Abdullah (Migration) - [2022] AATA 591

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 1994
CASES
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 80
STATEMENT 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…

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 Abdullah (Migration)

Details

AGLC: Abdullah (Migration) [2022] AATA 591
Case: [2022] AATA 591
Decision Date: 24 February 2022

CaseChat Overview and Summary

This matter concerned the review of a decision to cancel the applicant's Temporary Graduate (subclass 485) visa. The applicant, who had arrived in Australia in 2018 on a student visa and subsequently completed a Master of Data Analytics, was charged with serious offences under the Crimes Act 1958 (Vic), including attempted rape, sexual assault, assault with intent to commit a sexual offence, and false imprisonment. The applicant was incarcerated pending the determination of these charges. The review was conducted by the Tribunal under the Migration Act 1958.

The primary legal issue before the Tribunal was whether the applicant's presence in Australia constituted, or might constitute, a risk to the health, safety, or good order of the Australian community or a segment of it, as contemplated by section 116(1)(e)(i) of the Migration Act. This required the Tribunal to consider the seriousness of the alleged offences and their potential impact, notwithstanding the presumption of innocence in the criminal proceedings.

The Tribunal reasoned that while the applicant denied the charges and presented sworn declarations from friends and colleagues attesting to his good character, this evidence related to his conduct in circumstances where those individuals had no firsthand knowledge of the alleged events. The Tribunal gave significant weight to the fact that the applicant had been incarcerated pending the determination of the charges, indicating that the criminal justice process considered the alleged circumstances to be of sufficient seriousness. Applying case law, the Tribunal understood "risk to the good order of the Australian community" to encompass the potential for disruptive public actions or activities, or adverse reactions from segments of the community to the applicant's presence. The Tribunal concluded that the alleged sexually motivated offences were serious in nature and that the applicant's incarceration was a significant factor in affirming the decision to cancel his visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). 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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 on01 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 hasbeen charged and sets out the detail surrounding the alleged crimes. The applicant has engaged acriminal lawyer to address these issues at court. We will not address these issues in thissubmission but will discuss why the applicant’s visa should not be cancelled under 116(1)(e)(i) ofthe Act.We are informed by the applicant that he does not believe there are grounds for cancellation onthe 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 in2016. He then completed a 12 month internship as an IT Support Engineer with InboxTechnologies Private Limited. In March 2018, the applicant came to Australia as a studentenrolled in a masters of Data Analytics at Deakin University. He completed this course inNovember 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 theDoctorate could not proceed because of the pending charges.While in Australia, the applicant had had several articles published, as can be seen listed in hisResume. He also worked as a security guard multiple venues.We submit that the applicant had everything to look forward to, particularly furthering his careerby the enrolment and acceptance into a PhD, a pinnacle he had been working towards for manyyears.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 StatutoryDeclaration of Ms Kadishi Keshava (attachment 3) who is a female housemate who has sharedpremises 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 13March 2021 (attachment 4), who is a friend of the applicant and who in her statutory declarationdescribes the applicant as ‘dependable, responsible, honest and courteous’. She further states: ‘I am awareof the charges on him, I still assure that Faizan cannot be a threat to the community considering his behaviourpeople, specially females’We also refer to the Statutory Declaration from Tariq Mahmood Khan dated 14 March 2021. MrTariq Mahmood Khan is a Research Fellow at Deakin University in the School of InformationTechnology. Mr Khan states that he met the applicant in November 2019 when he wasapproached by the applicant to continue his research work with Mr Khan. Mr Khan discussesboth the projects they worked on together and the publications they jointly shared. He states thatthe applicant ‘was self-motivated, dedicated and hard working’ he goes on the say ‘I am surprised to hearabout 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 theCommonwealth Bank. This letter can be signed and forwarded to the Department ofImmigration or you can contact him directly on his mobile. The applicant was employed withinthis security service over a three month and his supervisor stated that the applicant ‘was respectfulto all the female employees around the office’. Further he states that ‘We have not come across any complaintsabout his work or behaviour around people. we have not come across any misconduct or behavioural issues fromFaizan’s end. He managed his responsibility with integrity.’As advised in the Department’s letter of 3 March 2021, you ‘make no assessment whatsoever oncriminal guilt. However, the ground for cancellation at section 116(1)(e)(i) does not require a finding of guilt to beenlivened. I have reviewed the alleged facts and I consider the alleged behaviour to be serious in nature as it relatesto sexually motivated offences’.We submit that cancelling this visa serves no purpose. Firstly, the applicant has not beengranted bail. Secondly, the applicant, we are informed, has never been charged or convicted ofany 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 hisPhD (at present), and continue on his career trajectory. If the applicant’s visa is cancelled, he willnot have work rights while he waits for his court hearing date, which could be a long time awaygiven the delays caused by covid, and he will have no means of support. The applicant mustremain 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 fornearly 3 years and prior to these allegations and charges, has had no issues in the Australiancommunity whatsoever. We have provided references from a female housemate, a female friendand his colleague at the university. Each of them has described the applicant as a thoughtful andrespectful 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 allthe reasons stated above.”Statutory Declaration – Ms Adithi Keshava (House Share-mate)