2408427 (Migration) - [2024] AATA 4337

2408427 (Migration) [2024] AATA 4337 (5 September 2024)
DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dushan Nikolic
CASE NUMBER:  2408427
MEMBER:Denis Dragovic
DATE:5 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 05 September 2024 at 11:15am
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) visa – risk to safety of Australian community – drug dependency, lengthy violent criminal history and imprisonment – early guilty plea, remorse and self-insight, rehabilitation and vocational courses and emotional and behavioural changes – long residence in Australia – partner and children – family and community ties in Australia and none in home country – non-parole likely due to lack of visa – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)
CASE
Gong v MIBP [2016] FCCA 561
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e) having identified the applicant’s presence in Australia ‘is or may be’ a risk to:
(i)the health, safety or good order of the Australian community or a segment of the Australian community.
The evidence included the applicant’s past convictions and then pending charges arising from a violent home invasion.
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 applicant appeared before the Tribunal on 23 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Latisha Sale, the applicant’s partner, and mother of his four children.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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
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). 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…

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 2408427 (Migration)

Details

AGLC: 2408427 (Migration) [2024] AATA 4337
Case: [2024] AATA 4337
Decision Date: 5 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 444 (Special Category) visa of an applicant. The Minister had considered cancelling the visa under section 116(1)(e) of the Migration Act 1958 (Cth), which allows for cancellation if the visa holder's presence in Australia is or may be a risk to the health, safety, or good order of the Australian community. The grounds for this consideration stemmed from a lengthy criminal history, commencing in the applicant's youth and continuing until June 2019, and serious charges arising from an incident in August 2019 involving home invasion, false imprisonment, and assault with an imitation firearm.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e) of the Act was made out. This involved assessing whether the applicant's presence in Australia posed a risk to the health or safety of the Australian community, considering the information provided by the Australian Criminal Intelligence Commission and Victoria Police regarding the applicant's past convictions and the alleged offences from August 2019.

In its reasoning, the Tribunal noted that the power to cancel a visa under section 116(1)(e) can arise on the possibility of risk, not necessarily a direct or certain foundation. However, after considering the evidence, the Tribunal concluded that it was not satisfied that the ground for cancellation existed. Consequently, the power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 444 (Special Category) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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). 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 applicant’s visa was considered for cancellation in the Notice of Intention to Consider Cancellation (NOICC) in which the basis for finding that the applicant was a risk to the health and safety of the Australian community was reasoned. The grounds for finding that the applicant was a risk included a list of convictions that began while the applicant was a minor and continued through to June 2019. It appears that this list was compiled from the Australian Criminal Intelligence Commission report dated November 2019. In addition, the NOICC relies on information provided by Victoria Police to the Department regarding the charges arising from what were then alleged offences from [August] 2019. The NOICC lists the charges as:·Home invasion (imitation firearm produced)·Prohibited person possess imitation firearm·False imprisonment (3 charges)·Common law assault (2 charges)·Unlawful assault·Theft The NOICC outlines what Victoria Police alleged occurred that night:Victoria Police allege that you and a co-accused made plans to attend an unknown address in order to steal money, methyl-amphetamine and items of value from the premises. Victoria Police allege that the co-accused brought an imitation firearm consisting of two tubes taped together to have the appearance of a shotgun. Victoria Police allege that about 2.30am on [Date] August 2019 you and the co-accused approached the front door of the address and that you had in your possession the imitation firearm. It is alleged that victim one opened the front door, but that the security door remained locked, and that the co-accused asked victim one to borrow $20 for petrol. It is alleged that victim one refused this request and stated that you and the co-accused were not permitted to enter the address. Victoria Police allege that you then produced the imitation firearm and forced open the security door and you and the co-accused entered and made your way to the first bedroom where victim two was present. It is alleged that at this time you pointed the imitation firearm at victim two and demanded that both the victims lay face down on the floor. Victoria Police allege that you then punched victim two to the head and kicked victim one several times. It is alleged that you then located an extension lead and a towel in the bedroom and with the assistance of the co-accused proceeded to tie victim one’s hands behind his back causing victim one to become incapacitated, and allegedly proceeded to search through the room for items of value to steal.Victoria Police allege that you then left this bedroom and entered victim three’s bedroom at the rear of the house while still holding the imitation firearm. Victoria Police allege that victim three was laying on the bed and asked who you are. It is alleged that victim three rose from the bed and walked towards you when you allegedly struck him to the face twice causing victim three to fall to the ground. Victoria Police allege that victim three rose from the ground and attempted to walk towards the front door in retreat and that you allegedly followed him which resulted in a physical fight between you and victim three. It is alleged that you then made demands for victim three to lay on his stomach to which victim three complied for fear of further assault. Victoria Police alleged that you located victim three’s bedsheet which you allegedly used to tie victim three’s arms behind his back and his legs together causing victim three to become incapacitated.Victoria Police allege that you then went to victim four’s bedroom, while still in possession of the imitation firearm, and demanded that victim four exit the bedroom. It is alleged that you then demanded victim four lay on his stomach in the lounge room while you then returned to the bedroom in search of items of value to steal. Victoria police allege that about ten minutes later you returned to the lounge room and took possession of a flat screen television and took it to the front door.Victoria Police allege that you then proceeded to the garage where you took possession of a glass cleaner and began pouring the glass cleaner over the lounge room stating you were trying to cover your tracks. Victoria Police allege that you and the co-accused then left the premises.Victoria Police further advise that victim one was conveyed to [Hospital 1] with visible grazes to his elbows, knees and claiming to feel dizzy and lightheaded. Victoria Police allege that victim three was conveyed to [Hospital 2] with visible bruising to his left forehead and cheekbone and claimed to be suffering from a mild headache.Victoria Police allege that at approximately 1.30pm on [Date] August 2019 you were arrested and conveyed to [a] Police Station. Victoria Police allege that during an interview you made frank admissions to the allegations. Victoria Police further allege that on this same day they attended your address and retrieved several items allegedly stolen from the property of the victims.

Decision

Reasons for decision

For the above reasons, I am 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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.Denis DragovicDeputy President

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.