2210233 (Refugee)

Case [2023] AATA 3312

2210233 (Refugee) [2023] AATA 3312 (14 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ganasan Arujunan

CASE NUMBER:  2210233

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Simone Burford

DATE:14 July 2023

PLACE OF DECISION:  Perth

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.

Statement made on 14 July 2023 at 2:48pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Sri Lanka – charged with serious criminal offence – risk to the health, safety or good order of the Australian community – charges discontinued – no reasonable prospect of securing a conviction – no history of prior offending – decision under review set aside  

LEGISLATION
Migration Act 1958 (Cth), ss 116 (1) (E), 119-121, 375 (A), 438
Migration Regulations 1994 (Cth), Schedule 2

CASES
Alam v MIMIA [2004] FMCA 583
CLF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 186
Djokovic v MICMSMA [2022] FCAFC 3
EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC (Div2) 729
Gong v MIBP [2016] FCCA 561
Krummrey v MIMIA (2005) 147 FCR 557
MIMIA v Ahmed (2005) 143 FCR 314
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Tien v MIMA (1998) 89 FCR 80
Twist v Randwick Municipal Council (1976) 136 CLR 106
Uddin v MIMIA (2005) 149 FCR 1
Zubair v MIMIA (2004) 139 FCR 344

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

  1. This is an application for review of a decision dated 8 July 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

    Background

  2. [The] review applicant, is a [age]-year-old Sri Lankan citizen. He first arrived in Australia [in] October 2012 as an Unauthorised Maritime Arrival. He was granted the Subclass 790 (Safe Haven Enterprise) visa on 2 August 2016. 

  3. On 9 June 2022, the Department of Home Affairs (the Department) issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa under s 116(1)(e)(i) on the basis information received from the Western Australian (WA) Police Force that the applicant had have been charged [in] May 2022 with Child Stealing under section 343(1) of the WA Criminal Code, and that, due to his alleged behaviour, his continued presence in Australia is or may be a risk to the safety of the community.

  4. The notice was sent to the applicant [in] Prison in Western Australia.  The applicant signed an acknowledgment of receipt of that document on 15 June 2022. He responded to the notice through his representative on 23 June 2022, initially…

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Details
AGLC
2210233 (Refugee) [2023] AATA 3312
Case
[2023] AATA 3312
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 790 (Safe Haven Enterprise) visa. The applicant, a Sri Lankan citizen, had his visa cancelled under section 116(1)(e)(i) of the *Migration Act 1958* (Cth) on the basis that his presence in Australia posed a risk to the health, safety, or good order of the Australian community. This decision followed the applicant being charged with Child Stealing in May 2022.

The primary legal issue before the Tribunal was whether the grounds for cancellation under section 116(1)(e)(i) were made out, and if so, whether the visa should be cancelled. This involved considering whether the applicant's alleged conduct, leading to the charge, constituted a risk to the Australian community, and then assessing the relevant circumstances for cancellation.

The Tribunal reasoned that while the ground for cancellation, as defined by section 116(1)(e)(i), could arise from a possibility of past events, the specific circumstances of this case warranted a different outcome. The applicant had been charged with Child Stealing, but the charges were subsequently discontinued as there was no reasonable prospect of securing a conviction. Furthermore, the applicant had no prior history of offending. The Tribunal acknowledged the significant hardship the applicant had endured due to his imprisonment and the visa cancellation.

Ultimately, the Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel it.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision dated 8 July 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa under s 116 of the Migration Act 1958 (Cth) (the Act).Background [The] review applicant, is a [age]-year-old Sri Lankan citizen. He first arrived in Australia [in] October 2012 as an Unauthorised Maritime Arrival. He was granted the Subclass 790 (Safe Haven Enterprise) visa on 2 August 2016. On 9 June 2022, the Department of Home Affairs (the Department) issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa under s 116(1)(e)(i) on the basis information received from the Western Australian (WA) Police Force that the applicant had have been charged [in] May 2022 with Child Stealing under section 343(1) of the WA Criminal Code, and that, due to his alleged behaviour, his continued presence in Australia is or may be a risk to the safety of the community. The notice was sent to the applicant [in] Prison in Western Australia. The applicant signed an acknowledgment of receipt of that document on 15 June 2022. He responded to the notice through his representative on 23 June 2022, initially to seek an extension of time. He was granted an extension of time to respond until 30 June 2022. He provided a substantive response to the notice via his representative on that date. On 8 July 2022 the delegate cancelled his visa under s 116(1)(e)(i) on the basis that the applicant had been charged as set out in the NOICC. The delegate found there were grounds for cancellation of the applicant’s visa as the delegate considered his presence in Australia is or may be a risk to the health or safety of the Australian community. On 14 July 2022, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for a review of that decision. ISSUE The issue in the present case is whether the grounds for cancellation of the applicant’s visa are made out, and if so, whether his visa should be cancelled. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.PROCEEDINGS BEFORE THE TRIBUNAL The applicant was represented in relation to the review. The applicant’s representative attended via telephone a case management hearing held on 14 June 2023. At the case management hearing, the Tribunal discussed with the representative the evidence and submissions the applicant planned to provide in support of the application.Notice of Intention to Consider Cancellation (NOICC) As noted above, the Department issued a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa on 9 June 2022. The notice was sent to the applicant [in] Prison. The applicant signed an acknowledgment of receipt of that document on 15 June 2022 for hand delivery. In this case, the fact of the applicant’s imprisonment appears to have become known to the Department via another Commonwealth agency. The details of that information were the subject of the s 375 certificate on the Department file.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant has been deprived of his liberty for an extended period. This has no doubt caused him significant hardship. While the Tribunal does not consider the original cancellation was without grounds, it recognises the impact cancellation has had on the applicant and acknowledges the strain it has placed on him and his family in Sri Lanka.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.Simone BurfordSenior Member

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied the s 438 certificate was validly issued. As discussed with the applicant at the second hearing, the Tribunal considered the material covered by the certificate was largely historical and was covered by other material elsewhere on the file. The applicant did not seek access to the documents, and given public interest raised in the certificate the Tribunal decided not to exercise its discretion to release the information. In any event, the Tribunal did not consider that the information covered by the certificate added anything to its consideration of the issues arising on review or that it would be the reason or part of the reason for affirming the decision under review.CONSIDERATION 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). 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?s 116(1)(e) – risk to Australian community or individual 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.[4][4] 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. According to the delegate’s decision and the material before the Tribunal, the applicant was charged [in] May 2022 with Child Stealing under section 343(1) of the WA Criminal Code (Person forcibly/fraudulently takes/entices away/detains a child U/16). It was alleged that on the afternoon of [date] May 2022 the applicant was at his home located in a Perth suburb, which is situated directly opposite a [park].