Abdullah (Migration)
[2022] AATA 591
•24 February 2022
Abdullah (Migration) [2022] AATA 591 (24 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Faizan Abdullah
CASE NUMBER: 2105134
HOME AFFAIRS REFERENCE(S): BCC2021/592615
MEMBER:Warren Stooke AM
DATE:24 February 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 485 (Temporary Graduate) visa.
Statement made on 24 February 2022 at 3:04pm
CATCHWORDS
MIGRATION – cancellation – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – risk to the health and safety of a segment of the Australian community – applicant charged with serious offences – presumption of innocence – sworn declarations of support – applicant imprisoned pending criminal proceedings – disruption to proposed studies – decision under review affirmed
LEGISLATION
Crimes Act 1958 (VIC)
Migration Act 1958, ss 116, 140, 189, 198
Migration Regulations 1994CASES
ATR15 v MIBP [2016] FCCA 1089
FMV17 v Minister for Immigration & Anor [2019] FCCA 186
Gong v MIBP [2016] FCCA 561
Howard v Minister for Immigration [2017] FCCA 2916
Newall v MIMA [1999] FCA 1624
Tien v MIMA (1998) 89 FCR 80STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 16 April 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 485 (Temporary Graduate) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e) on the basis that the delegate considered the allegation of sexually based offences and the Victoria Police facts in relation to these charges was sufficient to satisfy the Department that the visa holder may be a risk to a segment of the Australian community, namely women.
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 3 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Shivaniben Desai.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
On 6 December 2021, the Representative for the applicant requested the Tribunal postpone the hearing until January or February 2022 because of the difficulties in preparing the case through the prison system. The Tribunal considered and granted the applicant a postponement.
On 11 January 2022 the Tribunal sent a letter inviting the applicant to attend a hearing on 3 February 2022 to give evidence and present arguments relating to the issues arising in Case Matter 2105134.
On 19 January 2022 the Tribunal received a request that the hearing be postponed on the basis of ongoing matters before the County Court of Victoria, however, the Tribunal considered the request carefully but decided not to postpone the hearing. In this regard, the Tribunal considered that the matter before the Tribunal was subject to administrative law and not contingent upon any proceedings that may take place in any criminal jurisdiction pertaining to the applicant. As such, the Tribunal proceedings are independent of any other proceedings and decided that the matter should proceed on the basis of a merits review, as advised in the hearing invitation of 11 January 2022.
The hearing therefore proceeded (via video conference) on 3 February 2022, on the basis of the invitation provided to the applicant on 11 January 2022.
The applicant was represented in relation to the review prior to hearing by Ms S Webster, whose authority to represent was withdrawn on 27 January 2022, which was subject to a formal withdrawal from representation. The applicant confirmed at hearing that Ms Shivaniben Desai is the nominated person for the receipt of correspondence in relation to the applicant.
The applicant confirmed to the Tribunal that he had received and read the delegate’s decision of 16 April 2021, which was provided to the Tribunal with the application for review. The applicant stated that he understood the reason for the cancellation of his Temporary Graduate 485 visa and the claim against himself. He stated: “Yes I do understand”.
The applicant stated that he was currently residing at the Hopkins Correctional Centre in Arrarat, Victoria.
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). 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.
The Tribunal asked the applicant: “Do you understand that Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out?” The applicant responded: “Yes. I do understand”.
The Tribunal then informed the applicant that relevantly, to this case, these include the grounds set out in s.116(1)(e) and the applicant responded: “Yes”.
The Tribunal then stated: “If satisfied that the ground for cancellation is made out, the Tribunal must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. The applicant acknowledged that he understood the process taking place.
The Tribunal informed the applicant that the proceedings before the Tribunal constitute a merits review of the visa cancellation and are independent of any criminal proceedings in another jurisdiction.
The applicant provided evidence that he arrived in Australia on 28 February 2018 on a Student visa.
The applicant stated that he completed a Master of Data Analytics in December 2019 at Deakin University and was awarded High Distinctions. The applicant stated that he had no breaches (visa conditions) to his knowledge.
The applicant confirmed to the Tribunal that he commenced his Temporary Graduate 485 visa on 1 September 2020, which was due to cease on 1 September 2022.
The Tribunal asked the applicant when he intended to return to Pakistan and he stated after he completed his degree. The applicant stated that he made application for a PhD Scholarship at Deakin University (Geelong) and that he had been in dialogue with his supervisor and that the studies would be dependent upon the grant of a visa.
The applicant stated that he was working as a security guard, with David Jones, Big W Woolworths, and Christian Dior, whilst undertaking his studies.
The applicant stated that he had a clearance with Australian Border Force and was engaged in the clearance of materials to China and screening for criminal backgrounds.
The Tribunal informed the applicant that the Tribunal would then consider whether the ground for cancellation exists and quoted the following content of s116(1)(e)(i), as follows:
s.116(1)(e)(i) - (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
The Tribunal confirmed with the applicant that he was provided a Notice of Intention to Consider Cancelation of the visa by the Department on 3 March 2021 and the applicant responded: “Yes”.
The Tribunal asked the applicant: “What information did the NOICC ask you to provide a response to?”. The applicant responded that the letter (NOICC) makes no assessment regarding s116(1)(e)(i) and that the letter alleged behaviour and sexually motivated offences.
The applicant stated that the alleged behaviour has not yet been established that the said behaviour took place and that the Department has no valid grounds to cancel (the visa).
The applicant confirmed to the Tribunal that the Department issued a decision on whether to cancel under s116 of the Migration Act 1958 on 16 April 2021.
The Tribunal asked the applicant: What do you say regarding the findings raised in the delegate’s decision about there being a ground for a cancellation? The applicant responded that the s116(1)(e)(i) decision related to a complaint stated to police regarding alleged behaviour and he denied the allegations.
At this junction the Tribunal advised the applicant that a decision regarding the validity of the decision of the Department had not been made but stated to the applicant: “On the basis that the Tribunal were to find that there are grounds for the cancellation of your Temporary Graduate 485 visa by the Tribunal, the Tribunal now intends to address matters of consideration in the exercise of discretion in this matter.
The applicant indicated to the Tribunal that he understood the Tribunal position in proceeding to explore whether the grounds for cancellation exist through seeking a response to the following questions for the consideration of discretion:
What is the purpose of your travel and stay in Australia?
The applicant stated that the whole purpose was for his study of a Master degree and his intention was to complete the degree and return to Pakistan. He stated that he met his supervisor and he offered for the applicant to work with him, which included the study of a PhD.
The applicant stated that he worked part-time as a security guard and prepared publications, including publications for the IEEE (Institute of Electrical and Electronic Engineers), which is based in the USA and he had a personal contribution that included 5 publications in all.
Do you have a compelling need to travel to or remain in Australia?
The applicant stated that he was here for study and to continue to study a PhD. This opportunity will be the last with service to be provided to Australian studies of medical and Artificial Intelligence. He stated that he comes from a good family and wanted to make them proud, which he stated is evident from the achievements in his studies. The applicant stated that the alleged behaviour is the last thing that he would do.
Can you demonstrate the extent of compliance with visa conditions?
The applicant stated that he had no breaches of visas since 1 February 2018 that ended November 2019. The applicant then applied for Temporary Graduate 485 visa. He stated that no breaches of the visa have occurred.
What degree of hardship may be caused (financial, psychological, emotional or other hardship) if the Tribunal affirms the delegate’s decision?
The applicant stated that he comes from a highly educated family and that he started working in 2012 after completing Engineering (Computing) which was followed by the study of a Master degree. He stated that he worked with a hospital undertaking interpretation of data and that AI as a subject is not available in his own country. He stated that the most thing he would lose is his career.
Please describe the circumstances in which the ground of cancellation arose?
The applicant responded that there is a “Statement in the court”. He stated: “it was mentioned clearly that it was alleged behaviour as the basis for which my visa is cancelled”.
The applicant stated that the matter has not been to court yet and the matter has been listed for 27 March 2022 and was first in the Magistrates Court and now in the County Court. The applicant claimed that no evidence has been provided by the prosecution.
The applicant stated that the judge will not make any decision and adjourned to 27 March 2022.
What are your current circumstances? (Past and present behaviour of the visa holder towards the department)?
The applicant stated that he was currently incarcerated in Australia. He stated that his father is a doctor and that he used to visit prior to his current circumstances. He also stated that he never thought he would be in this situation, and that each day is challenging.
What would be the consequences of a cancellation under s.140 (impact on others)?
The circumstances of this case are not such that any person's visa would be consequentially cancelled under s140 of the Act. As such, the applicant did not provide evidence on this provision in the Act.
Potential detention under s189 and removal under s198 of the Migration Act 1958.
The Tribunal explained to the applicant that if his visa is to be cancelled, he would likely become an unlawful non-citizen and may be liable for detention under s189 and removal under s198 of the Migration Act 1958. It was further stated: This may be the case, if you do not resolve your immigration status or voluntarily depart. Do you understand these potential consequences?
The applicant responded: “I understand”.
What do you say regarding Australia’s International Obligations?
The applicant did not provide any specific comment concerning Australia’s International Obligations in order for the Tribunal to be able to give any weight for or against a decision to cancel the visa.
The applicant concluded with a statement to the Tribunal claiming that the issue is only allegations and that he is not a threat to anyone in Australia.
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: 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.
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: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals.
The issue in the applicant’s case is, given his presence in Australia, whether he is or may be[1] a risk to the health, safety or good order of the Australian community or a segment of the Australian community under s.116(1)(e)(i), noting that s.116(1)(e)(ii) addresses a risk to the health or safety of an individual or individuals.
The use of the words “may be a risk” was considered by the Federal Circuit Court in Gong v Minister for Immigration and Border Protection[2] in the following manner:
40. 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 not have to be ... any direct, solid or certain foundation before the power to cancel the 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 reasoning in Gong was accepted and followed by the Federal Circuit Court in Howard v Minister for Immigration[3] where the ground for the cancellation of a visa under s.116(1)(e) was found to have been satisfied in circumstances where the visa holder had not been charged with any criminal offence but the decision maker relied on findings made against the visa holder by a foreign court in civil proceedings conducted in the visa holder’s absence.
According to the Department’s policy guidelines:
The term ‘risk’ is not defined in the Act, and is by its very nature speculative and uncertain. However, the ordinary meaning of the term risk relates to the chance of something deleterious or harmful happening in the future.[4]
Similarly, the term “safety” is not defined in the Act for the purposes of s.116(1)(e) and has been found to be used in accordance with its ordinary meaning: see Newall v MIMA.[5]
In this regard, the applicant’s representative submitted a response dated 15 March 2021 to the Notice of Intention to Consider Cancellation of a visa (NOICC) dated 3 March 2021, that included the following content:
“We refer to the Department’s NOICC dated 3 March 2021. It states:
…… there appear to be grounds for cancellation of your Temporary Graduated (subclass 485) visa granted on
01 September 2020 under section 116 of the Migration Act 1958 (the Act):
The NOICC sets out the offences pursuant to the Crimes Act 1958 with which the applicant has
been charged and sets out the detail surrounding the alleged crimes. The applicant has engaged a
criminal lawyer to address these issues at court. We will not address these issues in this
submission but will discuss why the applicant’s visa should not be cancelled under 116(1)(e)(i) of
the Act.We are informed by the applicant that he does not believe there are grounds for cancellation on
the basis that he denies committing the crimes and is a risk to the Australian community. Therefore the grounds for cancellation do not exist.The applicant completed a Bachelor of Computer Engineering at the University of Islamabad in
2016. He then completed a 12 month internship as an IT Support Engineer with Inbox
Technologies Private Limited. In March 2018, the applicant came to Australia as a student
enrolled in a masters of Data Analytics at Deakin University. He completed this course in
November 2020. The applicant had applied to enrol in a Doctorate and had, we are informed,
recently had a PHD scholarship approved with 100% funding stipend. The enrolment for the
Doctorate could not proceed because of the pending charges.
While in Australia, the applicant had had several articles published, as can be seen listed in his
Resume. He also worked as a security guard multiple venues.
We submit that the applicant had everything to look forward to, particularly furthering his career
by the enrolment and acceptance into a PhD, a pinnacle he had been working towards for many
years.The applicant came to Australia as a student and complied with all visa conditions as required.
He came as a single man and has lived in a shared household. We refer to the Statutory
Declaration of Ms Kadishi Keshava (attachment 3) who is a female housemate who has shared
premises with the applicant since July 2020. Ms Keshava describes the applicant as ‘friendly, kind,
polite, helpful and respectful…. nobody has ever witnessed any signs of inappropriate or violent behaviour.’
We now refer to the Statutory Declaration of Ms Shivaniben Kaushir Kumar Dasai dated 13
March 2021 (attachment 4), who is a friend of the applicant and who in her statutory declaration
describes the applicant as ‘dependable, responsible, honest and courteous’. She further states: ‘I am aware
of the charges on him, I still assure that Faizan cannot be a threat to the community considering his behaviour
people, specially females’We also refer to the Statutory Declaration from Tariq Mahmood Khan dated 14 March 2021. Mr
Tariq Mahmood Khan is a Research Fellow at Deakin University in the School of Information
Technology. Mr Khan states that he met the applicant in November 2019 when he was
approached by the applicant to continue his research work with Mr Khan. Mr Khan discusses
both the projects they worked on together and the publications they jointly shared. He states that
the applicant ‘was self-motivated, dedicated and hard working’ he goes on the say ‘I am surprised to hear
about such charges on Mr Faizan. Its hard to imagine such a future focused person like him can do such a thing’We also have a letter (unsigned) from Diyar Aksu, the Site Supervisor of MSS Security at the
Commonwealth Bank. This letter can be signed and forwarded to the Department of
Immigration or you can contact him directly on his mobile. The applicant was employed within
this security service over a three month and his supervisor stated that the applicant ‘was respectful
to all the female employees around the office’. Further he states that ‘We have not come across any complaints
about his work or behaviour around people. we have not come across any misconduct or behavioural issues from
Faizan’s end. He managed his responsibility with integrity.’As advised in the Department’s letter of 3 March 2021, you ‘make no assessment whatsoever on
criminal guilt. However, the ground for cancellation at section 116(1)(e)(i) does not require a finding of guilt to be
enlivened. I have reviewed the alleged facts and I consider the alleged behaviour to be serious in nature as it relates
to sexually motivated offences’.We submit that cancelling this visa serves no purpose. Firstly, the applicant has not been
granted bail. Secondly, the applicant, we are informed, has never been charged or convicted of
any crimes prior to the current charges, and he denies the offences with which he is charged.
The applicant has abided by his visa conditions whilst in Australia.We submit that, if the applicant is granted bail, he will be able to continue his work, if not his
PhD (at present), and continue on his career trajectory. If the applicant’s visa is cancelled, he will
not have work rights while he waits for his court hearing date, which could be a long time away
given the delays caused by covid, and he will have no means of support. The applicant must
remain in Australia until his hearing date.We submit that the assessing officer must weigh each case in an individual basis, and assess the
‘risk’ which ‘may’ be posed by the applicant. The applicant has lived quietly in Australia for
nearly 3 years and prior to these allegations and charges, has had no issues in the Australian
community whatsoever. We have provided references from a female housemate, a female friend
and his colleague at the university. Each of them has described the applicant as a thoughtful and
respectful person and not as a person who would be a risk to the community.We request that the applicant’s vis not be cancelled under 116 of the Migration Act 19588 for all
the reasons stated above.”Statutory Declaration – Ms Adithi Keshava (House Share-mate)
Ms Adithi provided a sworn statement dated 11 March 2021 to the DIBP in response to the applicant’s response to the NOICC of 3 March 2021. The support person described herself as a house share-mate of the applicant since July 2020 and provided the following sworn statement:
“Thank you for the opportunity to write this letter in favour of Faizan Abdullah's good character and giving me a platform to explain why I think he should be allowed a chance to remain in the country. I am currently residing in same house and on a student visa.
I have known Faizan since July of 2020 when he moved into my current place of residence. We live in a student accommodation that is currently occupied by a mixed male to female ratio and people of various nationalities. From the very first day he has moved in, Faizan has been nothing but friendly, kind, polite, helpful and respectful of our shared space. Speaking on behalf of everyone that has lived here, nobody has ever witnessed any signs of inappropriate or violent behaviour. In fact, he transitioned into becoming a part of the house and of our group very smoothly.
I personally have never felt threatened in his company. I live in the room adjacent to his and we also share a common bathroom through which my room can be accessed. We have spent many late nights hanging out together and I have always felt comfortable and safe and even protected at times when we have gone out late at night. I have watched him in the company of other women and he has always been nothing but respectful to them.
I do not believe that Faizan is a threat to the community and having been made aware of the charges, I strongly request to not cancel his visa until the court has carried out the due process. I believe it is extremely unfair to take away his opportunity to continue living in Australia since he just got accepted into a PhD programme. He comes from a very well educated and respected family and I am well aware of how important building a good education and career is to both them and him respectively. If his visa was cancelled at this point in time, he would be deprived of the chance to make the most of the education system that Australia has to offer and take away everything he has worked for in his time here.”
Statutory Declaration – Mr Tariq Mahmood Khan (Academic Colleague)
Mr Tariq Mahmood Khan provided a sworn statement dated 11 March 2021 to the DIBP in support of the applicant’s response to the NOICC of 3 March 2021. The support person described himself as a fellow academic colleague and provided the following sworn statement:
“My name is Tariq Mahmood Khan and I am a responsible Australian Permanent Resident. I am pleased to write this character letter for Mr. Faizan Abdullah. I've known Mr. Faizan Abdullah since November 2019. He was a graduate student of Deakin University. In his masters, he worked on a project that falls within my field of expertise. Mr. Faizan was keen to continue his studies and to earn a doctorate degree. He contacted me to continue with his research work in the same field. We worked together on the segmentation of retinal vessels and were able to publish a paper at the International Joint Conference on Neural Networks (IJCNN), a highly reputed international conference. From the time I started interacting with Faizan, I observed that he was self-motivated, dedicated, and hard-working. He had such a high enthusiasm towards research that even after the completion of his degree he continued his research with me. He impressed me by his aptitude towards learning new concepts. He continued to collaborate wi h me even during COVID Lockdown, and we were able to publish two journal articles in Diagnostics (MDPijoumal) and IEEE Access (link of these publications are provided at the end of this letter). After building a strong research profile, Mr. Faizan was one of the potential doctoral candidates.
I am surprised to hear about such charges on Mr. Faizan. It's hard to believe that a future focused person like him can do such a thing. Cancellation of visa based on allegations yet to be proved, in my humble opinion, would not be the best remedy to present situation.”
Evidence and Statutory Declaration – Ms Shivaniben Kaushikkumar Desai (Friend)
Ms Shivaniben Kaushikkumar Desai provided a sworn statement dated 11 March 2021 to the DIBP in support of the applicant’s response to the NOICC of 3 March 2021. The support person described herself as a friend of the applicant and provided the following sworn statement:
“My name is Shivaniben Kaushikkumar Desai I am responsible citizen of Australia. I am writing this Character reference letter for Mr. Faizan Abdullah who is a very dear friend of mine. It is privilege for me that I know Faizan Abdullah for over 1 year. He is a close friend and like a family member to me and my family. I consider Faizan as a wonderful human being and respectful person to everyone around him. Faizan is very kind, helpful and treats everyone with respect.
I find myself safe and secured around Faizan at any time, I have spent most of my free time hanging out with Faizan as an individual and in a group setting. We have been to many different public places such as restaurants, cafes and parks. I never saw Faizan as a threat to a community, he is a law-abiding citizen, caring and respectful to people around him.
I know Faizan to be dependable, responsible, honest and courteous. Faizan is hardworking man who works without complaining towards his goals and has been successful academically. I saw him working on his paper publications so passionately, so that he can be eligible for Ph.D. sponsorship in Australia. He helped many people during his university times for studies and educational projects.
Faizan comes from very well educated and respectable family background. I am aware of the charges on him, I still assure that Faizan cannot be threat to the community considering his behaviour around people and specially with females. I am female myself and I can trust him with myself as well as my daughter at any given time. He has been living in a joint accommodation where male and female ratios are equal and still manage to have healthy respectful relationship with females around him.
We all migrated from different places to Australia for better life and bright future and we work really hard for the same. Faizan worked hard as well and deserves an opportunity to lead a happy life in Australia. The case outcome is still pending and based on charges we should not take the opportunity away from a bright student, his entire career and years of hard work will be wasted. I would like to request you to consider all these facts and not cancel his visa.
If he is allowed to stay in Australia, I am sure he will contribute to the community and prove himself a great citizen of this country. If you have any question regarding Faizan Abdullah, please feel free to reach out to me anytime.”
Ms Shivaniben Kaushikkumar Desai also provided evidence at the hearing of 3 February 2022 and she stated that she had prepared a statutory declaration for the consideration of the Tribunal.
The witness stated that the applicant was a good friend at college and within the community and that she was happy to provide evidence to support his case.
Letter of Support – Mr Diyar Aksu (Site Supervisor at MSS Security)
Mr Diyar Aksu, a Site Supervisor with MSS Security, provided a signed letter dated 16 March 2021 to the DIBP in support of the applicant’s response to the NOICC of 3 March 2021. The support person described himself as a supervisor of the applicant in the security industry for three months and provided the following written statement:
“Re: Character reference on Faizan Abdullah as a Security guard and crowd controller.
My Name is Diyar Aksu of Site Supervisor of MSS Security at Commonwealth bank office at location 357 Collins street Melbourne CBD.
I have known Faizan Abdullah of xxxxxxxxxxxxxxxxxx for over 10 months, he worked for me at commonwealth bank as a security guard for around 3 months.
I am aware of the charges on Faizan Abdullah, but I can assure in past while working at commonwealth bank during the Pandemic, he was respectful to all the female employees around the office, he worked on different floors every day and his job was to check temperature and hand over the masks to all the employees while working with my organization Faizan was responsible, reliable and trustworthy employee.
We have not come across any complaints about his work or behaviour around people. we have not come across any misconduct or behavioural issues from Faizan’s end. He managed his responsibility with integrity.
Faizan is a team player he gets along well with everyone in the team, he makes friends very easily and is a quick learner. He always turns up on the shifts without delays and was available in a short notice to start the shifts.
So, I believe, a person who has have a good background history and who obtained security licence and working in high security environment without any troubles should deserve another chance.
Considering his past history and good behaviour I request you to consider Faizan’s future and give him a second chance to prove himself, so that he can demonstrate that he is law abiding responsible citizen of the community and is not a threat to the society.”
Applicant Statement of 27 January 2022
“I wish to bring to your knowledge that: The accusations and claims against me due to which my Visa has been cancelled are being addressed at the courts by my criminal lawyer. Key points and the merits of the case will be discussed at the court on following dates: 31-01-2022 and 01-02-2022. This will later be followed up by a defense response to the proceedings dated: 07-02-2022 which will reflect the possible outcomes of the case. In order for the worthy tribunal to reach a just decision considering and weighing all the elements and merits, an adjournment to a hearing post these key dates shall highly be appreciated. As mentioned in the Department of home affair's letter of 3 March 2021: ‘(department) make(s) no assessment whatsoever on criminal guilt. However, the ground for cancellation at section 116(1)(e)(i) does not require a finding of guilt to be enlivened. I have reviewed the alleged facts and I consider the alleged behavior to be serious in nature as it relates to sexually motivated offences. I would like to highlight here that, merit of the cancellation, as per home office is not based on anything else but, if the alleged behavior is considered serious in nature and related to sexually motivated offences. A behavior considered in a particular way by the Department of Home Affairs does not in return mean that I did have the said behavior. It is not yet established at any stage if the said behavior ever took place to start with. In the absence of such a behavior, based on there own interpretation, the Department of Home Affairs has no valid ground to cancel the visa. Furthermore, a mere accusation against a person, particularly one which lacks the key element of evidence in all the areas should not be a valid ground for the Tribunal to reach a conclusion and decide a law-abiding man’s fate. This stance gets reinforced by my track records, be it in Australia or in my native country Pakistan. Proof of these claims can be submitted and are backed by the fact that I was scrutinized by the Australian Federation Police thoroughly which led to me receiving an AISEC card. Such a card is only issued after a detailed inspection into a person’s criminal background and activities. Due to the same reason, I was also able to work part time for the Australian Border Force at the airport. I have also worked in different areas which require a person to be welcoming and safe to approach for example I have worked as a security guard at multinational retail stores such as Christian Dior, Woolworths, Big W. My part time work also used to include, but not limited to, tasks such as crowd control at events and concerts. Over the course of my work, I would interact with people of all ages and nationalities. No one has ever even complained against me for being inappropriate to them or making them feel insecure or unsafe. My employers were always satisfied with my services and felt comfortable offering me recommendations. This feedback/opinion about me is not limited to general public or my employers, but also applies to people I had daily interactions with. I was living in a student accommodation with people from over six nationalities. None of them be it men or women, felt unsafe around or with me even sharing personal spaces such as a washroom. I was allowed entry into Australia based on a student visa. Due to which I was always focused on the purpose of my arrival and completed my M.S in Data Analytics degree in time, without indulging into any and all sorts of activities which may affect my studies. As a student, I used to work in groups as per requirement for the completion of the degree. I did not just stop after being awarded a degree from my intuition, instead I started working on my publications. I succeeded with plenty of submissions due to which I almost got an offer of scholarship along with stipend for the Ph.D. in further studies related to my field namely, Artificial Intelligence. This further shows that I had set goals for myself and would definitely not do anything which can halt the process of my success. Due to visa cancelation status I now most probably have lost the once in a life time opportunity of doing Ph.D. with such prestige. I will lose the valuable opportunities ahead that would not only be beneficial for me but also enabled me to provide my expert services and knowledge to Australia itself. I will also lose the personal relations I made in Australia over the course of my prestigious stay. I come from a highly qualified learned family. I came to Australia with clear aims to make myself as well as my family proud which is evident by my achievements over the course of my stay. Having the above-mentioned behavior would not even be the last thing I can think or do. Cancelation of my visa just based on a false complain against me will highly be discouraging Signed character reference letters submitted by my employers, my colleagues, house mates, friends as well as my mentor/teacher have been attached which also back and reflect all the claims I have made above. Further documentation to prove anything stated or claimed can be submitted. I request that the Tribunal shall assess the risks and the outcomes of their decision for me and my future. I have lived quietly in Australia for nearly 4 years till date. I always paid my taxes on time. Prior to these allegations, there have been no issues to the Australian community whatsoever due to me. The provided references include references from a female housemate, a female friend and a colleague at the university. Each of them has described me as a thoughtful and respectful person and not as a person who would be a risk to the community. As per legal writers, “every person should be considered innocent until proven guilty” I request that the visa shall not be cancelled under 116 of the Migration Act 19588 for all the reasons stated above and for the upkeep of justice system in Australia Thanking you in anticipation.”
The applicant stated at hearing that he wanted to say that prior to this matter, he had no issues relating to the Australia community and that those (matters before the County Court) are allegations. He also stated he had no issues in his home country and that he is innocent until proven guilty.
The applicant stated that the alleged behaviour has never been true and that his statement will be cross-examined (Criminal proceedings).
NOICC and Delegate’s Decision to Cancel?
The Tribunal considered the arguments submitted by the applicant and his Representative in his response to the Notice of Intention to Consider Cancellation and in evidence to the Tribunal, including the statutory declarations of an academic associate, a work associate, and the friend, who is now the authorised recipient for correspondence on behalf of the applicant and is also a witness, and attended the hearing before the Tribunal. The Tribunal has also considered the Department’s reasoning outlined within the delegate’s decision of 16 April 2021. The Tribunal also had regard to relevant case law regarding the assessment of “risk to the good order of the Australian community or a segment of the Australian community”.
In Tien v MIMA[6], Justice Goldberg stated that the phrase requires that there be:
...an element of a risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities.[7]
In ATR15 v MIBP[8], the court held that it was appropriate for the Tribunal to conclude that the risk to good order was about the risk of adverse reaction by certain members of the Australian society to the applicant’s presence in the country, rather than on the concern about the applicant’s likely or possible conduct. There is no requirement that the adverse reaction of the Australian community, or a segment of it, be a reasonable reaction.
The Victorian Department of Justice and Community Safety advised the Department that the visa holder had been charged with the following offences pursuant to the Crimes Act 1958 (VIC):
Attempted rape (on 07/02/2021)
Sexual assault (on 07/02/2021)
Assault with intent to commit a sexual offence (on 07/02/2021)
False imprisonment (on 07/02/2021) (Common law)
The Tribunal considers that the Victoria Police facts that are alleged in relation to the outstanding charges listed above, constitute serious sexually motivated offences against the complainant.
The Tribunal was presented with sworn declarations from friends and colleagues of the applicant that attest to his status as coming from a good family and that their personal experience with the applicant is as a person of good character. The Tribunal finds that this evidence pertains to an experience with the applicant in circumstances where they have no firsthand experience in relation to the alleged events that took place on 7 February 2021.
Further, the Tribunal is satisfied that the criminal justice process in Victoria, through the Courts, has determined that the alleged circumstances of the case pertaining to the applicant were of such seriousness that the applicant has been incarcerated pending a determination of the alleged charges. This, the Tribunal considers to be a significant fact in considering the circumstances of the Department’s decision to cancel the Temporary Graduate 485 visa of the applicant.
The Tribunal notes that the Representative for the applicant made the following submission, in part, concerning the circumstances that led to the cancellation of the applicant’s Temporary Graduate 485 visa, as follows:
“The NOICC sets out the offences pursuant to the Crimes Act 1958 with which the applicant has been charged and sets out the detail surrounding the alleged crimes. The applicant has engaged a criminal lawyer to address these issues at court. We will not address these issues in this submission but will discuss why the applicant’s visa should not be cancelled under 116(1)(e)(i) of the Act.”
The Tribunal respects the submission of the Representative and makes no finding in relation to the alleged criminal charges initiated by Victoria Police and the proceedings currently before the County Court, which is subject to a further hearing, as advised by the applicant, to be commenced on 27 March 2022. In this regard, the Tribunal holds the view that the consideration of s116(1)(e)(i) is not contingent upon any potential findings in the County Court, but rather will be considered as a merits review of the case based upon the prevailing Migration Act 1958, the Regulations, the PAM Policy Guidelines and the authorities of the Court relevant to s116(1)(e)(i).
In FMV17 v Minister for Immigration & Anor [2019] FCCA 186 (1 February 2019), Judge Riley [10] made the following finding:
“However, as discussed above, the Tribunal did consider all the necessary matters in deciding whether there was a risk to the good order of the Australian community. It was not necessary for the Tribunal to consider whether there would be an adverse reaction. A risk of a disruption to the good order of the Australian community was enough.”
The Tribunal is satisfied that having taken into account all of these factors, the Tribunal has given the greatest weight to the fact and nature of the alleged offending behaviour and the indicators of risk they carry for the health, safety and good order of the Australian community. In this regard, the Victorian criminal justice process has taken action to incarcerate the applicant pending any future proceedings in the criminal justice system.
Based on the above, and the courts’ broad interpretations ofs116(1)(e)(i), the Tribunal is satisfied that the ground for cancellation in s.116(1)(e)(i) 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 policy for ‘General visa cancellation powers’.
The applicant is a 29 year old from Pakistan, who provided evidence that he arrived in Australia on 28 February 2018 and was granted a Student 500 visa to study a Master of Data Analytics in Australia, which he completed in December 2019.
The applicant was granted a Temporary Graduate 485 visa that commenced on 1 September 2020 that was due to expire on 1 September 2022.
The applicant provided evidence concerning his work history, whilst in Australia and the transcript relating to his academic progress.
The Tribunal is satisfied on the evidence that the applicant arrived in Australia on a Student 500 visa on 28 February 2018 for the purposes of undertaking a Master of Data Analytics, at Deakin University, that was completed in December 2019. The applicant was then granted a Temporary Graduate 485 visa from 1 September 2020 to 1 September 2021, which was subject to the Department’s cancellation on 16 April 2021. As such, the Tribunal is satisfied that the purpose of the arrival and stay was consistent with the expectations with the grant of a Student 500 visa and the subsequent Temporary Graduate 485 visa.
The Tribunal was provided with evidence by the applicant at hearing that he was here for study and to continue to study a PhD.
The applicant further stated that this opportunity will be the last with service to be provided to Australian studies of medical and Artificial Intelligence. He also stated that he comes from a good family and wanted to make them proud, which he stated is evident from the achievements in his studies and that the alleged behaviour is the last thing that he would do.
The Tribunal has considered the statutory declarations of the applicant’s friends and associates, both male and female, who provided support that the applicant’s Temporary Graduate 485 visa should not be cancelled.
The Tribunal does not give any weight for or against a decision to cancel the visa for the consideration of s140 as there is no other visa relevant to the circumstances of this case. The cancellation of the applicant’s visa would not result in any consequential cancellations.
The Tribunal acknowledges that cancellation of the visa would render the applicant potentially an unlawful noncitizen and therefore liable for detention under section 189 and removal under section 198 of the Migration Act should he not leave Australia voluntarily, which the applicant stated he understood. The Tribunal acknowledges that the cancellation would potentially limit the ability of the applicant to apply for future Student visas. The Tribunal gives this consideration some weight against cancelling the visa.
The Tribunal has considered the applicant’s behaviour toward the Department and the response to the NOICC, which the Tribunal considers to have some weight in the applicant’s favour towards cancellation of the visa.
On the basis of the evidence at hearing, it is not suggested that any international obligations might be invoked in relation to cancellation of the visa. The Tribunal notes that the policy consideration is whether any international obligations, including non-refoulement, and best interests of the children as a primary consideration (which does not arise in this case), would be breached as a result of the cancellation. The Tribunal is satisfied that there would not be any breach of Australia’s international obligations arising from a cancellation of the visa in this case.
The Tribunal notes that the applicant has concluded the formal course of study toward a Master of Data Analytics in Australia, which he completed in December 2019. In this regard, the applicant was then successfully granted a Temporary Graduate 485 visa that commenced on 1 September 2020 that was due to expire on 1 September 2022, which is now subject to consideration of cancellation. The Tribunal acknowledges that the applicant has had clearances to be employed by the Australian Border Force and been subject to prior Police checks that have not identified any previous issues with the applicant’s character or behaviour, which the Tribunal finds to be in the applicant’s favour.
The Tribunal acknowledges the applicant would experience a degree of hardship, as a consequence of the cancellation of the Temporary Graduate 485 visa that was due to expire on 1 September 2022, particularly as a cancellation of the visa would potentially impact upon the applicant by limiting access to any further visa to undertake future studies that the applicant discussed at hearing.
The Tribunal has given very careful consideration to the hardship that may be occasioned to the applicant, his family and his friends and colleagues, by the cancellation of the visa, however, the Tribunal finds that the seriousness of the alleged behaviour and the presence of ‘an element of a risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society’[10] , which gives significant weight to the cancellation of the visa.
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 485 (Temporary Graduate) visa.
Warren Stooke AM
Member[1] Rather than “would or might be” as this term would only apply if the applicant had not yet arrived in Australia.
[2] Gong v Minister for Immigration and Border Protection[2016] FCCA 561
[3] Howard v Minister for Immigration[2017] FCCA 2916.
[4] PAM3, Visa cancellation instructions, general visa cancellation powers (s109, s116, s128, s134B and s140).
[5] Newall v MIMA[1999] FCA 1624 at [21]
[6]Tien v MIMA[1998] FCA 1552; (1998) 89 FCR 80 at 94
Tien v MIMA[1998] FCA 1552; (1998) 89 FCR 80 at 94
ATR15 v MIBP[2016] FCCA 1089
[7]
[8][9] FMV17 v Minister for Immigration & Anor [2019] FCCA 186 (1 February 2019) at 56
[10] Tien v MIMA[1998] FCA 1552; (1998) 89 FCR 80 at 94
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