2204377 (Migration) - [2022] AATA 1456

2204377 (Migration) [2022] AATA 1456 (4 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2204377
MEMBER:Kate Millar
DATE:4 April 2022
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Statement made on 04 April 2022 at 2:55pm
CATCHWORDS
MIGRATION – cancellation – Bridging A (Class WA) visa – Subclass 010 (Bridging A) – granted in conjunction with application for review of refusal of protection visa – risk to Australian community, in particular women – criminal charges and convictions – imprisonment and immigration detention – other charges dropped – mental and physical health affected by attack in prison and protective custody – no health records provided – treatment, rehabilitation and educational courses, and participation in religious and artistic groups – discretion to cancel visa – guarded prospects for rehabilitation – care for sister’s children – financial support for family in home country – possibility of applying for another subclass bridging visa or lengthy detention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA, 367
Migration Regulations 1994 (Cth), r 4.27
CASES
Gong v MIBP [2016] FCCA 561
MICMSMA v Parata [2021] FCAFC 46
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Papua New Guinea who came to Australia on a tourist visa in March 2016. He subsequently applied for a protection visa which was refused by a delegate of the Minister, and he is waiting for his application for a review of this decision to be heard.
As his protection visa application was not finally determined, [the applicant] was granted a Subclass 010 (Bridging A) visa on 10 June 2016.
On 23 March 2017, [the applicant] was charged with assault with intent to commit a sexual offence, stalking, unlawful assault, and sexual assault. As a result, on 9 May 2017 a delegate of the Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs cancelled his bridging visa on the basis that he is or may be a risk to the health, safety or good order of the Australian community, or a segment of the Australian community.
The notification of the delegate’s decision was defective because the notification of the decision did not specify whether [the applicant] could seek review under Part 5 or Part 7 of the Act as required by s 127(2)(b) of the Migration Act 1958 (the Act).[1]
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
[The applicant] was notified a second time of the cancellation of his visa on 24 March 2022, and he applied for a review of this decision. Under s 367 of the Act, and reg 4.27 of the Migration Regulations 1994 (the Regulations), the Tribunal must make a decision on the review 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 2204377 (Migration)

Details

AGLC: 2204377 (Migration) [2022] AATA 1456
Case: [2022] AATA 1456
Decision Date: 4 April 2022

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to cancel the applicant's Subclass 010 (Bridging A) visa under section 116(1)(e) of the Migration Act 1958 (Cth). The delegate had cancelled the visa on the grounds that the applicant had been charged with certain offences and posed a risk to the health and safety or good order of the Australian community, particularly women. The applicant had been granted the bridging visa in conjunction with an application for review of a refusal of a protection visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1)(e) was established. This required the Tribunal to determine if the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community or a segment of it. If this ground was established, the Tribunal then had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including government policy.

The Tribunal found that the ground for cancellation was established. The applicant had been charged with, and subsequently convicted of, common assault and assault with intent to commit a sexual offence, arising from an incident at a train station involving a young woman. The sentencing remarks described the applicant's actions as involving persistent following, grabbing, attempting to pull down the victim's pants, and cornering her. The Tribunal inferred from these facts and the applicant's criminal convictions that he posed a risk to the health and safety of the Australian community, and in particular, women. In considering the exercise of discretion, the Tribunal noted the applicant's mental and physical health issues, exacerbated by an attack in prison and subsequent immigration detention, and the lack of health records. It also considered the applicant's stated responsibilities, including caring for his sister's children and providing financial support to his family overseas, as well as the alternative of lengthy detention if the visa were cancelled.

Ultimately, the Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 010 (Bridging A) visa. The Tribunal concluded that, despite the mitigating factors presented, the circumstances as a whole warranted the cancellation of 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 affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE This is an application for review of a decision dated 9 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s visa under s 116 of the Act. 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. The delegate cancelled the visa under s 116(1)(e) on the basis that [the applicant] had been charged with certain offences and is or may be a risk to the health and safety or good order of the, or a segment of the Australian community. The issue is whether this ground for cancellation is made out, and if so, 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.[2] [2] Gong v MIBP [2016] FCCA 561, at [41] The notice of intention to cancel [the applicant]’s visa states that on 23 March 2017 [the applicant] was charged with assault with intent to commit sexual violence, stalk another person, unlawful assault and sexual assault. The charges are stated to relate to an incident that occurred with a member of the community at [a] Train Station. [The applicant] has since been found guilty and sentenced in the [court] for one count of common assault and one count of assault with intent to commit a sexual offence and sentenced to five years’ imprisonment.[3][3] [Source redacted] The facts are described by [the Judge][4] as follows:The victim in this matter was a young woman. She was new to Melbourne and did not really understand the train system, and accidentally ended up at [a] railway station after the trains returning to Melbourne had stopped. Thus she was alone at the station waiting for the first train, which was not until 5 am. You approached her at about 2:15 am and started talking to her. She found you strange and did not like the way you were talking, so moved away. You followed her and would not leave her alone. She returned to sitting on a bench, and you sat next to her and stroked her back. She told you to leave her alone and got up and walked away. You continued to follow her. CCTV footage from the railway station shows her moving away from you and you following her on a number of occasions around [the] railway station.At one point you grabbed her and attempted to hold her arm. This can be seen on the CCTV footage. Although you pleaded not guilty to this offence, your counsel effectively conceded to the jury that it was proven. The victim broke free when you attempted to grab her, and can be seen trying to wave for help in front of the CCTV cameras. At one point she threw her mobile phone at you in an attempt to stop you following her. She then made her way to the foyer area and went to a payphone to call 000, but dropped the payphone as you advanced. You then placed her mobile phone on the ground and she retrieved it. She used her phone to call emergency services and was able to speak to them briefly.You continued to follow her and cornered her, grabbed her and threw her to the ground. You got on top of her and said things like, “Just take it”. You tried to pull down her pants and she was trying to fight you off. She was screaming so you put your hand over her face at one point to muffle her. She said it looked like you were trying to undo your own zipper.[4] at [2] to [4]

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 010 (Bridging A) visa.

Ratio Decidendi

Legal Principle Established

As a result, the Tribunal finds [the applicant] may be a risk to the health and safety of the Australian community, and in particular women in the Australian community, and that the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia [The applicant] arrived in Australia on a tourist visa. He applied for a protection visa and held a Subclass 010 visa pending the final determination of his protection visa application. His protection visa application was refused, and he has applied to the Tribunal for a review of this decision. As [the applicant] has applied for a protection visa which is not finally determined, he will remain in Australia until this occurs. If the decision to cancel [the applicant]’s bridging visa is set aside, he will no longer be an unlawful non-citizen and will be released into the community. Consistent with the tenor of this consideration, the Tribunal has considered if he has a compelling need to remain in the Australian community with a bridging visa, rather than in immigration detention until his protection visa application is finally determined. [The applicant] suffers from PTSD and psychotic symptoms. No health records were before the Tribunal, and [the applicant] said this formed part of the material that has not been released to him from [the] Prison. The Tribunal does not have the advantage of any information about his diagnosis, treatment and prognosis, and no independent information on the effect of being in immigration detention on his mental health. If the visa is cancelled, [the applicant] will remain in immigration detention until his application for a protection visa is finalised. The sentencing remarks of [the Judge] state that due to [the applicant]’s PTSD and positive psychotic symptoms that a sentence of imprisonment will weigh more heavily on him than it would on a prisoner of normal health, and his symptoms have worsened in custody as a result of being attacked.[10] The Tribunal infers that a period in immigration detention will also weigh more heavily on [the applicant] than on a person who is of normal health. [10] at [34] His sister [Ms A] states she needs him at home to help her care for her three children. [Ms A] is a registered nurse and has three children who are, [age], [age] and [age] old. Her partner is in Papua New Guinea, and she states he will come to Australia when he can travel here as his travel has been limited by COVID. Her partner has applied for a visa to come to Australia. [Ms A] says that when [the applicant] was living with her, he helped with cleaning and taking the children to school. She says that while he has been in prison and immigration detention it has been stressful for her and her children as they are emotionally attached to [the applicant].