2109056 (Refugee)

[2023] AATA 1178

2109056 (Refugee) [2023] AATA 1178 (17 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Kevin Williams-Besy

CASE NUMBER:  2109056

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Denis Dragovic

DATE:17 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 785 (Temporary Protection) visa.

Statement made on 17 February 2023 at 8:52am

CATCHWORDS

REFUGEE – cancellation – protection visa – stateless – risk to the health or safety of an individual – applicant charged with several offences – applicant found not guilty – valid notification of a cancellation – character test requirement – Bridging Visas subsequently granted – updated National Police Certificate – further charges against the applicant withdrawn – power to cancel the visa does not arise – decision under review set aside

LEGISLATION

Migration Act 1958, ss 107, 116, 127
Migration Regulations 1994, Schedule 4, Public Interest Criterium 4001

CASES

Minister for Home Affairs v Parata [2021] FCAFC 46

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 25 September 2018 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)(ii), a clause that gives the power to the Minister to cancel a visa if the Minister is satisfied that the visa holder ‘is or may be, or would or might be, a risk to the health or safety of an individual or individuals’ on the basis that the applicant had been charged with a range of offences.

3. The issue in the present case is firstly, whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant was represented in relation to the review.

5. It is important to note why this case has taken such a long period of time to be considered by this Tribunal.

6. Arising from a separate matter in Minister for Home Affairs v Parata [2021] FCAFC 46 the full bench in an unanimous finding concluded that a valid notification of a cancellation decision under s 127 must state whether it is reviewable under Part 5 or Part 7 of the Act. If this information is not included in the notification, then it will not be a valid notification under the Act and the prescribed period for applying for review will not have started to run.

7. The Minister appealed the decision to the High Court but on the 10 December 2021 the High Court of Australia refused the application.

8. As a result of Parata and that the applicant’s notification did not include information on the part under which the cancellation was made, the notification was not a valid notification. For this reason, the countdown on the 28-day time limit for lodging appeals to the Tribunal had not started as the previous notification was invalid and the applicant had not received a new notification. Instead, as the decision by the High Court closed any further avenues of appeal the Department revisited their cancellation decisions and re-notified visa holders.

9. The applicant was not re-notified but according to Departmental records his visa remains cancelled. In Parata at [71] the plurality determined that ‘a valid application for review of a Part 5-reviewable decision can be made to the Tribunal at a time before the review applicant has received a notice that complies with s 127 of the Act.’ This is because s 127(3) of the Act states that ‘Failure to give notification of a decision does not affect the validity of the decision.’

10. As such the appeal is a valid application on the basis of the notification being invalid but the original cancellation valid.

11. 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

12. 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)(ii).

    the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (ii) the health or safety of an individual or individuals; or

13. 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?

14. The applicant received a Notice of Intention to Consider Cancellation (NOICC) on 10 October 2017 and the visa was cancelled on the 25 September 2018.

15. It appears, though it is not clear from the Departmental file, that the applicant was not reissued a new NOICC as has been the practice in other cases. As such the NOICC dated 10 October 2017 remains the relevant notification under s 107.

16. The ground for cancellation identified in the NOICC included the following:

    a.Sexual intercourse without consent

    b.Stalk/intimidate intend fear physical harm

    c.Aggravated sexual assault – deprive liberty

    d.Aggravated sexual assault – deprive liberty

    e.Aggravated sexual assault – inflict actual bodily harm on victim

    f.Common assault

17. The Minister’s delegate concluded that ‘these charges therefore indicate that your presence in Australia may be a risk to the health and safety of an individual.’ The individual being a woman known to the applicant.

18. There were no other reasons given for the grounds of the cancellation. The applicant did not appeal this decision to the Tribunal.

19. By an order of [a named judge] dated [in] February 2019 of [Court 1] ([file number]) in a jury trial the applicant was found to be not guilty of all charges.

20. In correspondence addressed to the Department on 27 May 2020, the applicant’s representative advised that the applicant had been acquitted of all the charges and that he does not have any criminal convictions and that evidence of this could be supplied if required.

21. In response, the Department replied on 3 July 2020 that the visa had been cancelled on the ‘grounds which were enlivened at the time’ and that the matter would not be revisited.

22. In a submission to the Tribunal the applicant’s representative provided information regarding the Department continuing after [Court 1’s] finding of the applicant being not guilty to repeatedly grant the applicant a Bridging Visa E which has a character test requirement under Public Interest Criterium 4001. The representative suggested that the Department no longer saw the applicant as a risk to the health and safety of the individual concerned.

23. In reviewing the movement records of the applicant, I note that the Department has granted the applicant ten Bridging Visas since June 2019.

24. As the basis upon which the applicant’s visa was cancelled, namely the existence of charges, was subsequently found by a court to be without merit and that the applicant was acquitted leads this Tribunal to give very heavy weight towards a finding that the applicant is not a risk to the health and safety of an individual.

25. As the consideration on appeal of a cancellation of a visa may have far reaching ramifications to the individual and community, through an abundance of caution, I requested that the representative provided a copy of an updated National Police Certificate.

26. Dated 4 October 2022 this certificate shows that in addition to the earlier mentioned acquittal, the applicant has pending charges with a court date [in] October 2020. A further note states, ‘At the date of issue, these charges have not been determined by a court.’

27. The charges are:

    a)Wilful damage/injure property

    b)Discharge stone to cause injury/danger

    c)Use a carriage service to harass

    d)Stalk another person (Crimes Act)

    e)Threaten to commit a sexual offence

    f)Criminal damage (intent damage/destroy)

28. In correspondence with the applicant’s representative, it was agreed that a hearing with this Tribunal would not proceed until after the applicant’s matter had been heard in court which was scheduled for March 2023.

29. In February 2023 the Tribunal received documents from the applicant’s representative regarding the pending charges. In summary all of the charges against the applicant had been withdrawn. A Notice of Order Made from [Court 2] was provided to the Tribunal showing that the all of the charges against the applicant had been withdrawn.

30. Considering that the original basis upon which the Department had cancelled the applicant’s visa, namely charges relating to sexual crimes, had been tested in court and the applicant found not guilty, that the Department has repeatedly provided the applicant with a Bridging Visa that allows him to remain in the community, and the second set of charges were withdrawn, there is no basis upon which the Tribunal can find the applicant poses a risk to the health and safety of an individual.

31. As there is no basis upon which to consider that the applicant poses a risk to the health and safety of an individual, 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

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

    Denis Dragovic
    Deputy President