Burns (Migration)

[2019] AATA 3359

Burns (Migration) [2019] AATA 3359 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jeffrey Robert Burns

CASE NUMBER:  1904389

HOME AFFAIRS REFERENCE(S):          BCC2018/5696178

MEMBER:Ann Duffield

DATE:28 March 2019

PLACE OF DECISION:  Brisbane

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 28 March 2019 at 12:41pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – ten counts of Contravention of Domestic Violence Order – six counts of Common Assault Domestic Violence – compliance with bail conditions – supportive character references – strong family support – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 February 2019 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 (the Act).

2. The delegate cancelled the visa under s.116(1)(e)(ii)on the basis that the applicant has been charged with offences which led the delegate to form a view that the applicant is a risk to the health or safety of an individual or individuals. The delegate was not required to find that there was a direct, solid or even certain foundation of this risk before the power to cancel can arise. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 28 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister and brother.

4. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be aside.

BACKGROUND

1. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.

2. The applicant is a citizen of New Zealand born on 27 September 1989 (29 years old). He first arrived in Australia on 24 August 2013 and has travelled in and out of Australia on several occasions since his first entry.

3. The applicant has been charged with a number of domestic violence offences and contravention of domestic violence orders between around July 2018 and November 2018 against the same alleged victim. They total ten counts of Contravention of Domestic Violence Order and six counts of Common Assault Domestic Violence. All charges are progressing through the Brisbane Magistrates Court, with the matters next scheduled for hearing on 3 and 4 June 2019.

4. The applicant has minimal bail conditions and a surety of $1000.00. These conditions were not enlarged at his second court hearing.

10.It is alleged that the applicant has sent hundreds of harassing text messages to the alleged victim in contravention of protection orders. It is also alleged that the visa holder attended the home of the alleged victim where he physically assaulted her and threated to kill her and himself.

11.The delegate wrote to the applicant informing him of the intention to consider cancelling his visa on 17 January 2019. The applicant responded on 6 February 2019 declaring that he was innocent of all charges and would defend himself vigorously. The delegate received a number of strongly supportive character references for the applicant from friends and family members, including an ex-girlfriend, of 12 months.

12.The delegate nevertheless cancelled the applicant’s visa on 20 February 2019 and he was taken into detention. The applicant applied for a bridging visa on 26 February 2019 which was refused on 7 March 2019. The applicant appealed that refusal to a differently constituted Tribunal and appeared before that Tribunal on 14 March 2019. The Tribunal remitted that application back to the Department with a direction that the applicant met the relevant criteria. The Department granted the Bridging Visa as directed on 21 March 2019 but immediately cancelled it. The applicant has therefore remained in detention for the entire period.

13.The Tribunal issued a summons to the Queensland Police Service for the applicant’s person history, charge sheets and other documents relating to his past and outstanding charges in the State of Queensland. The Tribunal put this information to the applicant in writing on 20 March 2019 seeking his comments and informing him that, depending upon his comments or response to that information, it would form the reason or part of the reason for affirming the decision under review. The applicant was informed that he could respond in writing or wait until the scheduled hearing to discuss those matters with the Tribunal.

14.On 27 March 2019 the applicant, through his representatives responded stating that the applicant is not a risk to the alleged victim. They claim that the applicant has not contacted the alleged victim since November 2018 and has complied with all his bail conditions with no reported breaches. The parties also provided the Tribunal with a copy of the differently constituted Tribunal’s decision to remit the refusal of the applicant’s bridging visa application.

15.The Tribunal also notes in this regard that the alleged victim has varied the original protection order which applies to the applicant until 6 August 2023.

16.The Tribunal has carefully considered all the documentary evidence before it as well as the oral evidence given at the scheduled hearing.

CONSIDERATION OF CLAIMS AND EVIDENCE

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

Does the ground for cancellation exist?

s.116(1)(e) - risk to Australian community or individual

18.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].

19.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.

20.The applicant’s sister has told the delegate that the family have rallied around the applicant and changed his telephone, telephone number and deleted his Facebook profile for his protection. In her evidence at the hearing, the applicant’s sister clarified with the Tribunal the intention behind the families actions in this regard. She said it was not, as implied by the delegate, because they did not trust the applicant not to contact the alleged victim, but because there was evidence that would support him on his phone and he should therefore use another one. The applicant’s sister and brother also told the Tribunal that the applicant’s Facebook page was closed because the alleged victim had access to it and it was to protect the applicant from falling foul of his protection order conditions by reason of the actions of the alleged victim that the page was closed. The Tribunal accepts this evidence.

21.The applicant has been working full time since his arrival in Australia, is integral to his Church community and wishes to carry on with the Christian work he has been doing through them. He has undertaken a 16 week Responsible Men’s Programme.

22.The applicant submits that he has been on bail in relation to these matters and has abided by all the conditions of his bail.

23.The applicant and his adviser submits that, as such, the applicant is highly unlikely to be a risk to any individual or individuals in the Australian community, in particular the alleged victim. The Tribunal notes that the applicant has abided by his bail conditions since he was charged. The Tribunal views this in a strongly positive light.

24.The applicant’s evidence, along with the evidence of his family members, was frank and compelling.

25.The Tribunal gives significant positive weight to the applicant’s good behaviour and his compliance with his bail conditions which were in place prior to his being taken into detention, noting that this was only for a short period of time. He also has the strong support of his family members who understand, along with the applicant, the significant penalties associated with approaching the alleged victim, including the potential of having his visa cancelled yet again under different provisions. The Tribunal believes this is strong evidence that the applicant does not pose a risk to the health, good order or safety of the community or to the safety of the alleged victim.

26.It seems to the Tribunal that if the Department has a strong view that the applicant should not hold a substantive visa then it is within their purview to consider cancelling the visa under prescribed grounds as set out in s.116(g) of the Migration Act, either immediately, or if the charges against him are made out at the court trial, at that time.

27.The Tribunal, having weighed all of these considerations, is not satisfied that the case can be made out that the applicant 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.

28.For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(e)(ii) exists. It follows that the power to cancel the applicant’s visa does not arise.

29.Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

DECISION

30.The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Ann Duffield
Senior Member