2013597 (Migration) - [2021] AATA 3060

2013597 (Migration) [2021] AATA 3060 (4 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2013597
MEMBER:James Lambie
DATE:4 August 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 04 August 2021 at 11:04am
CATCHWORDS
MIGRATION – cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) visa – risk to the health and safety of the Australian community – applicant convicted of an offense – sentence suspended – judgment of lower level of offending – lack of previous criminal history – no child affected by the offence – personal circumstances of applicant’s family – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994
Penalties and Sentences Act 1992 (Qld), s 9
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

This is an application for review of a decision dated 26 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the criminal offences with which he has been charged and convicted of show that his presence in Australia may be a risk to the safety of the Australian community. 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 22 July 2021 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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)(i) of the Act. 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?
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…

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 2013597 (Migration)

Details

AGLC: 2013597 (Migration) [2021] AATA 3060
Case: [2021] AATA 3060
Decision Date: 4 August 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the Bridging B (Class WB) visa of an applicant. The dispute arose from the Minister's satisfaction that the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, a ground for visa cancellation under section 116(1)(e)(i) of the Migration Act 1958 (Cth).

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Act was made out. This involved assessing whether the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community, or to the health or safety of individuals. The Tribunal also had to consider the relevant circumstances and government policy if the ground for cancellation was established.

The Tribunal reasoned that while the power to cancel a visa under section 116(1)(e) can arise on the possibility of risk, the expression "good order of the Australian community" requires an element of disruption to the administration of law or public disruption. In this case, the applicant had responded to an online advertisement, believing he was engaging with someone seeking assistance for a minor, but the advertisement was a sting operation by undercover police, and the minor was fictitious. The applicant was arrested when attempting to discuss the matter further. Despite this, the Tribunal found that the ground for cancellation under section 116(1)(e) was not satisfied.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 020 (Bridging B) visa and substituted a decision not to cancel the 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)(i) of the Act. 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? 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 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. The applicant arrived in Australia with his wife and [children] in January 2019. He has been in a relationship with his wife since 2012. They have [number] children aged [respective ages] years old. The applicant has a criminal record as follows: The offence was dealt with in the [specified court] [in] May 2021. [In] October 2020, the Tribunal issued a summons to the Queensland police service seeking production of documents relating to [the applicant’s] criminal history. This material was produced to the Tribunal [later] October 2020. It was put to the applicant for comment pursuant to s.359A on 27 October 2020. The response is noted below. The facts and circumstances surrounding [the applicant’s] offending are described in the police charge sheets, the delegate’s decision and the submissions provided by [the applicant’s] representatives. In brief, [the applicant] responded to an advertisement on an adult services website which read: “Aunt requesting some help with young niece coming of age. Discreet.” In the course of making contact with the purported advertiser, ‘[Ms A]’, he was made aware that the niece in question was 14 years old. The purported advertiser, on two occasions, elicited some details from him as to the sexual activities he proposed to engage in with the niece. On 11 November 2019, [the applicant] sought to meet the purported advertiser in a park at [a location] for the purposes of discussing these matters further, at which time he was arrested. The purported advertiser was an undercover police officer. The niece was fictitious.

Decision

Reasons for decision

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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 020 (Bridging B) visa.James LambieSenior Member

Ratio Decidendi

Legal Principle Established

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