2014052 (Refugee) - [2023] AATA 995

2014052 (Refugee) [2023] AATA 995 (10 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Galen Jaffurs
CASE NUMBER: 2014052

COUNTRY OF REFERENCE: Stateless
MEMBER:Denis Dragovic
DATE:10 February 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 10 February 2023 at 3:01pm
CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – risk to the Australian community – applicant sentenced to a Youth Supervision Order – intellectual disability – previously subjected to family violence – crime age patterns – adolescent development – power to cancel the visa does not arise – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.41
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 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 27 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old ethnic Rohingya who is stateless. He arrived alone in Australia as an unauthorised maritime arrival. At the time he was a minor aged [age]. At the age of [age] he committed rape against another minor and was sentenced without conviction to a Youth Supervision Order.
The delegate cancelled the visa under s 116(1)(e)(i) on the basis that the applicant was charged and sentenced without conviction of two counts of rape against a minor alongside other transgressions. As a result, the delegate found that the applicant is or may be a risk to 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 November 2022 and 13 December 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.
Mental Health
As is detailed further below, the applicant has been assessed at various times with ‘mild intellectual disability’, ‘extremely low range of cognitive ability’ or ‘intellectual disability’. For the purposes of this hearing understanding the applicant’s prior assessments was relevant in the approach taken.
Included in the Departmental file was a 2016 assessment by Assessments Australia for the purposes of assisting teachers and…

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 2014052 (Refugee)

Details

AGLC: 2014052 (Refugee) [2023] AATA 995
Case: [2023] AATA 995
Decision Date: 10 February 2023

CaseChat Overview and Summary

The applicant, a protection visa holder, sought review of the Minister's decision to cancel his visa. The dispute centred on whether the applicant's presence in Australia posed a risk to the health, safety, or good order of the Australian community, as contemplated by section 116(1)(e)(i) of the Migration Act 1958 (Cth). The decision was made by Deputy President Denis Dragovic of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine if the Minister was satisfied that the applicant's presence in Australia constituted, or might constitute, a risk to the health, safety, or good order of the Australian community. This required an assessment of the applicant's past conduct, including criminal charges and convictions, in light of his intellectual disability, adolescent development, and history of family violence. The Tribunal also had to consider the meaning of "good order of the Australian community" as interpreted in previous case law.

The Tribunal considered the applicant's offending history, which included charges for possessing cannabis, rape, and unlawful assault, resulting in a Youth Supervision Order for the rape charges. It also took into account psychological assessments indicating an intellectual disability, though not to a degree that would negate criminal responsibility. The Tribunal noted that the applicant had matured since the assessments and that his engagement had improved. Applying the principles from *Tien v MIMA* (1998) 89 FCR 80, the Tribunal interpreted "good order" as relating to public order and activities that impact public life or disrupt the observance of the law. Despite the seriousness of the offences, the Tribunal was not satisfied that the ground for cancellation under section 116(1)(e)(i) was made out, finding that the power to cancel the visa did not arise.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 790 (Safe Haven Enterprise Visa) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Despite the applicant’s impairments I found that throughout both hearings he was engaged and responsive. I note that the assessments were undertaken when he was an adolescent and that he has since matured which has in turn, according to the most recent report from [Agency 1], seen his attention span and ability to engage increase substantially. 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). 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; 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. On 16 March 2020, two months after the applicant turned [age], he was provided a copy of the Notice of Intention to Consider Cancellation (NOICC). The NOICC outlined the applicant’s offending:1) [In] June 2016, you were spoken to by Victoria Police and charged with the offence of Possess Cannabis. You admitted to the offence, but in the circumstances, Victoria Police did not propose instituting legal proceedings against you. With your consent, you were issued a caution which was officially recorded.2) [In] April 2018, you were charged with two counts of rape following an incident that was alleged at the time to have occurred [in] August 2017. Victoria Police alleged that at [Suburb 1] [in] August 2017:a) You did intentionally sexually penetrate the victim by introducing your fingers into the victims vagina without her consent and without reasonably believing the victim consented to the penetration; andb) You did intentionally sexually penetrate the victim by introducing your penis into the victims vagina without her consent and without reasonably believing the victim consented to the penetration[In] September 2018, a psychological assessment was undertaken by a forensic psychologist in relation to your pending criminal justice proceedings. In a report dated [in] October 2018, the forensic psychologist confirmed you did not present with a mental illness and you were fit to stand trial. The psychologist also confirmed that while you were suffering from an intellectual disability at the time of the charges and that you experience general impairments in thinking and reasoning relative to your age peers, your impairment was not significant enough to compromise your ability to understand that sexual assault is wrong. Consequently, you did not qualify for a defence of mental impairment.The psychologist noted in the report you denied raping the victim, stating the victim had been smoking cannabis and initiated sexual contact with you. Victoria Police however advised the Department [in] April 2019, that you had provided and smoked cannabis with the [age] year old indigenous victim whist inside the garage of your residential house before suggesting sex.When the victim refused you grabbed her and held her down, removed her clothing and tried forcing oral sex. The victim again refused and struggled so you raped her vaginally whilst moving her into different positions. You then forced her to sit with you at the front of the house before allowing her to [leave].[In] October 2018 you plead guilty to both charges of rape and [in] December 2018 in [Court 1], you were sentenced without conviction to a Youth Supervision Order for a [period] to [specified date]All core Youth Supervision Order conditions were applied and the following special conditions were also applied to the order:- To be assessed for and if suitable, to complete the MAPPS program or other offence specific program of counselling and treatment- To comply with your disability support plan- To be assessed for psychological counselling and if suitable, to engage in that counselling- To be referred for appropriate training / skills education3) [In] April 2018, you were spoken to by Victoria Police and charged with the offence of Unlawful Assault. It was alleged you grabbed a female staff member at [Agency 2] and threw her to the ground before brandishing a knife at the victim and holding it to her stating “Never tell me what to do again”. You admitted to the offence but Victoria Police did not propose instituting legal proceedings against you. With our consent, you were issued a caution which was officially recorded.

Decision

Reasons for decision

Taking all of the supporting statements, oral evidence, written submissions and research into consideration I am 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. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.Denis DragovicDeputy President

Ratio Decidendi

Legal Principle Established

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