Foai (Migration)

[2020] AATA 5603

Foai (Migration) [2020] AATA 5603 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Donny Paul Foai

CASE NUMBER:  1926899

HOME AFFAIRS REFERENCE(S):          BCC2019/1334836

MEMBER:James Lambie

DATE:6 November 2020

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 06 November 2020 at 3:59pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ground for cancellation – risk to safety of Australian community or individual – past criminal convictions ­– public nuisance – tainted property – breach of bail condition – unproven charges pending before the court – serious nature of the outstanding charges – strictness of bail conditions – propensity to violence – personal circumstances – 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 11 September 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)(i) on the basis that the matters with which he has been charged and of which he has been convicted show that his presence in Australia may be 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 3 November 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Foai’s partner, Glennis Hokai, and Ms Sarah Harder.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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)(i). 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?

6. 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].

7. 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.

8. Mr Foai arrived in Australia with his parents and four siblings in 2000, at the age of 14. He attended school in Queensland until halfway through year 11. He says that his family was struggling at the time and needed him to work. Since then he has held a variety of jobs, most of them labouring in various capacities in the construction industry. He does not hold formal qualifications. He has been in a relationship with Ms Hokai, off and on, since 2004. They have five children aged between two and 10 years and are expecting another in December.

9. Mr Foai has a criminal record as follows:

Date	Offence	Result
8 September 2006	Commit public nuisance	Convicted and fined $150 (on 25 September 2006)
4 July 2008	Commit public nuisance	Convicted and fined $150 (on 31 July 2008)
21January 2017	Receiving tainted property	Convicted and placed on 9 months’ probation (on 31 July 2018)
10 April 2017	Breach of bail condition	Convicted and fined $300 (on 26 April 2017)
16 October 2019	Breach of bail condition	Convicted and fined $400
6 November 2019	Breach of bail condition	See above
7 November 2019	Obstruct police officer	See above

The 2019 offences were all dealt with in the Ipswich Magistrates Court on 21 November 2019 and dealt with together.  The bail conditions apply to the matter of the outstanding charge.  The outstanding charge is that, between 25 October 2017 and 11 September 2018, Mr Foai carried on the business of unlawfully trafficking in methamphetamine and that he was a participant in a criminal organisation.  This charge is objectively serious.  Mr Foai is still awaiting committal proceedings.  The particulars of the charge are to the effect that Mr Foai’s role in the criminal organisation was to threaten and intimidate people who owed debts to the head of the organisation. It is further alleged that Mr Foai and another person were intercepted on their way to collect a debt by way of a home invasion in Toowoomba.  Mr Foai denies the charge. He tendered a letter from his solicitors, waiving legal professional privilege, to the effect that they anticipate that he will have no case to answer.

1. I place no weight on the public nuisance matters from 2006 and 2008. The tainted property conviction was in relation to a matter in which Mr Foai was originally charged with attempting to enter a dwelling with intent to commit an indictable offence at night, dangerous conduct with a weapon, and burglary with intent to commit an indictable offence. The downgrading of these offences to receiving tainted property represents a very significant discount, the allegedly violent components of the original charges having been dropped. This is a matter to which I give some weight in his favour in my assessment of any alleged propensity to violence.   In my view, therefore, the matter of the outstanding charge is by far the most serious in Mr Foai’s criminal history. 

2. The question of whether the ground for cancellation is established under s. 116(1)(e) when there are unproven criminal charges pending against a visa holder was considered in Gong v Minister for Immigration and Anor [2016] FCCA 561, [41] to [63].

3. Subsection 116(1) speaks of a risk that the presence of a visa holder ‘is or may be’ to the health or safety of the Australian community. There is no definition of risk in the act or regulations and accordingly the plain English meaning applies: the chance of injury, or loss, or hazard.

4. In assessing whether the ground is established, the Tribunal must have regard to the information and evidence available at the time of the review decision, including the circumstances of the applicant at that time.

5. In considering the question of whether a visa holder may convey a risk within the meaning of the subsection, it is relevant to consider past conduct, including the possibility that an event occurred in the past. The laying of criminal charges may support a finding that an event occurred in the past or, at least, that there is a possibility the events which are the subject of the charges occurred. It does not impinge on the presumption of innocence to have regard to those unproven charges in making an assessment of risk.

6. When charges are laid by police, it can be inferred that the police had some basis for laying the charges but it cannot be concluded, simply on the existence of the charges, that the basis for the charges are reasonable. Nor can the Tribunal undertake a meaningful assessment of the prospects or strength of the charges in the absence of undertaking its own assessment of the evidence or even the results of a concluded committal process.

7. The role of the Tribunal in assessing the question of risk for the purposes of subsection 116(1)(e) is difficult when there are unproven charges pending before the court, particularly when those charges are very serious, as they are in this case. The questioning of an applicant must be approached with considerable caution and with full regard to the applicant’s privilege against self-incrimination. Eliciting such information, even following a warning, is unlikely to yield a meaningful response and it would be unreasonable in the circumstances to draw a negative inference from such a response.

8. It would therefore be appropriate to give the existence of charges weight when assessing the risk, but the amount of weight is a difficult question. Charges that are very serious in nature and go to the centre of the health, safety and good order of the Australian community may carry significant weight well when assessing risk for the purposes of establishing whether the ground for cancellation exists. This is consistent, as observed by Smith J, with the logic that underlies the ‘what if I am wrong’ test in refugee law. Therefore, the more serious the charges, the more weight should be given to the existence of the charges. Where the consequences of the risk are likely to be serious it may be appropriate as an exercise of reasonable speculation to give the charges significant weigh.  If charges are not serious, it may be appropriate to give unproven charges less weight in assessing the risk.

9. Nevertheless, evidence of charges will be one of several factors that should be taken into account in making the assessment of whether there may be a risk to the community.  All the available information must be considered, including whether the visa holder is on bail.  The fact that a court, after considering the available evidence, refuses bail would carry considerable weight for the Tribunal in assessing risk although that may be a question about whether there is or may be a risk to the Australian community when the visa holder is incarcerated. If a court or bail authority grants bail but imposes strict conditions this may also carry considerable weight on the basis that the court or by authority has assessed the risk is sufficient to warrant conditions. On the other hand, the fact that they was granted without condition would not of itself support a finding that the applicant is or may not be a risk because the test under the bail act is whether there is an unacceptable risk which is measured in terms of whether the accused will, for instance, commit a serious offence or endanger the safety of individuals, not whether they may do so.

10. Ultimately the question of whether a person is or may be a risk to the Australian community for the purposes of subsection 116(1)(e) is one of fact based on all of the information available to the Tribunal at the time of its decision. This information may include the existence of charges, the nature of those charges, whether the visa holder has pleaded guilty to those charges or whether the visa holder has been committed for trial, whether the visa holder has been granted bail and, if so, the basis of any conditions imposed and, finally the personal circumstances of the applicant and how those circumstances may impact on any risks.

11. With these considerations in mind, I now turn to the specific matters before the Tribunal.  Mr Foai asked that, in addition to his denial of the allegations, I take into account that he was not specifically named in the communications intercept giving rise to his arrest. He also asked that I take into account that no actual offence of violence was alleged to have taken place. I place a small degree of weight on those matters.

12. I have also taken into account the fact that Mr Foai has been granted bail and that the conditions of that bail are not particularly strict. I give some weight that matter in his favour, lessened to a degree by the fact that he has some convictions for breaching the terms of his bail. However, it would appear from the facts and the penalties imposed that the breaches have not been serious and that he has largely complied with the conditions.  He has been fully compliant throughout 2020.

13. I give a considerable degree of weight to the fact that Mr Foai has no previous convictions for violent offences. I also give weight to the fact that, between 2008 and 2017, with the exception of some traffic offences, he has no criminal record to speak of. Both Mr Foai and Ms Hokai (whose evidence I credit) told the Tribunal that his coming to the attention of the police in 2017 might be an incident of his renewed contact with a relative who is well known to the police. In the two substantive criminal matters that have arisen in that time, he is not alleged to have been the principal offender. I give a minor degree of weight to that consideration.

14. The matter to which I give the greatest weight is that the matter charged is not proven and features in a criminal history is not demonstrably violent. On the matters alleged in the outstanding charge, I have given some weight to the facts that there is very little detail in the charge sheet as to the content of the communications intercepts relating to Mr Foai, that the detail that is provided does not clearly refer to him and that it would appear from the redactions in the charge sheet that the address at which he was seen was not the one referred to in the intercepts.  Those and other matters, as I said to the applicant at the hearing, remain to be resolved by the court and, notwithstanding any decision made by this Tribunal, were they to be resolved against him would have obvious implications for his visa status. He said that he fully understood this.

15. I have also given some weight to his personal circumstances.  He has five young children, with a sixth due before the end of the year. He has the full support of his partner and has at least one solid employment offer should his visa be restored. I was also asked to give some weight to the fact that, despite being an unlawful non-citizen, the Department has shown no interest in having him placed in detention. The applicant, on having been informed that his visa had been cancelled, presented himself to Ipswich police station in order to engage with the consequences of the decision. These matters weigh against the risk that his presence in Australia poses to the community.

16. On the basis of all of the material available to me, I cannot be satisfied that Mr Foai’s presence 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.

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

    DECISION

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

    James Lambie
    Senior Member