONSE The Department sent to the applicant a Notice setting out the charge and indicating to the applicant that it appears that the ground for cancellation under s 116 (1)(e)(i) arises. The applicant responded to the Notice essentially denying the charge and suggesting that the prosecution’s case is weak. The delegate considered the information provided and on balance decided that the ground for cancellation arises and that the visa should be cancelled under s 116 (1)(e)(i).TRIBUNAL’S REVIEW The applicant provided to the Tribunal a copy of a Court order dated [May] 2021 indicating that His Honour Justice [A] of the District Court of NSW made the following orders:·In relation to the offence of Aggravated sexual assault – victim under the age of 16 years – order No Further Proceedings Directed.·In relation to the offence of Have intercourse with child >= 14 and <16 years – order No Further Proceedings Directed. The Tribunal received a Statutory Declaration of 23 March 2022 of the applicant, confirming that the charges against him have been dropped, that there are no outstanding charges against him of any kind, that he has never been convicted of any offence, and that he has not breached any migration laws or regulations.

Decision

Reasons for decision

Considering the above, the Tribunal 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 785 (Temporary Protection) visa.Antoinette YounesSenior Member

Ratio Decidendi

Legal Principle Established

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