2210233 (Refugee) - [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

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.
As the NOICC was provided to the applicant in prison and there is no information before the Tribunal to suggest that address was provided to the Minister by the recipient for the purposes of receiving documents when the NOICC was issued, it appeared, following the decision in EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[1], there was likely a defect in the Departmental procedure with respect to the NOICC.
[1] [2022] FedCFamC (Div2) 729.
However, the case law suggests that with respect to a s 116 cancellation, the Tribunal can cure such a defect by applying its own procedural fairness rules.[2] This is not confined to curing a lack of procedural fairness but would extend to curing a failure to follow mandatory procedures under ss 119–121.[3]
[2] See Zubair v MIMIA (2004) 139 FCR 344 at [32]; MIMIA v Ahmed (2005) 143 FCR 314 at [3]; Uddin v MIMIA (2005) 149 FCR 1 at [55]–[58]; Krummrey v MIMIA (2005) 147 FCR 557. See also Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219.
[3] Alam v MIMIA [2004] FMCA 583 at [42], referring to Zubair v MIMIA (2004) 139 FCR 344 at [28], [32].
The issue of the potential defect in the NOICC and the Tribunal’s understanding of the capacity to cure the defect were discussed with the applicant’s representative at the second hearing on 5 July 2023. In this respect the Tribunal noted the Applicant’s response to the NOICC and fact the Tribunal put the issues raised in the NOICC to the Applicant at the hearing, providing the Applicant with a fair opportunity to respond to matters raised in the notice. The applicant’s representative was invited to make submissions with respect to those matters at the hearing or in post hearing submissions. However, the applicant’s representative had no submissions to make with respect to that issue.
Summons material
In order to confirm the status of the charges against the applicant, the Tribunal issued summons with respect to the applicant’s charges and any subsequent disposition of those charges to the Western Australian Police Force, the District Court of Western Australia and the Western Australian Director of Public Prosecutions.
The Tribunal notes the applicant’s representative submitted material to the Tribunal suggesting the charges had been discontinued [in] May 2023 (see below). The material produced to the Tribunal on summons addressed the status of the charges as submitted by the applicant. Iin light of this, the Tribunal did not consider that information would be the reason or part of the reason for affirming the decision under review. This was confirmed with the Applicant’s representative at the hearing.
Applicant’s submissions and evidence
On 5 July 2023, the Applicant attended a Tribunal hearing in person to give evidence and present arguments.
Prior to the hearing, the applicant submitted the following documents:
·A copy of the NOICC of the applicant’s visa dated 9 June 2022;
·A copy of the applicant’s response to the NOICC prepared by the applicant’s representative and Mr Overend, Counsel for the Applicant, dated 30 June 2022;
·A letter to the Delegate contending incorrect facts in the NOICC dated 30 June 2022;
·A copy of the Delegate’s decision record dated 8 July 2022 and the notification letter of the same date;
·A prosecution notice from Western Australian Police Force dated 30 May 2022;
·A statement of material facts dated 30 May 2022 with respect to the offence in the prosecution notice;
·A request for priority dated 29 May 2023;
·Written submissions dated 29 May 2023;
·District Court of Western Australia, Transcript of proceedings in Matter[citation deleted];
·District Court, Discontinuance of charges in indictment,[citation deleted].
Submissions and questioning focussed on whether there were grounds for cancellation. The Tribunal indicated that further submissions would be invited and a further hearing would be held. In light of the Tribunal’s findings on the grounds for cancellation a further hearing was not necessary.
Certificates
At the case management hearing on 14 June 2023, the Tribunal informed the applicant’s representative that the Department file included material which was the subject of a certificate issued under ss 375A of the Act. The Tribunal indicated that as the hearing was being held remotely, the Tribunal would write to the applicant providing copies of the certificates and inviting him to make submissions with respect to them following the hearing. This was done by letter dated 15 June 2023. That letter provided copies of the certificate and invited the applicant to make submissions with respect to the validity of the certificate. No submissions were received.
The Tribunal notes that the certificate issued under s 375A of the Act identified the relevant folios and stated that disclosure of the information contained in the identified folios would be contrary to the public interest because:
·it may disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law and for managing sensitive cases, which would or be likely to prejudice the effectiveness of those methods:
[File number deleted] 31/05/2022 Cancellation Referral
·where information was provided ‘in confidence’, the provider of the information has not consented to the disclosure of the information to the review applicant:
[File number deleted] 08/06/2022 Email from external agency
The Tribunal notes that following the issuing of the letter, the Tribunal formed the view that the certificate had been issued under the wrong part of the Act (Part 5 instead of Part 7 for a cancellation of a protection visa) and as a result appeared to be invalid. The Tribunal discussed this with the applicant’s representative at the hearing, noting that it proposed to write to the Department inviting them to consider the certificate prior to the Tribunal determining its validity. The applicant’s representative indicated support for this approach and noted in any event that it was difficult to make submissions on validity without viewing the documents.
The Tribunal wrote to the Department on 5 July 2023 and requested an urgent response. The Department responded on 6 July 2023 and revoked the s 375A certificate and issued a certificate under s 438 pf the Act with respect to the same documents and for the same reasons outlined previously. On the same day the Tribunal wrote to the applicant’s representative notifying the applicant of the revocation of the original certificate and the issuing of a new certificate. Copies of the certificates were provided. The applicant was invited to provide submissions with respect to the validity of the certificate. .
On 12 July 2023 the applicant’s representative indicated that:
Unfortunately, without knowing the actual documents that the department thinks would be contrary to the public’s interest to disclose, we are not able to comment on the validity of the disclosure certificate.
While the Tribunal understands the applicant’s difficulty (which had been raised and discussed at the hearing) the Tribunal took this to be the applicant’s submissions as to validity.
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].
It was alleged the applicant walked from his house to the park and approached the alleged victim, a [age]-year-old girl, and her [age]-year-old brother. It was alleged the applicant offered the alleged victim $50 for her bus fare with the intention of enticing her to his home. It was alleged he pulled her by her wrist and walked her to his house, while instructing her brother to stay at the park.
When they reached his house, he was no longer holding her by her wrist; he was walking some two meters in front of her and gestured her up his driveway and to the front door. After opening the front door, when the alleged victim hesitated, it was alleged he pushed her inside with both hands, causing her to fall down into the house.
It is then alleged the applicant then took the child into his bedroom and closed the door. She was in his bedroom for approximately two minutes before she was able to escape and walk back to her brother at the park. It was alleged that two minutes later the applicant left his house and returned to the park, following the alleged victim.
The alleged victim and her brother then left the park and went home.
On [date] May 2022 the alleged victim advised a worker at a youth centre what had occurred and the worker reported the matter to the police.
On [date] May 2022 the police arrested and charged the applicant and denied him bail. It is alleged he told the police he recalled the incident but denied the alleged victim had entered his house. The following day his case was heard in court and he was remanded in custody until 28 June 2022, when his next hearing was scheduled.
On the basis of that information, the delegate formed the view that the applicant’s presence in Australia may be a risk to the safety of a segment of the Australian community, namely children, because:
·     The WA Police Force brought the charges against the applicant, thereby indicating they consider there was a case for him to answer around these offences. The delegate considered them to be a reputable, credible source.
·     The court has determined the applicant would remain on remand pending his next hearing.
·     The applicant lived directly opposite the park where the alleged offending [occurred]. The applicant allegedly approached a child unknown to him and persuaded her into his home with a promise of money. He allegedly locked her against her will in his bedroom and, when she escaped, he followed her back to the park. The delegate considered this behaviour was likely to have a devastating impact on both the victim and her older brother.
·     The charges indicate the applicant allegedly lured a [age]-year-old girl from the park across the road from his house, into his house and into his bedroom against her will. The delegate considered that had she not managed to escape, it is unclear what his intentions were given he took her into his bedroom.
·     The Western Australian government recognises children and young people should be able to live where they are heard and valued, and are healthy and safe. The government and community are committed to the welfare and well-being of children and young people and ensuring they live in a healthy and safe environment. The delegate considered the applicant’s alleged behaviour is the type of behaviour they seek to avoid, and not behaviour that is considered acceptable in Australian society.
At the hearing, the applicant indicated that he had plead not guilty. He recalled the incident but said he had been walking in the park which he did in the afternoons when he was not working. It started raining and he ran to a covered area where there were 6-7 children playing. After 10 or 15 minutes the rain subsided. At that time the other children had gone except the boy or girl who asked him for money for bus fare. He told them he didn’t have any because his wallet was at home but that the house was nearby and if they came he would give them the money. He said they went to the house and the girl waited at the door and he went into his room which was only 1½ - 2 meters from the front door. When he went inside, he looked in his wallet and there were only four $50 notes. Because that was all he had, he gave one $50 note to the child and she took the money and went away. He left his wallet inside, came out the front door and was watching them. He saw them walk for a bit, then they went out of view. After a week, he got a call at his workplace from the Police and he told them where his work was and they came and arrested him. He had been in prison or detention since then.
Material produced on summons indicates that a trial was listed [in] March 2024. A hearing for prerecording of evidence was held in the District Court [in] May 2023. During the course of prerecording evidence from the children, inconsistencies arose which caused the hearing to be adjourned for the prosecution to consider its case. On 17 June 2023 a notice of discontinuance was signed by the prosecutor who had formed a view that there were no reasonable prospects of success. This was confirmed at a hearing before District Court Judge [name deleted], [in] May 2023. The prosecution confirmed at the hearing that there was no reason for the applicant not to be discharged following the notice of discontinuance.

Material produced on summons indicates no pending charges against the applicant in Western Australia. There is no information regarding any pending charges in any other jurisdiction.
Submissions indicated the Applicant had also been convicted of the following offences:
· [In] December 2017, driving without authority, and
· [In] January 2021 driving under the influence.
At the hearing the Tribunal asked if the applicant had been charged or convicted of any other offences in Australia or elsewhere. He said he had two driving offences. One was for driving on a Learner’s Permit without a supervising driver in December 2017 and the other charge was for driving under the influence in January 2021 when his licence was disqualified. This was consistent with official records. The Tribunal did not consider these offences to be serious in the overall context of the cancellation considerations.
The applicant told the Tribunal that he had worked for a significant time on a [location] for the same employer. His employer has offered him accommodation if his visa is reinstated and he is release from detention.
As already noted, s 116(1)(e) provides that a person’s visa may be cancelled not only where the visa holder’s presence in Australia “is” or “would be” a risk to the safety of the Australian community, but also where it “may be” or “might be”, thereby suggesting a very low threshold as to a future possibility. In Gong v MIBP, Judge Smith stated:
Simply put, the fact that sub-s.116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by sub-s.116(1)(e).
The Tribunal is mindful of the serious nature of the offence for which the applicant was charged. It was submitted by the applicant’s representative that the cancellation on the basis of this pending charge was not consistent with Departmental policy having regard to the nature of the offence as it was not one listed amount the examples in the Department’s Procedural Advice Manual (PAM). The Tribunal does not accept the submission to the extent it reads the PAM examples as an exhaustive list of circumstances where the required level of satisfaction may be met. The Tribunal considers that given the particular nature of the offence as alleged, the age of the child and the circumstances of the applicant at the time, the Tribunal does not consider the cancellation represented a departure from policy. Nor, in the Tribunal’s view, was there insufficient material before the delegate for them to have reached the required state of satisfaction for the grounds for cancellation to be met, notwithstanding the applicant’s entitlement to the presumption of innocence with respect to the charges.[5] The Tribunal notes also that the applicant was remanded in custody from the time the charges were laid through to the discontinuance. The Tribunal considers this reflected the relative seriousness of the charges considered in context.
[5] CLF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 186 at [34] and Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (Djokovic) at [19].
The applicant also submitted that the visa should not have been cancelled on the basis that the delegate had referred to ‘may be’ or ‘might be’ and that those tests refer to people who are offshore. It was submitted that the threshold for the person onshore is that they are a risk (denoted by ‘is’). The applicant submitted that this provided a lower threshold for consideration for those offshore than onshore. The Tribunal does not consider this to be a correct reading of the provision or consistent with the caselaw. The Act provides that a visa can be cancelled where the decision maker is satisfied the presence of the visa holder in Australia ‘is or maybe or would or might be’ a risk. This creates a ground for cancellation where there is a possibility the person may or might be a risk to health, safety or good order, as well as where there is demonstrated to be an actual risk of harm.[6] The word ‘may’ and the word ‘might’ do not contain different levels of possibility; they relate to different contexts: ‘may’ if the visa holder is presently in Australia; ‘might’ if they were come to Australia in the future.[7] As the Full Court noted in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, at [36]:
The word “may” and the word “might” do not contain different levels of possibility; they relate to different contexts: “may” if the visa holder is presently in the migration zone (relevantly Australia); “might” if he or she were to come into the migration zone in the future.
[6] Explanatory Memorandum to Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth), p.24 at [13]. This was confirmed in Gong v MIBP [2016] FCCA 561 at [40]. See also Djokovic v MICMSMA [2022] FCAFC 3 at [38].
[7] Djokovic v MICMSMA [2022] FCAFC 3 at [36].
As such, in the Tribunal’s view the assessment of the delegate that the applicant ‘may be’ a risk to the safety of a segment of the Australian community, namely children, was not a misapplication of the grounds for cancellation.
While the Tribunal did not accept these submissions, the Tribunal did accept the core submissions that as the charges had been dropped, the grounds for cancellation no longer existed. All charges against the applicant have been discontinued on the basis there is no reasonable prospect of securing a conviction. He has no history of prior offending of this kind in Australia. Given that none of the allegations have been substantiated by virtue of the discontinuance, the Tribunal is not satisfied that the applicant is a risk to the alleged victim or to a segment of the Australian community, namely children. The evidence does not satisfy that the applicant is or may be a risk to anyone else. The Tribunal is not therefore satisfied that the ground of cancellation is made out.
For these reasons, the Tribunal is not satisfied that the stated ground for cancellation in s 116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.
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 Burford
Senior Member