Ganehi Arachchilage (Migration) - [2018] AATA 2519

Ganehi Arachchilage (Migration) [2018] AATA 2519 (7 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muditha Lankathilaka Ganehiarchchi Ganehi Arachchilage
CASE NUMBER:  1724383
HOME AFFAIRS REFERENCE(S):         BCC2017/2957311
MEMBER:L. Hawas
DATE:7 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 07 June 2018 at 3:34pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the presence of the applicant 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 – Where the applicant has been charged with knowingly possess child abuse material – Consideration of risk - Serious nature of charge – Laying of charge infers a sufficient degree of risk – Whether the discretion to cancel should be exercised – Degree of hardship if visa were to be cancelled – Degree of risk outweighs degree of hardship – Decision affirmed
LEGISLATION
Crimes Act 1958 (Vic), ss 51G, 51T
Crimes Amendment (Sexual Offences) Act 2016 (Vic), s 70
Migration Act 1958 (Cth), ss 48, 116, 349
Migration Regulations 1994 (Cth), r 2.12, Schedule 4, PIC 4013(3)
CASES
Chow v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1459
DPP v Kear [2006] NSWSC 1145
Gong v Minister for Immigration & Anor (2016) 309 FLR 151
He Kaw Teh v R (1985) 157 CLR 523
McCalla v R (1988) 87 Cr App R 372
Minister for Multicultural Affairs v Rajalingam [1999] FCA 719
MZAJA v Minister for Immigration & Anor [2017] FCCA 448
Police v Kennedy (1998) 71 SASR 175
R v Atkins [2000] 2 Cr App R 248
R v Bowden [2000] 2 All ER 418
R v Smith [2003] 1 Cr App R 13
R v Wescott Vic CC 26/5/2005
Re Drake (No. 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Singh (Migration) [2017] AATA 850
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
Summary

The applicant is a 23-year-old single man from Sri Lanka. He arrived in Australia on 23 February 2016.[1] He came to Australia on a TU 573 Higher Education Sector student visa, which the department had granted to him on 17 February 2016.[2] He came to Australia on the grounds that he would study for the Foundation Course in Engineering at La Trobe University. He commenced that course upon arriving in Australia but he did not complete the course. He transferred to other study.[3] But for its cancellation, the applicant’s visa would have expired on 15 March 2021.[4]
[1] Delegate’s decision dated 3 October 2017 at page 1. The applicant gave the Tribunal a copy of the delegate’s…

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.

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Details

AGLC: Ganehi Arachchilage (Migration) [2018] AATA 2519
Case: [2018] AATA 2519
Decision Date: 7 June 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by an applicant whose Student (Temporary) (Class TU) visa, subclass 573, had been cancelled by a delegate. The cancellation was based on the ground that the applicant's presence in Australia was, or might be, a risk to the health, safety, or good order of the Australian community. This risk was inferred from the applicant having been charged with knowingly possessing child abuse material, an offence carrying a maximum penalty of 10 years imprisonment.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(i) of the Migration Act 1958 had been made out, and if so, whether the discretion to cancel the visa should be exercised. The applicant argued that the charge did not necessarily equate to guilt, presenting submissions that detailed the elements of the offence, particularly the requirement for intention and the potential for material to be downloaded to a computer's temporary internet cache without the user's knowledge or intent to possess it. The Tribunal also considered the degree of hardship the applicant would suffer if the visa were cancelled.

The Tribunal reasoned that the serious nature of the charge, even if not yet proven in court, inferred a sufficient degree of risk to the community. While acknowledging the applicant's submissions regarding the defence to the charge and the potential for innocent possession through internet caching, the Tribunal found that the risk posed by the alleged conduct outweighed the hardship the applicant would experience if the visa were cancelled. Consequently, the Tribunal concluded that the proper exercise of its discretion favoured affirming the delegate's decision.

The Tribunal affirmed the delegate's decision to cancel the applicant's Subclass 573 Higher Education Sector 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:(a)Finds the ground for cancelling the applicant’s visa under s. 116(1)(e)(i) has been made out;(b)Considers the proper exercise of its discretion favours cancelling the applicant’s visa; and(c)Affirms the delegate’s decision to cancel. The charge against the applicant and the evidence before the Tribunal about the charge [Information removed]. [Information removed]. [Information removed]. [Information removed]. [Information removed].[6][6] [Footnote removed]. [Information removed].[7] [7] [Footnote removed]. [Information removed].[8][8] [Footnote removed]. [Information removed][9].[9] [Footnote removed]. [Information removed].[10] [10] [Footnote removed]. [Information removed].[11][11] [Footnote removed]. [Information removed]. [Information removed]. [Information removed]. [Information removed].[12][12] [Footnote removed]. [Information removed].[13][14][13] [Footnote removed].The applicant’s defence to the charge and arguments on risk The applicant’s solicitor sent the Tribunal detailed written submissions dated February 2018 that addressed the applicant’s defence to the charge and the bearing that has on this review. Those submissions repeated, and in places supplemented, the solicitor’s written response dated 27 September 2017 (given on the applicant’s behalf) to the department’s notice dated 6 September 2017 of intention to cancel his visa. The Tribunal has considered the substance of both those documents. Section 51G(1) of the CA, under which the applicant has been charged, provides that a person commits an offence if he/she knowingly possesses child abuse material. Section 51(g)(2) provides that the offence carries a maximum sentence of 10 years in prison. The applicant submitted to the Tribunal the judge’s bench notes published by the Judicial College of Victoria, which were said to be relevant to the operation of s. 51G of the CA. The bench notes are published on the Judicial College’s website.[15] The bench notes refer to the old s. 70 of the CA. Section 51G is one of a series of sections that succeeded the old s. 70.[16] The bench notes summarise the law relevant to the old s. 70 and the new s. 51G. The bench notes provide that:(a)Intention is an element of the offence that the prosecution must prove beyond reasonable doubt. A person will generally not have an intention to possess material that is automatically downloaded from the internet onto his or her computer;[17](b)This may occur due to the way in which the internet works. When a computer user views an image on the internet, that image will automatically be copied to a "temporary Internet cache", where it will remain until the user deletes it, or until the computer overwrites the image after a certain period of time. If a particular user is unaware of the existence and operation of this cache, he or she cannot be said to intentionally possess the images stored there;[18](c)A person will therefore generally not be guilty of possession of child pornography if s/he simply browses internet sites which contain pornographic images. S/he must intend to possess those images;[19](d)It has not yet been determined in Victoria precisely what the accused must have known about the material in his or her custody or control;(e)It appears likely that the accused will have to have known, or been aware that it was likely, that s/he possessed pornographic images of a minor;[20] and(f)It will be sufficient for the prosecution to prove that the accused once knew that s/he had the relevant material in his or her possession, even if s/he had forgotten about it. This is because a person continues to possess an object s/he has taken possession of, until s/he does something to rid him/herself of it.[21][15] Section 18 of the Crimes Amendment (Sexual Offences) Act 2016 repealed section 70. Under that act, a series of sections replaced the old s. 70 including s. 51G.[17] R v Wescott Vic CC 26/5/2005; R v Bowden [2000] 2 All ER 418; R v Atkins [2000] 2 Cr App R 248; R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145)[18] (R v Smith [2003] 1 Cr App R 13; DPP v Kear [2006] NSWSC 1145)[19] R v Wescott Vic CC 26/5/2005[20] He Kaw Teh v R (1985) 157 CLR 523[21] Police v Kennedy (1998) 71 SASR 175; McCalla v R (1988) 87 Cr App R 372

Decision

Reasons for decision

The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.Decision The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.L. HawasSenior Member

Ratio Decidendi

Legal Principle Established

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