ADOBOR (Migration)

[2018] AATA 846

ADOBOR (Migration) [2018] AATA 846 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr OSCAR KOFI ADOBOR

CASE NUMBER:  1804164

DIBP REFERENCE(S):  BCC2017/4717096

MEMBER:Irene O'Connell

DATE:20 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

Statement made on 20 March 2018 at 3:07pm

CATCHWORDS
Migration – Cancellation – Bridging B (Class WB) visa – Subclass 020 (Bridging B) – defective notification letter – Tribunal has jurisdiction to review the cancellation decision under s.338(4) - cancellation of visa under s.116(1)(e)(ii) following charge with criminal offence - whether the applicant is or may be, or would or might be, a risk to the health, safety of an individual or individuals – ground for cancellation established – consideration of discretion – cancellation affirmed

LEGISLATION
Migration Act 1958, ss 116, 127, 338
Migration Regulations 1994, r 4.10

CASES
Gong v MIBP [2016] FCCA 561
SZOFE v MIAC (2010) 185 FCR 129

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 2 February 2018 by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 020 (Bridging B) visa under s.116(1)(e)(ii) of the Migration Act 1958 (the Act). The delegate found that the presence of the applicant in Australia may be a risk to the safety of an individual. On 16 February 2018 the applicant sought review of this decision.

   Background

2. The applicant, who is a citizen of Ghana, arrived in Australia on 22 July 2012 on a student visa. He completed a course in disabilities studies and commenced working in a variety of part-time jobs. He lodged an application for a partner visa following his marriage to an Australian citizen and was granted a bridging visa on 11 September 2014. His application for a partner visa was refused and the applicant sought review of this decision. On 21 February 2017 the sponsor notified the Department that she was withdrawing her sponsorship as the marriage had broken down and she was intending to commence divorce proceedings.

3. The applicant was arrested on 3 November 2017 and charged with aggravated sexual assault arising from an incident which took place on 2 September 2017. He was placed in the Remand Centre at Silverwater. On 14 December 2017 he was granted conditional bail. On 6 February 2018 on providing the required surety he was released from the Remand Centre. However as the delegate had cancelled the applicant’s bridging visa on 2 February 2018 he was taken into immigration detention at Villawood Immigration Detention Centre.

   Does the Tribunal have jurisdiction?

4. A threshold issue is whether or not the applicant has lodged his application for review out of time with the resulting effect that the Tribunal does not have jurisdiction to review the matter.

5. Department records indicate that the applicant was notified of the cancellation of his visa in two manners. A notification letter, dated 2 February 2018, was posted to the applicant by registered post at the address of the Metropolitan Remand and Reception Centre at Silverwater. It would seem that the applicant had left the Remand Centre prior to the arrival of the letter and that a copy of the notification letter (dated 2 February 2018) was handed to the applicant at Villawood Detention Centre on 8 February 2018.

6. Section 127(2) of the Migration Act sets out the prescribed manner for the notification of a decision to cancel a visa. This is that:

   (a)   it must specify the ground for cancellation and

   (b) state whether the decision is reviewable under part 5 or part 7 and

   (c) if the former Visa holder has a right to have the decision reviewed under part 5 or part 7 state

   (i) that the decision can be reviewed and

   (ii) the time in which the application for review may be made and

   (iii) who can apply for the review and

   (iv) where the application for review can be made

7. The notification letter provided to the applicant stipulated the prescribed time frame for the applicant to seek review of the decision to cancel his visa as ‘the end of 7 working days after the day on which you [are] taken to have received this letter. As this letter was sent by mail from a place in Australia to an address in Australia you are taken to have received this letter 7 working days after the date of the letter’.

8. The applicant lodged his application for review whilst in immigration detention; having been placed there because of the cancellation of his bridging visa. In these circumstances the decision was reviewable under s.338(4) of the Act and the prescribed time frame for the applicant to seek review was in fact 2 working days, as stated in r.4.10(2)(a) of the Migration Regulations 1994, not the 7 plus 7 working days set out in the notification letter provided to the applicant.

9. As the notification letter provided to the applicant was defective as it was not in accordance with s.127(2)(c)(ii) the applicant has not been properly notified. The prescribed period for the applicant to lodge his application for review does not commence until he is properly notified.

10. Despite the fact that the applicant has not been properly notified failure to give notification of a decision does not affect the validity of the decision (see s.127(3) of the Act). Further a valid review application can be lodged so long as there is a reviewable decision (SZOFE v MIAC (2010) 185 FCR 129).

11. The Tribunal finds that there is a reviewable decision and a valid application for review before it. As the applicant has received a defective notification the relevant prescribed timeframes are not operational. Accordingly the Tribunal has jurisdiction to hear the matter.

    RELEVANT LAW

12. 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. Section 116(1)(e) stipulates a ground for cancellation as ‘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.’

13. If satisfied that the ground for cancellation is made out, the decision maker is required to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

14. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.

15. However, the Department’s Procedures Advice Manual (PAM3) on ‘General visa cancellation powers’ provides guidance on matters relevant to the exercise of discretion and covers such matters as:

    (1)the purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

    (2)the extent of compliance with visa conditions;

    (3)the degree of hardship that may be caused (financial, psychological, emotional or other hardship);

    (4)the circumstances in which the ground for cancellation arose;

    (5)past and present conduct of the visa holder towards the Department;

    (6)whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, whether indefinite detention is a possible consequence of cancellation and whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister's intervention;

    (7)whether there would be consequential cancellations under s.140 of the Act.

    EVIDENCE BEFORE THE TRIBUNAL

16. The Tribunal has before it Departmental file number BC C2017/4717096 in respect to the cancellation of the applicant’s bridging visa. This file contains:

    ·A notice of intention to consider cancellation (NOICC) under section 116 of the Act (dated 5 January 2018).

    ·The applicant’s response to this notice (dated 16 January 2018).

    ·The decision record of the delegate (dated 2 February 2018).

    ·The NSW police fact sheet (dated 3 November 2017) setting out the details of the arrest and charging of the applicant under s.61J(1) Crimes Act 1900.

    ·Email correspondence to the Department from [Applicant’s former partner] (dated [in] February 2017) withdrawing her sponsorship of the applicant’s partner visa.

17. The Tribunal also has before it the application for review and written submission (dated 16 February 2018). In this written submission the applicant sets out the response he provided to the Department to the NOICC. He states that the charges are false. He is not a risk to the Australian community or any individuals and this is evidenced by the fact that the intervening two months between the alleged event and his charging he posed no risk to any person.

18. The applicant sets out his bail conditions which include a nightly curfew, reporting three times a week, non-association with third parties involved with his criminal proceedings and a surety of $150,000. He indicates that he has never committed a criminal offence or hurt anyone since his arrival in Australia and he is concerned for his wife should his visa be cancelled.

19. The applicant provided the following letters of support:

    ·Halima Peacock who has known the applicant for five years and states that he believes the applicant would not be a threat to society and ‘should the allegation before him be found to be true I’m confident to say this will remain a one-off incident’.

    ·Mr Mohammed Koroma, Case Manager, Humanitarian Settlement Program who has known the applicant since 2013 through attendance at church. He states that the church community have developed a module that will help the applicant ‘to rehabilitate his mind and behaviours’.

    ·Mr William Kessie, the applicant’s brother.

    ·Pastor Chris Bonsu from the Living Word Church International who has known the applicant since 2012 and indicates that the applicant is a regular participant in Church activities.

    ·Isaac Akomeah, Lifestyle Assistant, Australian Foundation for Disability has known the applicant since 2016 through their membership of the living Word Church International.

20. The applicant appeared before the Tribunal on 7 March 2018 to give evidence and present arguments. The hearing was conducted in the English language and the applicant indicated that although he did have legal representation his representative would not be present for the hearing.

21. The Tribunal informed the applicant of the privilege against self-incrimination, particularly given that at the time of the hearing the criminal charges against the applicant were pending. By way of the requirements of s.359AA the Tribunal raised with the applicant elements of the police fact sheet and in particular the allegation that he threatened to harm the victim should she make any disclosures about the alleged incident on 2 September 2017. The applicant indicated that he would be denying all charges.

22. The applicant detailed his immigration history and his family circumstances. He indicated that he is separated from his partner; the subject of his partner visa. He indicated that he has one son by a previous relationship. The Tribunal discussed with the applicant issues surrounding the exercise of discretion in respect to whether or not his visa should be cancelled. The applicant indicated that he found immigration detention difficult in terms of his living arrangements but also financially as he is unable to work.

    FINDINGS AND REASONS

23. On the basis of the police fact sheet and on the basis of the applicant’s evidence to the Tribunal, the Tribunal finds that the applicant has been charged with a criminal offence of aggravated sexual assault. The Tribunal further finds that as a result of these charges bail conditions as itemised by the applicant in his submission to the Tribunal were imposed on the applicant.

24. The Tribunal acknowledges that in both his written statements and oral evidence the applicant has maintained his innocence. The Tribunal also acknowledges that the applicant maintains that he is of no risk to any individual(s) or the community, he has no criminal history in Australia and in the intervening months between the claimed offence and his arrest he posed no risk to any individual or individuals.

25. As set out above current case law suggests that the threshold for engaging s.116(e) of the Act is a low threshold. The laying of charges, without the determination of guilt, may be sufficient to ground an assessment of ‘risk’. As Smith J observed, in Gong v MIBP [2016] FCCA 561 at [41], risk can arise on the possibility that some event occurred in the past.

26. Therefore, although the applicant maintains his innocence, the existence of the charge is relevant to the Tribunal’s consideration as to whether the applicant may or might pose a risk. The charge relates to an offence that is of a serious nature. The Tribunal places weight on the charge as an indicator that the applicant may or might be a risk to the safety or good order of the Australian community or a segment of the Australian community.

27. As discussed with the applicant at the hearing an additional factor in this matter is the allegation evidenced in the police fact sheet that the applicant threatened the alleged victim with harm should she make any disclosures of the offence. While noting that the applicant denies this the Tribunal places weight on the alleged threat as an indicator that the applicant may or might be a risk to the safety of an individual.

28. As set out above bail conditions were imposed on the applicant pending the outcome of the charges. The applicant has argued the existence of these bail conditions and his undertaking to adhere to them should be read as indicators he does not pose a risk to individual(s) or the Australian community. Indeed on one view the imposition of reporting conditions and payment of a surety may be seen to mitigate the risk the applicant may or might pose to an individual.

29. On another view the existence of such conditions may be read as an indicator that the applicant may or might pose a risk to others as the Court has seen fit to impose a curfew on the applicant and reporting conditions as well as no contact with a third party. As such the Tribunal does place weight on these bail conditions as indicators that the applicant may or might be a risk to an individual.

30. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3) consideration needs to be given to whether the power to cancel the visa should be exercised.

    Consideration of discretion

31. As noted above there are no matters specified in the Act or Regulations that are required to be considered in the exercise of discretion. In respect to matters identified in PAM3, to the extent that they arise on the material, the Tribunal notes the following.

32. There is no history before the Tribunal of the applicant breaching his previous visa conditions. He remains in Australia awaiting the outcome of his partner visa review and criminal proceedings. The Tribunal does not accept the applicant’s contention that his visa application places hardship on his partner given she is now separated from the applicant and is instigating divorce proceedings.

33. The Tribunal accepts that because of the cancellation of his bridging visa the applicant is held in immigration detention and accepts that this imposes hardships on the applicant. The Tribunal accepts these hardships are as the applicant itemised in his oral evidence that of his living arrangements with other detainees with whom he does not feel safe and who are smokers. The Tribunal also accepts that whilst the applicant is in immigration detention he is unable to work and that places him under some financial stress.

34. However the Tribunal is satisfied that the applicant’s immigration detention is a temporary circumstance and not indefinite. His immigration status will be eventually determined by the resolution of the outstanding review of his partner visa. His status will be further resolved by the outcome of his criminal charges set for hearing at Court on 29 March 2018.

35. The Tribunal does not accept that the cancellation of the applicant’s visa has any ramifications in respect to Australia’s international obligations. The Tribunal notes that the applicant has a child but this child resides in Ghana and as such the best interests of this child are unaffected by the cancellation of the applicant’s visa.

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

37. The Tribunal affirms the decision to cancel the applicant’s Subclass 020 (Bridging B) visa.

    Irene O'Connell
    Deputy Division Head