Islam (Migration)

[2018] AATA 5266

Islam (Migration) [2018] AATA 5266 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saiful Islam

CASE NUMBER:  1814685

HOME AFFAIRS REFERENCE(S):           BCC2018/711271

MEMBER:Kira Raif

DATE:7 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

Statement made on 07 December 2018 at 12:06pm

CATCHWORDS
MIGRATION – Subclass 489 – Skilled – Regional (Provisional) visa – cancellation – not a risk to the health, safety or good order of the Australian community – charged with offences – criminal proceedings finalised – offences dismissed – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116(1)(e), 116(1)(g)
Migration Regulations 1994, Schedule 2

CASES

Gong v MIBP [2016] FCCA 561
MZAJA v Minister for Immigration [2017] FCCA 448
Tien v MIMA (1998) 89 FCR

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision dated 17 May 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of Bangladesh born in June 1984. He was granted the Provisional Skilled Regional visa in Subclass 489 on 7 April 2016. In April 2018 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) under s. 116(1)(e) of the Act. The applicant provided a written response to the NOICC and his visa was cancelled on 17 May 2018. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal formed the view that it was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. 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)(g). 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.

5. 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].

6. 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.

7. There is no definition of ‘risk’ in the Act or Migration Regulations 1994 and as such the plain English meaning applies, namely the chance of injury, or loss, or hazard (Macquarie Dictionary, revised 3rd edition, 2001).  The expression ‘may’ connotes something ‘to be possible' (Macquarie Dictionary, revised 3rd edition, 2001). The concept of ‘risk’ entails an element of futurity, and in considering the question of whether a visa holder ‘may’ be a risk within the meaning of s.116(1)(e), 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 (Gong at [41]).

8. As noted in MZAJA v Minister for Immigration [2017] FCCA 448 at [15], the task of the Tribunal in respect of s.116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.

   Does the ground for cancellation exist?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 17 February 2018 the applicant was charged by the NSW police with the following offences:

   ·     Take / detain person with intent to hold to ransom (DV)

   ·     Assault occasioning actual bodily harm (DV)

   ·     Stalk / intimidate intend physical harm (domestic)

   ·     Common assault (DV)

10. In his correspondence to the delegate of 4 April 2018 the applicant states that he has been victimised by his ex-partner and he has no plan to break up the relationship. The applicant notes that he has an ongoing matter in the court and he requested the delegate to wait until the court outcome. The applicant states that his partner intentionally married him to come to Australia. The applicant states that he has been living in Australia for nearly seven years and loves Australia and his future could be ‘dismantled’ by the decision.

11. The applicant provided a further submission to the delegate on 19 April 2018. The applicant refers to the relevant statutory criteria and case law. The applicant states that he was granted bail in February 2018, attended court in April where his bail was maintained and is next due to appear in court in May 2018. One of the conditions of his bail is that he is not allowed to go near or contact his partner. The applicant submits that the fact that his bail was maintained proves that he is complying with this condition and that shows that there is no risk of harm to his partner.

12. At the applicant’s request, the Tribunal adjourned the review to allow the criminal proceedings to be finalised. On 6 December 2018 the applicant provided to the Tribunal the Court Order Notice in relation to the above offences. It shows the following outcome in relation to the charges

    a.Stalk / intimidate   dismissed - not guilty after hearing

    b.Common assault                   dismissed - not guilty after hearing

    c.Assault occasioning ABH      dismissed - not guilty after hearing

    d.Take / detain person              withdrawn / dismissed

13. The Tribunal finds that all the charges that formed the basis of the primary cancellation decision have been dismissed or withdrawn. There is no evidence before the Tribunal of any outstanding charges or of any other conduct that may lead to charges or convictions. In such circumstances, the Tribunal finds that there is no basis for the conclusion 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. The Tribunal finds that the basis for the cancellation has not been made out.

14. The Tribunal is not satisfied that the ground for cancellation in s.116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

15. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 489 - Skilled - Regional (Provisional) visa.

    Kira Raif
    Senior Member