2207295 (Refugee) - [2023] AATA 4377

2207295 (Refugee) [2023] AATA 4377 (4 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Roya Majd (MARN: 0701239)
CASE NUMBER: 2207295

COUNTRY OF REFERENCE: Iran
MEMBER:James Lambie
DATE:4 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) Visa.

Statement made on 04 October 2023 at 3:08pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – risk to the health or safety of individuals – applicant charged with serious criminal offences – domestic violence – partner requested most charges be dropped – best interests of the children would be served, rather than hindered, by cancellation – indefinite detention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 46, 48, 116, 140, 189, 197, 198, 375A, 438, 424A
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013
CASES
COT 15 v MIBP (No 1) [2015] FCAFC 190
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 18 May 2022 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 delegate cancelled the visa under s 116(1)(e)(ii) on the basis that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health of safety of an individual or individuals. 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 information before the delegate was that the applicant had been charged with the following criminal offences [in] November 2021:
·[in] October 2021 Common assault (domestic violence offence);
·[October] 2021 Assault occasioning bodily harm (DV);
·[October] 2021 Threatening violence – discharge firearm or other act (DV);
·Between [October] and [November] 2021 Using a carriage service to menace, harass or cause offence;
·Between [October] and [November] 2021 Contravention of domestic violence order;
and that he was further charged [in] December 2021 with:
·     Rape (between [December] 2017 – [April] 2018; between [April] 2018 – [June] 2018; between [December] 2020 – [February] 2021; on [a day in] December 2021; and [later in] December 2021) (domestic violence offences);
·     Common assault (6 counts between [May] 2018 – [November] 2021) (DV);
·     Deprivation of liberty – unlawfully detain/confine (between [December] 2019 – [January] 2021) (DV);
·     Strangulation/choking/suffocation (2 counts between [December] 2020 – [February] 2021) (DV);
·     Assault occasioning bodily harm (between [December] 2020 – [February] 2021) (DV);
·     Contravene domestic violence order (6 counts between [December]…

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 2207295 (Refugee)

Details

AGLC: 2207295 (Refugee) [2023] AATA 4377
Case: [2023] AATA 4377
Decision Date: 4 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a decision to cancel the visa of an applicant from Iran. The dispute arose from the Minister's power to cancel a visa under section 116 of the Migration Act 1958 (Cth), specifically on the grounds that the visa holder's presence in Australia may be a risk to the health or safety of individuals. The applicant had been charged with serious criminal offences, and the Tribunal was required to determine whether the grounds for cancellation were made out and, if so, whether to exercise the discretion to cancel the visa.

The Tribunal was tasked with determining if the applicant's presence in Australia posed a risk to the health or safety of individuals, as contemplated by section 116(1)(e)(ii) of the Act. This involved assessing the nature and potential impact of the criminal charges, even if some had been dropped. Furthermore, the Tribunal had to consider whether, having found grounds for cancellation, the visa should be cancelled by weighing various factors, including the applicant's circumstances, the best interests of his children, and the representations made by his partner.

In its reasoning, the Tribunal applied the principles established in cases such as *Gong v MIBP* and *Tien v MIMA* regarding the interpretation of "risk" and "good order." It found that the ground for cancellation under section 116(1)(e)(ii) was satisfied, noting that the power to cancel can arise on the possibility of past events. The Tribunal then considered its discretion, acknowledging that while the applicant had strong paternal bonds with his children and his partner expressed positive sentiments, it gave these representations cautious weight. This caution was informed by police notes indicating the partner had been asked to withdraw charges and the recognised context of domestic violence cases where victims may seek to preserve relationships. The Tribunal also noted the applicant's arrival as an unauthorised maritime arrival and the expiry of his previous visa, concluding that his purpose for travel had ended.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 790 (Safe Haven Enterprise) Visa. It concluded that the factors favouring cancellation outweighed those against it, leading to the decision to uphold the cancellation.

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 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). 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. At the hearing of 18 October 2022, the Tribunal asked the applicant’s representative if she could advise the status of certain criminal charges which were pending at the time of the delegate’s decision. The representative advised that most, or all, of the charges had been dropped. The Tribunal said that, if the applicant’s case was that the charges had been dropped, it would need to see some written confirmation. The representative said that it had been hoped to have that confirmation from the prosecutor by the time of the hearing but that it had not arrived. The Tribunal asked if, in that case, the applicant was ready to proceed given that he was submitting that the charges were baseless. The applicant requested an adjournment until confirmation of the status of the charges had been received. The Tribunal said that it would grant the adjournment on that basis but advised that, before doing so, it was bringing to the applicant’s attention that the Department’s file contained material that was covered by a certificate under s. 375A of the Act. It advised that the certificate claimed that the disclosure of certain documents named in it were subject to confidentiality obligations or public interest immunity. The Tribunal advised that the documents were provided to the Department by the Queensland police and consisted of criminal history material which had also been seen by the applicant and communications between the Department and the police which did not appear to be relevant to the application. The Tribunal indicated that it had not yet formed a view on the validity of the certificate[1] but that it did not propose to have regard to the material covered by the certificate, other than the criminal history material itself. The representative told the Tribunal she was content with that proposal. A resumed hearing scheduled for 17 November 2022 was postponed at the applicant’s request because the evidence he was seeking to submit was not yet available.[1] The Tribunal subsequently determined the certificate to be invalid because s 375A does not apply to Part 7 reviewable decisions. On 15 March 2023, the Department revoked the certificate and issued a certificate over the same material under s 438(1)(a). The Tribunal determined the certificate to be valid and provided a copy of it to the applicant’s representative on 17 March 2023 with a description of the material covered by it and an invitation to comment upon its validity. The Tribunal’s view as to the relevance of the material was unchanged.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the factors in favour of cancellation outweigh those against it and that, therefore, the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) Visa.James LambieSenior Member

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1(e)(ii) 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 [in] March 2013 as an unauthorised maritime arrival. He was subsequently granted a subclass 790 Safe Haven Enterprise visa for a period of 5 years which expired [in] October 2021. His application for a further subclass 790 visa was refused on 21 March 2022, this decision being affirmed by the IAA [in] March 2022. On the information available to the Tribunal, the purpose of [the applicant’s] travel to Australia has ended. There, are however, other issues relevant to his claims to need to stay in Australia, which are dealt with individually below.I have given this factor a neutral weighting, subject to my observations on other factors The extent of compliance with visa conditions The delegate found that [the applicant] had complied with the conditions of his visa and gave this consideration a little weight. I have done the same.The degree of financial, psychological, emotional or other hardship that may be caused The Tribunal asked the applicant at the hearing on 16 February 2023 about the hardship that might be caused to himself, [Partner A], and the children if the visa was cancelled. He said that, in relation to [Partner A], it was really a matter for her to decide because there is a DVO in place. In relation to the children, he could not face being apart from them. He said it would be hard on him, the children, and [Partner A]. The Tribunal reminded [the applicant] that it had, on each of the two previous hearing dates, asked if he might consider submitting his bank statements so that the Tribunal could see the extent of the financial support he was providing the family. It noted that he had not submitted any such material. He said he had submitted tax returns which showed that he had been in receipt of a stable income. The Tribunal suggested that if bank statements were made available, there would be a means of seeing the extent to which he had supported the family. The Tribunal put it to him that his 2022 tax return (questions IT7 and IT8) had claimed no child support and no dependent children. He said he did not know about making such claims. The Tribunal put it to him that he had engaged a tax agent to complete his return. The Tribunal has considered the written representations from [Partner A]. In her statutory declaration of 5 November 2022, she states:[The applicant] is a very loving, kind and hardworking man. He is selfless and considerate of how the children and I are. [The applicant] goes out of his way to make sure we are OK and always puts the children and I first. [The applicant] is a wonderful husband and father with great integrity. He is a loyal friend and partner.The children and I need [the applicant] in our lives. It would be heartbreaking if he wasn’t returned to us. We all miss him dearly, including my immediate family …She expresses similar sentiments in her letter of 27 January 2022 and her email to the DPP [in] February 2022 (quoted at paragraph 17). Against this, I give consideration to the police notes of [January] 2022 and following (see paragraph 26) which indicate that she approached police before these letters were written to advise that requests had been made of her to withdraw the charges. While the Tribunal accepts that [the applicant] has strong paternal and reciprocal bonds with his young sons, it is inclined to treat [Partner A’s] representations with caution. A perceived need to preserve the relationship between the children and the perpetrator is a recognised as common context or reason for non-disclosure or withdrawal of domestic violence complaints[5]. [Partner A] was not available to address this concern at the hearing.[5] Ibid