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

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 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. 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.

3. 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.

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

6. 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. 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].

9. 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

10. 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.

11. 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

12. 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.

13. 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.

14. During the hearing, the applicant confirmed that there are no other charges pending.

15. It is not open to this Tribunal to go beyond the findings of the Court[1].  The Tribunal must accept that there are no further proceedings against the applicant. 

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

16. 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, safety or good order of the Australian community or a segment of the Australian community. 

17. For those reasons, the Tribunal is not satisfied that the ground for cancellation in s 116(1)(e)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

18. Considering the above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.

    Antoinette Younes
    Senior Member