Daniel (Migration)

[2017] AATA 2803

Daniel (Migration) [2017] AATA 2803 (21 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tope Daniel

CASE NUMBER:  1611023

DIBP REFERENCE(S):  BCC2016/1429068

MEMBER:Michael Cooke

DATE:21 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

Statement made on 21 August 2017 at 4:14pm

CATCHWORDS

Migration – Cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Applicant a risk to the safety of the Australian community – Applicant charged with serious sexual offences – Applicant found not guilty

LEGISLATION

Migration Act 1958, s 116

CASES

Dalla v MIBP [2016] FCCA 1341
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 July 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 820 (Spouse) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant had been charged with serious sexual offences and may prove a risk to the safety of the Australian community. 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 15 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsoring wife.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing via telephone and gave an update and an oral representation regarding his client.

5. 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

6. 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).

7. This ground states:

   (1) Subject to subsections (2) and (3) the Minister may cancel a visa if he or she is satisfied that:

   (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 Australia community or a segment of the Australian community; or the health or safety of an individual or individuals.

8. 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.

9. The applicant has informed through his representative that the Local Court found that there was sufficient evidence to place Mr Daniel on trial in the Supreme Court on two counts of unlawful sexual intercourse without consent against Ms Casey. The previous charge involving a minor has been withdrawn by the prosecution. Importantly, his defence solicitors (The NT Legal Aid Commission) insist that the only reason for the applicant’s bail being revoked in March 2016 was because of the additional charge laid in relation to the complaint by Ms Casey and not for breaching ‘his curfew condition’ or ‘his parole obligation’ as referred to by the delegate in her decision to cancel the applicant’s visa.

10. The applicant’s representative has updated the Tribunal on his client’s status since being requested to do so at the hearing.

    Mr Daniel's matter proceeded to oral preliminary examination on 20 September 2016.

    The Local Court found that there was sufficient evidence to place Mr Daniel on trial in the Supreme Court on two counts of unlawful sexual intercourse without consent against Ms Casey. This is not a finding regarding the likely guilt or otherwise of Mr Daniel. It is an administrative process only. The law does not permit the complainant to be called to give evidence at the preliminary examination, but the complainant's statement was tendered into evidence.

    The matter was adjourned for mention in the criminal call-over list in the Supreme Court on 19 October 2016. This is an administrative, case management date. Mr Daniel did not appear on this date (as is usual).

    Mr Daniel's matter has been set down as follows:

    ·30 November 2016 for a mention in the criminal call over list in the Supreme Court. Mr Daniel will not appear in person on this date as he is excused from attendance as it is an administrative mention;

    ·20 March 2017 for a pre-recording of Ms Casey's evidence, and argument about pre-trial issues before a Judge alone;

    ·21 March 2017 for trial before a jury for four days.

    This was the earliest trial date we could get in Alice Springs. It is unlikely that we will get an earlier date, although the court is aware Mr Daniel is in custody without prospect of bail at the moment.

    The prosecution has not yet provided me with a final Indictment regarding what charges will proceed to trial on 21 March 2017. The prosecutor was intending to speak with the complainant before she finalised her decision on this.'

    Does the ground for cancellation exist?

11. The Tribunal has listened to the applicant’s explanation of his situation and has also read and listened to his representative’s submission regarding his case. The Tribunal has provided ample time for updates on the applicant’s case status from his representative. It has given him procedural fairness in view of the seriousness of his situation. The Tribunal has also heard from the applicant’s wife who has a two year old child and was pregnant at the time of the hearing in in September 2016.

12. The key points the representative makes is that:

    ·    “this is not a finding regarding the likely guilt or otherwise of Mr Daniel. It is an administrative process only”.

    ·    Mr Daniel no longer faces any charges in relation to a minor and

    ·    There are serious deficiencies in the evidence against Mr Daniel in relation to the remaining 2 charges.

    ·    Mr Daniel does not have any record of having breached any condition of bail or parole.

    ·    This with his clients clean police record thus far indicates the risk of his presence to the safety of the community at large is negligible.

13. The question arises before the Tribunal as to whether the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australia community or a segment of the Australian community; or the health or safety of an individual or individuals.

14. Smith J in Gong v MIBP [2016] FCCA 561 recognised ‘the possibility that something occurred in the past may have some logical bearing’ on whether there ‘may be a risk’, but the fact that there are outstanding charges is not sufficient to meet the test that there is a risk.

15. It was found that, although it is not necessary ‘to engage in a pre-trial determination of the breach of law’ (Dalla v MIBP [2016] FCCA 1341), it is necessary when relying on outstanding charges to set out the basis on which those charges satisfy you that the applicant’s presence in Australia would or might pose a relevant risk.

16. The issue in this case is whether the Tribunal is satisfied that the applicant presents a future risk and, therefore, the issue cannot be satisfied solely on the basis of the applicant having been indicted for past behaviour. That test is forward-looking and depends on the Tribunal’s satisfaction of future risk.

17. The Tribunal has awaited the outcome of the Supreme Court case. The Tribunal has considered the rubric in Gong v MIBP regarding outstanding charges as indicative of future risk. The Tribunal was informed on 11 August 2017 that the applicant was found not guilty by the Supreme Court of the Northern Territory of the outstanding criminal charges he faced (T1, f.55).

18. For these reasons, the Tribunal is not satisfied that 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 Australia community or a segment of the Australian community; or the health or safety of an individual or individuals.

19. The Tribunal is satisfied that the ground for cancellation in s.116(1)(e) has not been made out.

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

    DECISION

21. The Tribunal sets aside the decision to cancel the applicant’s Subclass 820 (Spouse) visa.

    Michael Cooke
    Member